IN THE COURT OF APPEALS OF IOWA
No. 19-2050 Filed May 26, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
BARBARA LEE PASA, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Monroe County, Shawn Showers,
Judge.
Barbara Pasa appeals her convictions for first-degree murder and first-
degree arson. CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee.
Heard by Vaitheswaran, P.J., and Greer and Schumacher. JJ. 2
GREER, Judge.
Firefighters found Tim Pasa deceased in the bedroom of his home engulfed
in flames. Tim was Barbara Pasa’s husband of eighteen years. And the property
burning was the family home they shared with their two teenage children. Fast
forward past the investigation, Barbara was charged and found guilty of first-
degree murder and first-degree arson following a jury trial in September 2019.
After the verdict was rendered, the district court sentenced Barbara to life in prison
without the possibility of parole on the first-degree-murder charge, plus twenty-five
years for first-degree arson. Now, Barbara appeals the district court’s denial of her
motion for new trial, arguing the jury verdict was contrary to the weight of the
evidence. Next, she claims the district court erred by denying her motions for
judgment of acquittal. She also claims the district court erred in sentencing her to
a mandatory minimum term of incarceration, requiring her to serve 70% of her
sentence for first-degree arson before becoming eligible for work release or parole.
See Iowa Code § 902.12(5) (2019).1 Lastly, she claims ineffective assistance of
trial counsel but acknowledges the record lacks support for these claims and asks
they be preserved for postconviction relief (PCR).
1Iowa Code section 902.12(5) provides: A person serving a sentence for a conviction for arson in the first degree in violation of section 712.2 that occurs on or after July 1, 2019, shall be denied parole or work release until the person has served between one-half and seven-tenths of the maximum . . . term of the person’s sentence as determined under section 901.11, subsection 5. (Emphasis added.) 3
I. Factual Background.
Barbara and Tim’s two teenage children left the family house the morning
of May 5, 2018, to catch a bus departing at 6:30 a.m. for a soccer tournament.
O.P., their son, did not see Tim that morning. But the evening before, Tim told
O.P. he wanted to get away from Barbara and would not be attending the
tournament. That morning, Barbara told the children Tim said he was not feeling
well and was sleeping. This left Barbara and Tim alone in the house together. The
time Barbara left the home was disputed. In an interview with law enforcement,
Barbara claimed she left the house by 7:00 a.m., but a neighbor testified she drove
past the Pasa home at roughly 7:22 a.m. and saw Barbara’s car in the driveway.
What is undisputed is around 7:30 a.m., multiple neighbors noticed smoke
emanating from a bedroom window on the east side of the Pasa’s home. The fire
was reported to a 911 operator at 7:33 a.m.
Police officers and firefighting personnel arrived minutes later and entered
the home. They discovered Tim’s severely burned body lying on the right side of
the bed in the master bedroom. When they reached him, it was obvious Tim was
deceased. Per protocol, an investigation into the fire and a forensic autopsy of
Tim’s body commenced.
The fire investigation began when Vern Milburn, Assistant Chief of the
Centerville Fire Department and state certified fire investigator, arrived on the
scene. He provided testimony for the State at trial. After entering the Pasa home
Assistant Chief Milburn noticed several oddities he later described as “red flags.”
First, he did not hear any smoke detectors going off in the home. Neighbors who
arrived before him also did not hear smoke detectors. However, Assistant Chief 4
Milburn discovered two smoke detectors. One on the west side of the home had
its “door” opened rendering it inoperable. Another smoke detector in the hall
leading to the master bedroom was still on the wall, but melted, with the batteries
nearby on the floor. In Assistant Chief Milburn’s experience, typically when a
smoke detector melts “the battery is . . . inside . . . it’s not visible. Once it melts, it
usually just all kind of comes in a big glob and stays together, and it all falls down
together. They usually don’t separate.”
Next, Assistant Chief Milburn noted the highest concentration of fire
damage was in the master bedroom, specifically at the headboard on the right side
of the bed where Tim’s body was found.
In this situation with this bed, we looked at depth of char. So if you look at the headboard, I know it’s hard to see, but if you look at the headboard, you can see on the right side of it all the spindles and everything are completely burnt up. They’re completely gone. As you work your way back to the left, the spindles start getting—the depth that they get—they’re deep in char, but as they start coming back to the left, then they start coming back to more and more to them. So that’s kind of what we look at that kind of brings us back to where the highest concentration of fire probably was.
