State of Iowa v. Mark Daniel Mash ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1426
Filed September 27, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK DANIEL MASH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Michael Jacobsen,
Judge.
Mark Mash appeals his convictions of first-degree murder and possession
of a firearm by a person convicted of domestic violence. AFFIRMED.
Karmen Anderson, Des Moines, for appellant.
Brenna Bird, Attorney General, and Zachary Miller and Israel Kodiaga,
Assistant Attorneys General, for appellee.
Heard by Tabor, P.J., Buller, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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DOYLE, Senior Judge.
Mark Mash appeals after a jury found him guilty of first-degree murder and
possession of a firearm by a person convicted of domestic violence. He challenges
the jury instructions, the denial of his motion for mistrial, and the admissibility of
text message evidence. He also contends that his first-degree-murder conviction
is unsupported by substantial evidence and contrary to the weight of the evidence.
Finally, Mash contends trial counsel’s deficient representation rises to the level of
structural error, and in the alternative, he asks us to adopt a plain-error standard
to reach the errors his counsel failed to preserve. We affirm Mash’s convictions.
I. Backgrounds Facts and Proceedings.
In December 2020, Mash and his twenty-year-old nephew, Jakob, engaged
in an escalating argument that began when Mash accused Jakob of stealing
several bottles of coolant from his property. Hours of accusatory text messages,
angry phone calls, and scare tactics ended in an exchange of gunfire. Jakob was
struck in the forehead by one of Mash’s bullets and was declared dead when
emergency responders arrived at the scene.
Although there are claims that Mash “bullied” his nephew throughout his
life,1 the roots of the feud took hold that fall while Jakob worked for Mash.
According to Mash, Jakob failed to show up on time so Mash “ended up getting rid
of him.” Mash also believed that Jakob was tampering with his equipment and
1 Mash denies he bullied Jakob. In his words, he “picked on” Jakob to “toughen[]
him up.” Mash explained this is the same behavior that his brothers subjected him
to when they would beat him up “at least once or twice a week” as he was growing
up. In his view, this behavior is part of a normal brotherly relationship. Mash also
testified, “in my family, we usually don’t call the cops. We just show up and beat
on each other. It’s the way we were—that’s the way we grew up.”
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stealing from his property. This led to the deterioration of the relationship between
uncle and nephew as the two “didn’t really talk much” after that.
Things came to a head on December 20, when Mash noticed bottles of
coolant missing from his property and suspected Jakob of stealing them. At
10:20 p.m., he sent Jakob a text message asking if Jakob was “gonna bring back
the stuff that you guys took.” For the next few hours, the two exchanged hostile
text messages in which they insulted, challenged, and threatened each other.
During this exchange of messages, Jakob’s friend, Jackson, drove Jakob
to Mash’s home in rural Dallas County. They slowly drove back and forth on the
road in front of Mash’s house before parking the vehicle down the road and turning
off the headlights. In response, Mash lit clusters of firecrackers and threw them
out his back door.
Hearing what they believed were gunshots from a semiautomatic weapon,
Jackson drove to Jakob’s home, where Jakob retrieved his rifle and put it in the
backseat. At about 1:20 a.m., Jackson drove slowly past Mash’s property again.
Jackson testified that after hearing what he believed were two gunshots fired at
close range, Jakob grabbed the rifle from the backseat, leaned out the window,
and fired a shot.
Mash claims that he was outside retrieving a soda from his vehicle when
Jackson and Jakob returned. Unsure who had been driving past his residence or
how many people were inside the vehicle, Mash testified that he brought a rifle
with him for “protection.” He claims that he was standing near the open back-
passenger door of his vehicle when a bullet passed three or four inches from his
head and shattered the window. Mash testified that he shut the door and either
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ducked down or dove to take cover behind the house. At the same time, with the
soda in his left hand, Mash lifted the rifle waist-high in his right hand and shot three
or four rounds toward the street.
After Jakob fired the rifle, Jackson began driving away. He then noticed
Jakob slumped over with blood trickling from his forehead. Jackson stopped the
vehicle and called 911. Around that time, Mash sent Jakob more text messages,
including one that said: “I win.”
Emergency responders arrived and pronounced Jakob dead at the scene.
An expert in forensic pathology determined that Jakob was killed by a single
gunshot wound to the head.
After exchanging gunfire, Mash made several phone calls. During an
eleven-minute phone call with his father, Mash stated that someone shot at his
property; Mash did not say that someone shot at him or that he shot back. Mash
then called one of his brothers and said that “someone”—Jakob, he thought—“shot
his windows out of his vehicle.” That brother testified that Mash “wasn’t really
upset” during the phone call. And at 2:06 a.m., about thirty minutes after shooting
Jakob, Mash called the non-emergency police dispatch number to report that his
nephew was shooting at his premises. The dispatcher perceived Mash as calm
while reporting the shooting. Mash did not disclose that he had fired a weapon,
and he denied having one.
The State charged Mash with first-degree murder and possession of a
firearm by a person convicted of domestic abuse. A jury found Mash guilty of both
charges, and the court sentenced Mash to life imprisonment without the possibility
of parole and a five-year term of imprisonment, which it ran concurrently.
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II. Jury Instructions.
Mash first contends the court’s instructions to the jury on his use of a deadly
weapon and justification misstate the law. We review challenges to jury
instructions for correction of errors at law. See State v. Coleman, 907 N.W.2d 124,
134 (Iowa 2018). We do not look at an erroneous instruction in isolation; we review
the instructions all together. See id. We reverse an erroneous instruction only
when prejudice results. See id. at 138. Prejudice occurs when the instructions
mislead the jury or materially misstate the law. See id.We begin with Mash’s challenge to the court’s instruction about dangerous
weapons. Instruction No. 26 states, “Malice aforethought may be inferred from
Mark Daniel Mash’s use of a dangerous weapon.” Mash complains that it was
improper to instruct the jury that it could infer malice aforethought from his use of
a deadly weapon because he was justified in using it to defend himself.
The supreme court explained the reason for allowing an inference of malice
from the defendant’s use of deadly weapon in State v. Green, 896 N.W.2d 770,
780 (Iowa 2017).
[I]t is often impossible for a jury to determine a defendant’s state of
mind without the aid of inference. By instructing the jury that it may
infer malice from the use of a dangerous weapon, courts present the
jury with a straightforward example of how the State might prove the
defendant’s culpable state of mind. The inference, which the jury is
permitted but never required to make, exists because a rational juror
could infer that one who uses a dangerous weapon intends to cause
physical harm, and even to kill. If unjustified and unexcused, causing
physical harm or death is a wrongful act, and therefore the intent to
do these things is a state of mind that would constitute malice
aforethought. Thus, the jury may infer the defendant acted with
malice aforethought by using a dangerous weapon, the natural
consequence of which is physical harm or death.
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Green, 896 N.W.2d at 780 (internal quotation marks and citations omitted). As
Mash notes, the court also identified “circumstances where it would not be
appropriate to infer malice.” Id. One circumstance is when “the defendant had
adequate provocation or fear of imminent bodily harm to use the weapon. The
inference would be inappropriate because the defendant’s state of mind was not
malicious, but instead was justified or excused.” Id. (internal citation omitted).
Mash, like the defendant in Green, argues that the malice inference is not
appropriate because he was justified in using deadly force. We reject his argument
for the same reason the court rejected it in Green.
Mash and the State presented the jury with two conflicting theories of the
case. The State claims Mash was acting with malice when he shot and killed
Jakob, while Mash claims he was justified in using deadly force to protect himself.
As in Green, the instructions on both theories accurately state the law and there
was substantial evidence presented at trial in support of them. Id. If the jury
rejected Mash’s justification defense, it could—but was not required to—infer Mash
acted with malice aforethought from his use of a deadly weapon. See id.
Instruction No. 46 explains Mash’s justification defense and the State’s burden to
prove beyond a reasonable doubt that Mash’s use of force was not justified.
Instruction No. 21, the marshalling instruction for first-degree murder, also requires
the State to prove that Mash’s actions were not justified. The jury was left to decide
between the two competing theories and found the State met its burden. We find
no error.
We turn then to Mash’s challenge to the court’s instructions on his
justification defense as it relates to illegal activity. In Instruction No. 48, the court
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informed the jury that Mash’s use of force was not justified if it found the State
proved any of the following beyond a reasonable doubt:
1. Mark Daniel Mash did not have reasonable a belief that it
was necessary to use force to prevent an injury or loss.
2. Mark Daniel Mash used unreasonable force under the
circumstances.
3. Mark Daniel Mash was engaged in an illegal activity in the
place where he used force, he made no effort to retreat, and retreat
was a reasonable alternative to using force.