In trying to locate a fire source, Assistant Chief Milburn observed a candle on the
floor by the left side of the bed in the master bedroom. During the course of the
investigation, Barbara told investigators, friends, and family (sometimes
unprompted) that she believed the candle was the source of the fire, explaining
she had placed it on the left bedside table to cover the smell of dog urine in the
bedroom the morning of the fire.2 Assistant Chief Milburn noted the candle was
2 Barbara explained that the twelve-year-old family dog urinated on the carpeting that morning. Barbara used Febreze, an odor inhibitor product, to mask the smell but also lit a “three wick” candle and placed it on the side table located on the left side of the bed. 5
on its side but the bottom was not blackened from smoke or fire. Additionally, there
was a white round spot the size of the candle bottom on the carpet next to the
candle. This suggested to him that the candle was not on its side when the fire
started.
Assistant Chief Milburn also spoke to Barbara the day of the fire. She said
she left the house around 6:50 a.m. that morning. During that interview, Assistant
Chief Milburn thought Barbara’s demeanor was strangely calm and emotionless
given the loss of her husband. He considered this one of the “red flag” concerns
and noted “[w]hen we talked about red flags, in my years in the fire service, I’ve
had a lot of people that lose their pet in a house fire that is a lot more upset than
what I was getting from Barbara.” Given these “red flags,” Assistant Chief Milburn
contacted Special Agent David Linkletter from the Iowa Department of Public
Safety, State Fire Marshal Division, to help investigate.
Bringing years of fire analysis experience to the scene, Special Agent
Linkletter offered his expertise to develop the cause and origin of the fire. He also
testified for the State at trial. Special Agent Linkletter corroborated Assistant Chief
Milburn’s findings about the two smoke detectors being inoperable. But he mainly
focused on the master bedroom, as it was already established the fire was
centralized there.3 He determined most of the fire damage existed on the right
side of the bed where Tim’s body was found when compared to the left side. The
burn patterns established the flames directly hit the right side of the wall and right
3 Actual fire damage was contained to the master bedroom, although there was smoke damage throughout the home. Special Agent Linkletter determined the fire originated in the master bedroom and ruled out all other areas inside and outside the home as the origin of the fire. 6
side of the headboard. Special Agent Linkletter also ruled out the candle as the
source of the fire:
Q. If a candle were placed on the floor right side up in that circular area with the flame lit, could it have been a possible ignition source? Did you consider it? A. Yes. Absolutely. Q. Did you rule it out? A. Yes. Q. Why? A. Earlier I said the burn patterns can tell us a lot about what burns and also what doesn’t burn. And in this case, at least the circumstance with the candle, we have a wooden structure for the box springs that is very, very close to that area burning on the floor and the candle. If we had an event that started there that really contributed to this fire, it would have burned in that area for a much longer time to cause more heat damage to its immediate surroundings. It wouldn’t have just, you know, traveled from one spot to another. Fire typically stays where it is, and it’s going to consume the things around it. And it’s going to take some time, so it’s going to generate some heat. And so other things while that fire is growing are also going to sustain damage as well.
Testing done on the flooring of the bedroom was inconclusive as to the presence
of any accelerants. Special Agent Linkletter provided extensive testimony at trial,
which boiled down to these conclusions:
Q. So after looking at the scene, getting lab results back from the [Department of Criminal Investigations] . . . looking at everything, considering everything here, were you able to determine the cause of the fire . . . on May 5, 2018? A. We determined the fire originated on the mattress, on the right side of the mattress, based on the burn patterns that we had. It was very apparent to us that that’s where the main source of the fire was. That’s where the fire burned for the longest period of time, and that’s where the fire extended from. Q. So no accidental sources; right? A. That’s correct. Q. Was this a set fire, in your opinion? A. It appeared to us the fire was intentionally set using some sort of open flame in one way or another. Q. And the origin of the fire is in the right side of the mattress? A. Correct.
On cross-examination Barbara’s counsel presented a different theory on the origin
and cause of the fire, again centered on the candle as the source. Special Agent
Linkletter addressed that theory: 7
Q. But there was a candle that was— A. That’s correct. Q. —an inch and a half from the bed railing, wasn’t there? A. That’s absolutely correct. Q. So if the candle that’s an inch and a half from the bed rail catches a blanket or a quilt that might be hanging over the edge on fire, that could be a source of the fire, couldn’t it? A. The burn patterns don’t suggest that. Q. Well, they don’t suggest that because the fire couldn’t grow as fast on this corner of the bed, could it, because it doesn’t have as much oxygen? A. I think if we had significant fire there, we would have had more patterns to suggest that.
In short, Special Agent Linkletter rejected Barbara’s repeated suggestion that the
candle caused the fire. He determined the fire was not accidental, it was set on
purpose.
We now turn to the investigation into the cause of Tim’s death. Dr. Dennis
Klein, the state medical examiner, performed the forensic autopsy on Tim. The
goal of the autopsy was to determine the manner and cause of death. 4 Dr. Klein
had assistance from Dr. William Anderson, a forensic toxicologist, in reaching his
conclusion that Tim’s cause of death was acute propofol intoxication and manner
of death was homicide. Dr. Klein quickly ruled out the fire as a cause of death;
there was no soot or smoke in Tim’s mouth or windpipe and there were negligible
levels of carbon monoxide in his blood. These findings showed Tim died before
the fire. Other than extensive thermal injuries, there were no other signs of
physical injury on Tim’s body. Natural disease was also ruled out. So Dr. Klein
sent a sample of Tim’s blood to the toxicology lab to test for any drugs in his system
that could have caused death. At first he ordered an “expanded panel, which
4 Dr. Klein testified cause of death means “any disease, injury, any poisoning, or any abnormality that ultimately leads to a person’s death.” Manner of death means “a category of death that helps explain how the death occurred . . . Those include natural, accident, suicide, homicide, and undetermined.” 8
includes many of the drugs of abuse that we see in society as well as a number of
prescription-type drugs . . . also drugs that can cause death.” Dr. Klein explained
this was an “inclusive test” because he did not know what to look for. The first
toxicology panel showed nothing unusual that could explain Tim’s death. At this
point Dr. Klein was stumped, so he consulted with the toxicologist, Dr. Anderson.
They decided to test specifically for the nonnarcotic drug propofol.
[O]ver the course of the discussion, we always look for what potential would the person or some other person have access to that would be beyond what our expanded panel is. So we had information that Mr. Pasa’s wife was a surgical nurse or had access to surgical, so that opened up some possibilities. And including in that were some specific drugs, one of them including propofol as well as a couple other medicines that were found—or medicine bottles that were found in the home. We added those to a testing to look specifically for those drugs.
(Emphasis added.)
Dr. Klein explained the nature of propofol and why it must be carefully
administered in a medical setting:
So propofol is a medicine that’s only given intravenously, so that means you need to stick a needle into a vein, and it needs to be infused. It’s a medicine that’s used usually by anesthesiologists, so these are doctors who put people to sleep for surgeries, and it’s a drug that that has to be given in a controlled setting. And what I mean by that, you really need to be in a medical setting that’s prepared for surgery so that you can provide assistance for the person’s breathing, and if they run into problems, you have IV access. Because it’s a drug that will cause problems to people’s blood pressure and breathing if not having these other resources available.[5]
5 In a story familiar to many, pop singer Michael Jackson died “because of a fatal cocktail of medications in his system, most notably an excessive amount of the surgical anesthetic propofol.” Jen Chaney, The full story on Michael Jackson’s tragic death (June 14, 2016), https://www.washingtonpost.com/ entertainment/books/the-full-story-on-michael-jacksons-tragic-death/2016/06/14/ 5d9f74ee-3181-11e6-8758 d58e76e11b12_story.html. 9
(Emphasis added.) The new testing revealed Tim had 0.18 micrograms per
milliliter of propofol in his blood. This was a low level; Dr. Klein said, “In people
undergoing anesthesia, usually it’s on the order of [five] micrograms per milliliter
while they’re asleep, while they’re undergoing surgery.” In other words, the
amount found in Tim’s blood was far less than anesthesiologists use to put a
patient to sleep for surgery and was not a lethal level. Still, Dr. Klein found the
presence of propofol in Tim’s blood significant:
[I]t’s very rare for us to find it in our patient population because it tends to be a drug that’s in a medical setting. Only usually physicians or nurses really have access to propofol. The fact that we have a person who’s outside of a medical setting with propofol, no matter what the concentration is, in the absence of some other explanation for cause of death, is very significant. Part of the reason for doing the autopsy and doing all these other tests is to exclude all other possibilities, and when the only possible cause of death left is propofol, which we know can have a wide range of concentrations in people who have died from propofol, that really leads us very strongly to conclude that this is the cause of death.
Dr. Klein also explained that the low level of propofol in Tim’s blood at the time of
the autopsy was not necessarily indicative of the level when he died.
So propofol eliminates very quickly, within minutes. So it’s possible that his level could have been quite a bit higher at the time of injection and then he becomes what’s called hypoxic, meaning not enough oxygen, because he’s not breathing enough. So that would give time for that drug to be eliminated and then he would die several minutes or a period of time after that injection, but the damage is already done without someone there to provide ventilation, so stick a tube down his throat to provide ventilation for him to survive.