Mash argued “that the appropriate definition of ‘illegal activity’ would require
a nexus between that activity and the reason for the use of force.” On that basis,
he asked the court to modify the third element in Instruction No. 48 to instead state,
“Mark Daniel Mash was engaged in illegal activity germane to the use of force that
made it necessary to respond with ‘Deadly Force.’”
The prosecutor resisted the language Mash suggested, arguing it was
unnecessary. But the prosecutor also argued that instructing the jury using Mash’s
proposed language was unlikely to change the result:
I think . . . it would be unbelievable to argue that the defendant’s
illegal possession . . . of a firearm was not germane to the fact that
he discharged it at somebody. Again, if the defendant doesn’t
illegally possess a firearm, then we’re not here on a homicide case.
So I’m not sure it makes an extraordinary difference in this case. But
the State does not believe that that germane language is necessary.
The supreme court reached the same conclusion in rejecting a similarly worded
instruction on similar facts in State v. Lorenzo Baltazar, 935 N.W.2d 862, 871 (Iowa
2019).
It is Baltazar’s position the implied duty to retreat involves only
illegal activities germane to the use of force. See [Iowa Code]
§ 704.1(3). Baltazar suggests aggressively threatening or assaulting
a recipient of violence are such qualifying activities. He claims,
however, his possession of a handgun, legal or otherwise, is
irrelevant to the justification issue. We disagree with this assertion.
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Baltazar did not simply possess a handgun in an irrelevant way. He
possessed a handgun in a way that is germane to the use of force.
Baltazar’s own testimony revealed he sought to confront Mercado
and he further admitted using the handgun as assurance to talk with
Mercado and to get his attention. That handgun, which Baltazar later
fired, caused Mercado’s death. Even assuming the implied duty to
retreat involves only illegal activities germane to the use of force,
Baltazar’s possession of the handgun was directly related to the
shooting death of Mercado. In this case, Baltazar’s possession of
the handgun was germane to the use of deadly force.
Lorenzo Baltazar, 935 N.W.2d at 871. Furthermore, the supreme court recently
considered an instruction identical to the one given here. State v. Ellison, 985
N.W.2d 473, 477-78 (Iowa 2023). Despite the “syntactical awkwardness” of the
instruction’s subparagraph 3, the court in Ellison found “it correctly stated the law”
and concluded there was no error in the giving of the instruction. Id. at 479.
Accordingly, we find no error.
III. Mistrial.
Mash next challenges the denial of his motion for mistrial after a State
witness violated the ruling granting his motion in limine. We review the denial of a
motion for mistrial for an abuse of discretion. See State v. Plain, 898 N.W.2d 801,
811 (Iowa 2017). We “only reverse if the district court’s decision rested on grounds
or reasoning that were clearly untenable or clearly unreasonable.” Id. at 816.
The court’s decision to deny mistrial and instead offer a cautionary
instruction is entitled to broad deference. See id. at 815. Usually, a curative
instruction is enough to enable the jury to complete its task without being
improperly influenced by otherwise prejudicial testimony. See State v. Williamson,
570 N.W.2d 770, 771 (Iowa 1997). A mistrial is necessary only when the evidence
was so prejudicial its effect on the jury could not be erased by an admonition. See
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State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). “Cautionary instructions are
sufficient to mitigate the prejudicial impact of inadmissible evidence ‘in all but the
most extreme cases.’” Plain, 898 N.W.2d at 815 (citation omitted).
Mash moved for a mistrial on the third day of the seven-day trial after the
State called his uncle, Martin Seibert, to testify. Seibert, a former Des Moines
police officer, was also Mash’s landlord. Seibert testified that Mash showed him
his .22 semiautomatic rifle when Seibert stopped at the house about three weeks
before the shooting.
Q. Were you aware at that point if he had a domestic abuse
conviction in his past? A. No, ma’am, I did not.
Q. If you had known that, would you have advised him that
he’s not allowed to possess that weapon? A. Yes. In fact, we had
that conversation before when he spent, I believe, nine months in
prison.
Mash objected to the statement as violating the ruling granting his motion in limine.
Part of that motion sought, generally, to prevent the State from offering hearsay
statements contained in the minutes of testimony or any report into evidence.
Mash then specified that “the State should be precluded from offering any
testimony by Martin Seibert that [Mash] allegedly told him ‘he wasn’t going back to
prison.’”