But Barbara argued a joint trial stipulation entered with the State, containing an
opinion of Dr. Anderson, contradicted Dr. Klein’s opinions. And as Barbara told
the jury, “So . . . when the attorney general make a big deal of the fact that the 10
autopsy is performed days later, their own expert says, ‘We don't expect the
propofol level to go down after he’s dead.’”
To address the difficulties in administrating the drug, both the State and
Barbara, attacking from different vantage points, directed the jury to consider an
important question: how could she have administered the fatal dose intravenously
without resistance from Tim, a much larger person? There was evidence that a
large-gauge needle was necessary to inject propofol, and Barbara argued there
was no physical way she could have injected the amount necessary to induce
sleep and ultimately kill Tim. Dr. Klein testified, “I’m trying to figure out how does
someone get propofol into them, and so I wanted to know is there some other drug
that could have been used to cause Tim to be at least unconscious or at least
submissive to the point that propofol could be injected.” While Dr. Klein did not
have a conclusive answer, he identified insulin as a possible substance that could
have rendered Tim unconscious before being injected with propofol. Barbara was
a diabetic, and insulin needles were all over the Pasa home and in her vehicle.
According to Dr. Klein, because insulin needles are small and “[i]t can just be
injected just in the skin without even—it would feel like a mosquito bite, and that
could be injected and someone could become unconscious from low glucose—low
sugar very quickly.” Still, Tim’s blood tests did not detect insulin or drugs of
sedation other than propofol, but Dr. Klein agreed this did not mean insulin or
sedation drugs were not administered. Because of the time it took to rule out other
causes of death, Dr. Klein believed it was possible other substances “could have
all dissipated by the time we got [the results].” 11
On cross-examination, Dr. Klein agreed he could not “rule out” the
possibility that a combination of Tim’s blood-pressure medication6 and propofol
could have lowered his blood pressure to a fatal level. He also agreed people
sometimes use propofol recreationally to help them sleep or to produce a sense of
euphoria.7 Tying the propofol theory back to the fire, Dr. Klein agreed it was
unlikely Tim could have injected himself with the drug and also started the fire.
Overall, Dr. Klein’s testimony demonstrated he firmly believed acute propofol
intoxication was the cause of death and the manner of death was homicide.
As noted, Dr. Klein decided to test for propofol given Barbara’s access to
the drug as a surgical circulating nurse at the local hospital. Dustin Bozwell, a
nurse anesthetist who worked with Barbara, testified about hospital procedure and
staff access to propofol. First, he explained “wasting” procedures, meaning how
leftover drugs are disposed of post-surgery. There are different procedures
depending on a drugs classification as a narcotic or nonnarcotic. Narcotic drugs
are highly regulated and kept in double locked boxes separate from nonnarcotics.
If there are leftover narcotics after a surgery, the amount wasted is first recorded
by the nurse anesthetist. Then a registered nurse inspects the wasted narcotics
to verify the record is correct before signing off. This process is described as a
“two-party system.” Propofol is classified as a nonnarcotic, non-controlled drug
not subject to the narcotic procedures. Bozwell described the wasting procedure
for nonnarcotics at trial:
6 Tim had a slightly high but non-fatal level of amlodipine, a prescribed blood- pressure medication, in his blood at the time of the autopsy. 7 As we discuss later, no evidence suggested Tim used propofol or any other drugs
recreationally. 12
Q. So narcotics have their own system, a two-party system, for wasting? A. Correct. Q. With respect to nonnarcotics, what happens with leftovers? A. With those drugs, then, we have two waste disposals at our disposal. One is a red box, which we put all what we call “sharps,” which would be needles or anything that would have some method of cutting a person. So if it’s a glass vial or if it’s a surgical instrument that is sharp, anything that is sharp goes into the sharp box. All other liquid medications go into a black disposal box that is right next to the red box. Q. We’ll talk about those boxes here in a little bit. Is that system, though, the nonnarcotic waste system, is that a two-party system, or is that a single party? A. That’s just us. Whenever we’re finished with whatever drug—when we know that we’re finished with that, we just throw it into that black box. Q. There’s no accounting for how much is left? A. No.
The lack of accounting procedures for propofol was confirmed by the testimony of
other hospital staff members; the nurse anesthetist would record how much
propofol was wasted before it was tossed in the red or black bins. Other than that
sole record, there was no accounting for the discarded propofol.
The red and black bins for wasted nonnarcotic drugs were in the two main
operating rooms at the hospital. The bins were not emptied until they became full,
at which point a circulating nurse would seal them off and wheel them to a
maintenance closet for disposal. Barbara was a circulating nurse and agreed
removing the bins was one of her job duties. But she claimed she never removed
the bins herself. Bozwell confirmed Barbara’s access to propofol from the
nonnarcotic waste bins, as well as surgical items like sterile needles and syringes.
He also agreed Barbara was not the only hospital employee who had access to
the nonnarcotic waste bins. On cross-examination, Bozwell estimated it may have
taken up to a full twenty milliliter bottle of propofol to put a man of Tim’s size to 13
sleep; but it was not uncommon for a full twenty milliliter syringe of propofol to be
wasted and disposed of in the operating room bins.
Other circumstantial evidence was presented at trial. First, the State
postured a financial motive for Barbara to kill Tim. Other testimony detailed her
behavior after Tim’s death. No one disputed that Tim’s and Barbara’s marriage
was on the rocks by May 2018. Both Tim and Barbara told others about the
likelihood of a future divorce. Over several interactions in April 2018, Barbara told
her friend Sonja Carson she did not think the marriage would last through the
summer. She told Sonja and other friends at a dinner that she “fucking hated Tim”;
she also said she “knew how to get rid of somebody if she wanted to” although she
“could have been” joking according to Sonja. Bethany Ahnen, who considered
Barbara one of her closest friends, testified that Barbara told her a week before
Tim’s death that she wanted the marriage to end. When Bethany advised Barbara
to get a divorce, she responded that she could not afford a divorce. Barbara’s
behavior around the time of the fire and Tim’s death was also a topic of much
discussion at the trial. Multiple friends, coworkers, investigators, and family
members, including Barbara and Tim’s son testified about her behavior and
demeanor. Almost every one of these witnesses described her as acting
unemotional, matter of fact, and stoic. They all considered this unusual given Tim’s
death. Barbara’s niece was at the house the morning of the fire and described
Barbara acting upset and resistant when she found out Tim’s body would undergo
an autopsy. Barbara confirmed as much during her testimony, but claimed she
was only upset because she didn’t want his body “any more cut up.” 14
Barbara admitted at trial that she and Tim had financial difficulties and were
six months behind on their home mortgage payments. She discussed increasing
Tim’s life insurance policy, which she described as a mutual decision, from
$50,000 to $200,000 during an open enrollment period in October 2017. The
policy went into effect in February 2018. Barbara was the beneficiary of the policy,
and she explained the policy was increased mainly so she could afford to cover
the home mortgage if anything happened to Tim. She also said she had tried to
increase her own life insurance policy during the 2017 open enrollment period but
was denied, so increasing Tim’s policy amount was the only way to increase
coverage for the family. Barbara maintained she and Tim decided to increase his
insurance together and that he participated in making the changes by giving
Barbara information from his employer insurance account.
At trial Barbara attacked the evidence against her and postured a different
explanation for Tim’s death. Barbara’s version and theories surrounding the
events of the fire contrast sharply with that of witnesses and investigators. Barbara
contended the more plausible theory as to causation of Tim’s death was the
interaction of propofol with his blood-pressure medication. She points to Tim’s
training as an EMT to suggest he could have handled his own injection and likely
was using the drug recreationally. She also presented evidence that a propofol
injection requires use of a large-gauge needle, causes burning pain,8 and
suggested it would take more than seconds to inject a fatal dose. She tied this
8 Testimony from Dr. Klein and other medical professionals confirmed that propofol injections produce a burning effect and is often given with the drug lidocaine to mitigate the effect. No lidocaine was found in Tim’s blood. 15
back to her theory that it was not possible that she could have injected Tim without
his knowledge or resistance, considering he was much bigger than she. While the
State argued she likely injected insulin or muscle relaxers to knock him out for the
propofol injection, Barbara countered with the lack of toxicology evidence of any
other substance in Tim’s system.
While investigators believed Barbara was the supplier of the propofol, she
offered another possibility to produce juror doubt, urging their next door neighbor,
a nurse anesthetist, supplied Tim with the propofol. As a nurse anesthetist, the
neighbor also had access to propofol. He and Barbara exchanged text messages
at 5:30 a.m. the morning of the fire; because his garage faced the Pasa’s bathroom
Barbara knew when he was leaving his house and would occasionally text him
asking if he was heading to work at the hospital early. Such was the case the
morning of the fire. Although not preregistered, the neighbor purportedly went to
a training seminar but left early and returned to the neighborhood after his wife
alerted him about the fire. The front doors of the house were found open by other
neighbors on the scene right after the fire began. Further, before the public had
knowledge of the presence of propofol, this neighbor mentioned to an investigator
that he heard a “rumor” at the hospital where he and Barbara both worked about
the possibility the drug was involved in Tim’s death. Likewise, this neighbor
testified at trial about his knowledge of the characteristics and administration of
propofol.