During a conference outside the presence of the jury, Mash’s attorney
explained why a mistrial was necessary:
That very specific prison comment was directly addressed in
my motion in limine. Not just a generic, not bring up criminal history.
I specifically wrote in the motion in limine, Martin Seibert can’t say
Mark’s been to prison. That was—I don’t even believe it was
objected to. But it was granted in the motion in limine.
The way the answer came from the question makes it sound
like Mark did nine months in prison for that domestic assault. The
domestic assault is an element of Count II. It’s actually a
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misdemeanor crime of domestic violence. I don’t know that the jury
necessarily knows what gets you to prison and what doesn’t, but I
think the general public infers if you go to prison, it’s probably a
felony.
And so then if we try to establish this was a misdemeanor
crime of violence, then I think the question for the jury becomes, well,
what did he go to prison on. I don’t know how to rehabilitate this
without opening the door to so many other things that have been
excluded.
This is an extreme case. It’s not a blip that was failed to be
redacted out of a video that just kind of went through. I mean, this
was just the elephant in the room. It was so obvious when it
happened because it was nonresponsive to the question. I was so
shocked, there was a pause before I objected. And then we
approached and we took a break for lunch.
There’s just no way to come back from this, and it makes it
sound like Mark went to prison for nine months—not even just prison,
he had to specify the time—for a domestic violence conviction that
he was specifically told not to talk about. I don’t see how there’s any
way to get around the prejudice Mark has—is subjected to at this
point.
We would ask for a mistrial.
The prosecutor resisted Mash’s motion. She instead asked the court to
caution the jury:
We would ask that the court give a cautionary instruction,
stating that the testimony has been stricken from the record and the
jury is instructed to disregard any reference to the defendant
spending time in prison. I think that mitigates it.
We are in day two of evidence. We have at least three more
this week, and at least one to two more next week. A single isolated
incident, when you look at the entirety of the evidence that’s going to
be presented, is not necessarily enough to cause such an extreme
prejudice to the defendant that the Court should grant a mistrial.
....
I would note that this—this particular statement wasn’t
actually directly addressed in the motion in limine. She did talk about
testimony from Martin Seibert, but that was actually, specifically, that
the defendant told him he was going to kill himself because he wasn’t
going back to prison. That’s the statement that was in the motion in
limine in Paragraph 6.
I also looked at Paragraph 3, talking about alleged prior bad
acts. And that refers to Martin knowing about a prior assault that
Mark did with a baseball bat on someone named Bob. And in the
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section about—in No. 4 about prior convictions, the defense actually
doesn’t talk about Martin Seibert.
So I would just say that that’s actually not—that specific
statement that he made—obviously we didn’t intend for him to bring
that up—but is actually not specifically listed in the motion in limine.
Not that that makes it any better. I’m just saying it’s not actually
listed. I just wanted to point that out.
The court found that Seibert did not intentionally make statements in
violation of its ruling. It instructed the jury to disregard Seibert’s statement and
noted that the jury would be instructed to disregard any evidence stricken from the
record, which it found was curative. The court also offered to give a curative
instruction at the end of trial if Mash requested it.
The trial court based its ruling on State v. Lawrence, 559 N.W.2d 292 (Iowa
Ct. App. 1996). In Lawrence, the trial court granted the defendant’s motion in
limine, in which he sought to exclude testimony about his recent release from
prison. 559 N.W.2d at 293. But during trial, two witnesses made brief references:
During the State’s direct examination of William, inquiry was
made into his phone conversations with police during the hostage
situation. In responding, William mentioned “an officer was talking,
something about prison . . . .” Defense counsel objected and the
prosecutor rephrased his question. The record reflects that outside
the presence of the jury defense counsel requested the statement be
stricken from the record. Counsel then withdrew his request to have
the jury instructed to disregard the statement in order to avoid calling
further attention to the remark.
During the direct examination of Deputy Sheriff Kelly Sutten,
the deputy was asked about the substance of his second phone
conversation with defendant. The deputy responded, “He advised
me that he wasn’t going to go back to the joint—.” Defense counsel
objected and moved for a mistrial based on the cumulative effect of
the testimony of William and the deputy. The motion was denied.
Defense counsel again opted not to have the court issue a cautionary
instruction to the jury. With the approval of defense counsel, the jury
was informed by the court that the answer had been stricken from
the record and to disregard the statement.