As for the source of the fire, Barbara stood by the candle theory. She
surmised that Tim either moved the candle from the left bedside table where she
had placed it to the floor to access his Kindle, or possibly knocked the candle over 16
on accident. She argued the candle made contact with the bedding either by the
dog jumping on the bed or by Tim moving the covers, setting the bed ablaze. To
explain the burn patterns and more extensive damage on the right side of the bed,
Barbara suggested a guitar case found on the upper left-hand corner of the bed
inhibited the supply of oxygen on the left side but that the fire began to rage as it
moved to the right side where Tim’s body was found. As for the disabled fire
alarms, Barbara explained Tim did that because she had been cooking the night
before and burned some food. And she showed investigators a burnt finger during
the interviews.
To create a timeline of Barbara’s movements, Special Agent Don Schnitker
obtained Barbara’s cellphone as part of the investigation and created a searchable
digital record of the phone’s contents. He noted that Barbara sent a text to her
daughter at 7:08 a.m. on May 5, stating she would be a little late to the soccer
tournament.9 The records showed she made no attempt to contact Tim that
morning even after learning about the fire. When Special Agent Schnitker
confronted Barbara about this in an interview she offered no explanation. The
phone records also showed that between 7:3610 and 7:49 a.m., Barbara missed at
least five phone calls from concerned friends and neighbors who heard about the
fire. She began returning calls at 7:51 a.m. and later explained she missed the
calls because of poor cell phone coverage. Investigators also learned Barbara
made a cash withdrawal from a local bank ATM that morning; a video recording
9 Barbara changed her timeline during trial testimony, claiming she must have left the house at 7:08 given her text to her daughter. 10 By 7:36 a.m. neighbors, police officers, and firefighters were on the scene at the
Pasa home. 17
from the bank showed her making the withdrawal around 7:25 a.m.11 The bank
manager who pulled the footage for investigators estimated the drive from the
Pasa home to the bank takes around five minutes, give or take a few minutes. And
the footage from the bank, which is roughly a five-minute drive from the Pasa
home, showed Barbara was there around 7:25 a.m. Special Agent Schnitker
testified there was no evidence Tim used propofol or any drugs recreationally; no
evidence he had enemies or anyone with a motive to kill him; and no history of
violence of any kind.
After the investigation concluded, Barbara was charged with first-degree
murder and first-degree arson in June 2018. Trial began on September 17, 2019,
and lasted one week. After deliberating for roughly three hours, the jury delivered
a verdict finding Barbara guilty of both charges.
II. Standard of Review and Error Preservation.
Barbara first claims the district court erred in denying her motions for
judgment of acquittal, arguing the State presented insufficient evidence for the jury
to convict. The State agrees she preserved error. “We review challenges to the
sufficiency of [the] evidence for correction of errors at law.” State v. Albright, 925
N.W.2d 144, 150 (Iowa 2019).
Next, Barbara claims the district court erred in denying her motion for a new
trial on the basis the jury’s verdict was contrary to the weight of the evidence. The
State does not contest she preserved error. We review a district court’s denial of
11The video footage of Barbara at the bank is timestamped at 7:38 a.m., but the bank manager who pulled the footage testified at trial that the time stamp was twelve or thirteen minutes fast. 18
a motion for new trial for abuse of discretion. State v. Reeves, 670 N.W.2d 199,
202 (Iowa 2003). “Trial courts have broad discretion in passing on motions for new
trial.” State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). Abuse of discretion occurs
when the district court “exercised its discretion ‘on grounds or for reasons clearly
untenable or to an extent clearly unreasonable.’” Id. (citation omitted). “On a
weight-of-the-evidence claim, appellate review is limited to a review of the exercise
of discretion by the trial court, not of the underlying question of whether the verdict
is against the weight of the evidence.” Reeves, 670 N.W.2d at 203.
Third, Barbara and the State agree that her alleged act of first-degree arson
occurred on May 5, 2018, before the July 1, 2019 amendment to Iowa Code section
902.12 creating the mandatory minimum requirements. See Iowa Acts ch. 140,
§ 39. Both parties agree imposing a 70% mandatory minimum here violates ex
post facto principles12 and that Barbara’s sentence should be remanded to the
district court to eliminate the mandatory minimum requirement. A claim of an illegal
sentence is normally reviewed for correction of errors at law. State v. Hoeck, 843
N.W.2d 67, 70 (Iowa 2014). But a constitutional challenge to an illegal sentence
is reviewed de novo. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014).