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Id. at 293-94. On appeal, this court found the curative actions taken by the trial
court were adequate and the defendant did not meet his burden of showing an
abuse of discretion. Id. at 295.
The supreme court has identified the factors the court must consider in
determining whether a cautionary instruction is enough to mitigate the prejudicial
impact of inadmissible evidence. See Plain, 898 N.W.2d at 816. The first factor
“is whether the ‘defendant [can] combat the evidence without compounding the
prejudice.’” Id. (alteration in original) (citation omitted). The court must also
consider “how extensive the evidence is and the promptness with which it was
addressed.” Id. Finally, it must assess the likelihood of prejudice, bearing in mind
that “the stronger the State’s evidence of [the defendant’s] guilt is, the less
prejudicial the effect of the challenged testimony.” Id.
The district court acted within its discretion by taking curative measures
rather than granting Mash a mistrial. “[W]hen evidence admitted contrary to a prior
court ruling [is] promptly stricken and the jury admonished to disregard it, a mistrial
may be granted only when the matter forbidden is so prejudicial that its effect upon
the jury could not be erased by the trial court’s admonition.” State v. Huser, 894
N.W.2d 472, 498 (Iowa 2017). A brief reference to Mash spending nine months in
prison on the third day of a seven-day trial for first-degree murder was unlikely to
have much effect on the jury. See, e.g., id. at 499-500 (finding three improper
questions during a fourteen-day trial with forty-five witnesses was not “so flagrantly
prejudicial that the district court abused its discretion in denying a mistrial”). Mash
has not met his burden of showing the district court abused its discretion.
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IV. Evidentiary Issues.
Mash contends the court erred by admitting evidence of text messages he
exchanged with others, which comprise exhibits 81 through 85. He notes that with
one exception, none of the people he communicated with testified at trial. Mash
claims the evidence is irrelevant, hearsay, and prejudicial.
Mash sought to exclude the text message exchanges in his motion in limine,
arguing they were irrelevant and hearsay. The State argued the messages were
relevant to show Mash’s state of mind and fell under the hearsay exception as
statements made by a party opponent—Mash himself. The district court denied
the motion but allowed Mash the option to renew his objections during trial. Mash
did so regarding exhibits 82 and 83. Thus, the State concedes that Mash
preserved error on his relevancy and hearsay claims about exhibits 82 and 83. But
because Mash never objected to any exhibit on prior-bad-acts grounds, he failed
to preserve error on that claim. See State v. Rutledge, 600 N.W.2d 324, 325 (Iowa
1999) (“Nothing is more basic in the law of appeal and error than the axiom that a
party cannot sing a song to us that was not first sung in trial court.”).
We generally review evidentiary rulings for an abuse of discretion. See
State v. Tucker, 982 N.W.2d 645, 652 (Iowa 2022). An abuse of discretion occurs
when the trial court exercises its discretion on untenable grounds or to an extent
clearly unreasonable. See State v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017).
But the district court has no discretion to admit hearsay evidence that does
not fall under one of the enumerated exceptions. See State v. Thompson, 982N.W.2d 116, 121 (Iowa 2022). Nor can it deny the admissibility of hearsay
evidence that falls within one of those exceptions. See id. For those reasons, we
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review rulings on the admissibility of hearsay evidence for correction of errors at
law. See State v. Skahill, 966 N.W.2d 1, 8 (Iowa 2021).
With all evidentiary rulings, we only reverse if prejudice occurred. See
Tipton, 897 N.W.2d at 690. But we presume hearsay is prejudicial “unless the
record affirmatively establishes otherwise.” Thompson, 982 N.W.2d at 121
(citation omitted).
Mash contends the text messages were not relevant and included highly
prejudicial. We disagree. Mash claimed he only fired his rifle in self-defense, but
the text messages he exchanged on the night of the shooting indicate a different
state of mind. And the question is not whether the evidence is prejudicial, it is
whether the evidence is unfairly prejudicial. “Evidence is unfairly prejudicial if it
appeals 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 a jury to
base its decision on something other than the established propositions in the
case.” State v. Shanahan, 712 N.W.2d 121, 137 (Iowa 2006) (cleaned up). The
evidence at issue was relevant to whether Mash was justified or acted with malice
aforethought and did not unfairly prejudice him.
V. Sufficiency of the Evidence.
Mash challenges the sufficiency of the evidence supporting his first-degree-
murder conviction. He contends the State failed to prove beyond a reasonable
doubt that his actions were not justified. He also contends there is insufficient
evidence showing he acted with deliberation and malice aforethought.