Finally, Barbara claims she received ineffective assistance from her trial
counsel. Her claims relate to alleged failures of trial counsel in investigating and
presenting her case. Barbara admits she “refers to matters which are not clear
within the record.” She asks that we preserve her ineffective-assistance claims if
12 See U.S. Const. art. I, § 10, cl. 1; Iowa Const. art. I, § 21. 19
we find the record insufficient to resolve them. The State agrees the ineffective-
assistance claims should be preserved for PCR proceedings.
III. Analysis.
A. Sufficiency of the Evidence.
We start with Barbara’s claim that the district court erred in denying her
motions for judgment of acquittal. She argues the State presented insufficient
evidence for the jury to convict her of first-degree murder and first-degree arson.
“In reviewing challenges to the sufficiency of evidence supporting a guilty verdict,
courts consider all of the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence.” State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016) (citation omitted). “A
jury verdict finding of guilt will not be disturbed if there is substantial evidence to
support the finding.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015).
Evidence is substantial if it would “convince a rational trier of fact that the defendant
is guilty beyond a reasonable doubt.” Id. (citation omitted).
We first address the first-degree-murder conviction. The State had the
burden to prove beyond a reasonable doubt that Barbara, having malice
aforethought, did willfully, deliberately, and with premeditation kill Tim. See Iowa
Code §§ 707.1, 707.2(1)(a) (2018). But from a juror’s view, what the State lacked
in direct evidence it more than compensated with substantial circumstantial
evidence of Barbara’s guilt. See State v. Huser, 894 N.W.2d 472, 491 (Iowa 2017)
(noting direct and circumstantial evidence are equally probative). First, Dr. Klein
was clear and unwavering in his belief that Tim’s death was a homicide caused by
acute propofol intoxication. A jury could find that Tim was dead before the fire 20
began. Likewise, the autopsy confirmed the carbon monoxide levels in Tim’s blood
were negligible and no soot or smoke was found in his lungs. There was also no
evidence of any injuries causing death, other than the severe burns covering his
body. Although Tim had an enlarged heart and took medication to treat high blood
pressure, Dr. Klein ruled out a heart attack or other natural causes of death. In
Dr. Klein’s opinion, the presence of propofol in Tim’s blood was highly suspicious
and the only explanation for the cause of death. And it was not disputed that
Barbara had regular access to propofol as a circulating nurse at the hospital, while
Tim did not. The jury was free to reject Barbara’s theory that Tim injected himself
with propofol for recreational use, particularly because there was no history of drug
use shown or an explanation of how Tim would have obtained propofol. As for the
theory that the neighbor-nurse anesthetist might have provided the drug to Tim,
the jury was able to evaluate the neighbor’s creditability as he testified at trial. See
State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) (“Our system of justice vests
the jury with the function of evaluating a witness’s credibility.”). While Barbara
identified theories for the cause of Tim’s death as well, the State offered plausible
counter responses with testimony from experts in their fields. “The jury is not
required to accept the defendant’s version of the events.” State v. Helm, 504
N.W.2d 142, 146 (Iowa Ct. App. 1996); accord State v. Sanford, 814 N.W.2d 611,
615 (Iowa 2012) (“Inherent in our standard of review of jury verdicts in criminal
cases is the recognition that the jury [is] free to reject certain evidence, and credit
other evidence.” (alteration in original) (citation omitted)).
Barbara argues the level of propofol found in Tim’s blood was not enough
to put him to sleep, let alone cause death. This is true; the level of propofol in 21
Tim’s blood was low. That said, Dr. Klein testified the level of propofol in Tim’s
blood by the time of toxicology tests was not necessarily indicative of the level
when he was injected. Barbara counters this by pointing to a joint stipulation
offered at trial in which Dr. Anderson, the toxicologist consulted by Dr. Klein,
stated, “The concentration of [p]ropofol in a person’s blood is not expected to
decrease after death.” But Dr. Anderson’s statement was not inconsistent with
Dr. Klein’s report and testimony, in which he said the concentration of propofol in
a person’s blood would dissipate rapidly after injection and before death.
So propofol eliminates very quickly, within minutes. So it’s possible that his level could have been quite a bit higher at the time of injection and then he becomes what’s called hypoxic, meaning not enough oxygen, because he’s not breathing enough. So that would give time for that drug to be eliminated and then he would die several minutes or a period of time after that injection. . . .
Next, Barbara questions how she could have overpowered Tim and injected
the propofol into his veins. Dr. Klein offered theories as to how Tim could have
been rendered unconscious before the propofol injection, including an injection of
insulin or a sedative drug. Ultimately the State did not have evidence of any other
substance in Tim’s blood that could have rendered him unconscious, although
Dr. Klein said insulin or sedative drugs could have dissipated from Tim’s blood by
the time he ordered toxicology testing. In other words, he believed the lack of
insulin or sedatives in Tim’s blood did not mean they were never present.