We review the sufficiency of the evidence for correction of errors at law.
See State v. Lacey, 968 N.W.2d 792, 800 (Iowa 2021). We are “highly deferential”
15
to the verdict and affirm if it is supported by substantial evidence. Id. Evidence is
substantial if it may convince a rational person of the defendant’s guilt beyond a
reasonable doubt. See id. In making this determination, we view the evidence
and all reasonable inferences that can be drawn from it in the light most favorable
to the State. See id. The question is whether the evidence supports the finding
the court made, not whether it would support a different finding. See id.As we noted when discussing the jury instructions, there was evidence
supporting both the State’s theory that Mash acted with deliberation and malice
aforethought in shooting Jakob and Mash’s theory that he only fired at Jakob
because he reasonably believed it was necessary for self-defense. The
determination of Mash’s guilt came down to which evidence the jury believed. It
was free to reject some evidence and credit other evidence. See State v. Nitcher,
720 N.W.2d 547, 556 (Iowa 2006). It could believe some of a witness’s testimony
while rejecting other parts. See State v. Shorter, 945 N.W.2d 1, 10 (Iowa 2020).
“Likewise, the jury is free to credit portions of both sides’ evidence and conclude
the real story is somewhere in the middle.” Id. It is not the appellate court’s job to
resolve conflicts in the evidence, pass on witness credibility, determine whether
explanations are plausible, or weigh the evidence; “such matters are for the jury.”
State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (citation omitted).
Viewing the evidence in the light most favorable to the State, we agree that
the evidence is enough to convince a rational factfinder of Mash’s guilt beyond a
reasonable doubt.
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VI. Weight of the Evidence.
Mash repackages his sufficiency-of-the-evidence argument by alleging the
verdict is contrary to the weight of the evidence on the same bases, challenging
the State’s proof of premeditation and malice aforethought. We review this claim
for an abuse of discretion. See State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).
The question before us is whether the defendant has shown the trial court abused
its discretion in ruling on the motion for new trial. See State v. Reeves, 670 N.W.2d
199, 202-03 (Iowa 2003). An abuse of discretion has occurred if the “court
exercised its discretion on grounds or for reasons clearly untenable or to an extent
clearly unreasonable.” See id. at 202.
To find a verdict is contrary to the weight of the evidence, the court must
find “a greater amount of credible evidence supports one side of an issue or cause
than the other.” Id. (citation omitted). The weight-of-the-evidence analysis is much
broader than the sufficiency-of-the-evidence analysis. Nitcher, 720 N.W.2d at 559.
Unlike in determining the sufficiency of the evidence, a court assessing a motion
for new trial examines the weight of the evidence and weighs the credibility of the
complaining witnesses. See Powers v. State, 911 N.W.2d 774, 782 (Iowa 2018).
Although the district court makes its own credibility determinations under a weight-
of-the-evidence standard, it “may grant a motion for new trial based on the weight
of the evidence ‘only if more evidence supports the alternative verdict as opposed
to the verdict rendered.’” State v. Ernst, 954 N.W.2d 50, 60 (Iowa 2021) (citation
omitted). The court grants a motion for new trial only in exceptional circumstances.
See Ary, 877 N.W.2d at 705.
17
This is not one of the “exceptional cases in which the evidence
preponderates heavily against the verdict.” State v. Ellis, 578 N.W.2d 655, 659
(Iowa 1998) (citation omitted). Because Mash fails to show the district court
abused its discretion in denying his motion for new trial, we affirm.
VII. Cumulative Error.
Finally, Mash contends that his constitutional right to counsel was violated
because his trial counsel failed to provide effective assistance. He claims that
counsel’s failings rise to the level of “structural error.” But Iowa Code section 814.7
(2021) prohibits us from deciding claims of ineffective assistance of counsel on
direct appeal. See State v. Tucker, 959 N.W.2d 140, 159 (Iowa 2021). Thus, we
do not address the individual claims of ineffective assistance or the structural-error
claim that stems from them.
In the alternative, Mash asks us to analyze his claim under a plain-error
doctrine. We cannot. Our supreme court has “repeatedly rejected the plain error
review,” State v. Treptow, 960 N.W.2d 98, 109 (Iowa 2021), and we cannot
overrule its precedent. See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
AFFIRMED.