Other pieces of evidence bolstered the State’s case. Together with
Dr. Klein’s testimony on the autopsy and toxicology test results, the State raised
Barbara’s financial motive to kill Tim because of money problems and a crumbling 22
marriage. See State v. Blair, 347 N.W.2d 416, 421 (1984) (deliberation and
premeditation can be shown by evidence of a motive). Further, Barbara’s timeline
of events on the morning of May 5 was inconsistent; neighbors saw her vehicle at
the house as late as 7:22 a.m., contradicting her claim that she left by or shortly
after 7:00 a.m. Because the fire was raging by 7:33 a.m., if Barbara left later than
she offered, that left only minutes for the injection of propofol and the start of the
fire to occur.
Pointing to reasonable human behavior, the State discussed Barbara’s
post-fire actions. After learning of the fire, and knowing Tim was ill or asleep in the
home, Barbara never called to check on him. Barbara never explained why she
did not even attempt to contact Tim. Lastly, friends, coworkers, and family,
including her own son, testified about Barbara’s strange lack of emotion after Tim’s
death and found it suspicious.
Ultimately, the jury concluded Tim was murdered and that Barbara was the
killer. We find the evidence, viewed in the light most favorable to the State, is
substantial and more than enough to “convince a rational trier of fact that the
defendant is guilty beyond a reasonable doubt.” Robinson, 859 N.W.2d at 467.
We affirm Barbara’s conviction for first-degree murder.
Barbara also challenges her conviction for first-degree arson. Arson is
statutorily defined as:
Causing a fire or explosion, or placing any burning or combustible material, or any incendiary or explosive device or material, in or near any property with the intent to destroy or damage such property, or with the knowledge that such property will probably be destroyed or damaged . . . whether or not any such property is actually destroyed or damaged. 23
Iowa Code § 712.1. Arson in the first degree occurs “when the presence of one or
more persons can be reasonably anticipated in or near the property which is the
subject of the arson . . . .” Id. § 712.2. Here, Barbara again presents the candle
theory. As we discussed above, her theory that a candle found on the left side of
the master bedroom was the cause and origin of the fire was rejected and refuted
by Special Agent Linkletter, an expert in fire investigations. He concluded the fire
originated on the right side of the bed based on burn patterns and was caused
intentionally by some sort of direct flame on the bedding. This matches the
testimony of Assistant Chief Milburn, the first state-certified fire investigator on the
scene who contacted Special Agent Linkletter after noting multiple “red flags” in
the Pasa home, including smoke detectors rendered inoperable. Viewing the
evidence in the light most favorable to the State, we find substantial evidence
supported the jury’s finding that Barbara set the fire and is guilty of first-degree
arson. We affirm her convictions.
B. Weight of the Evidence.
Barbara next claims the district court abused its discretion denying her
motion for new trial, arguing the jury verdict is contrary to the weight of the
evidence. “Iowa Rule of Criminal Procedure 2.24(2)(b)(6) [(2019)] permits a district
court to grant a motion for new trial when a verdict is contrary to the weight of the
evidence.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “A verdict is contrary
to the weight of the evidence only when ‘a greater amount of credible evidence
supports one side of an issue or cause than the other.’” Id. (citation omitted). The
analysis is broader than the sufficiency-of-the-evidence analysis “in that it involves
questions of credibility and refers to a determination that more credible evidence 24
supports one side than the other.” State v. Nitcher, 720 N.W.2d 547, 559 (Iowa
2006). Yet it is “also more stringent than the sufficiency of the evidence standard
in that it allows the court to grant a motion for new trial only if more evidence
supports the alternative verdict as opposed to the verdict rendered.” Ary, 877
N.W.2d at 706. “[A] district court may invoke its power to grant a new trial on the
ground the verdict was contrary to the weight of the evidence only in the
extraordinary case in which the evidence preponderates heavily against the verdict
rendered.” Id.
In support of her claim the jury verdict was contrary to the weight of the
evidence, Barbara offers the same arguments she makes in her sufficiency-of-the-
evidence claim. For the same reasons we found her arguments on the sufficiency
of the evidence claim unconvincing, we reject her weight-of-the-evidence claim.
We find the district court did not abuse its substantial discretion in denying her
motion for a new trial. The district court could, and did, find the greater amount of
credible evidence weighed heavily in favor of the jury’s conclusion that Barbara,
having malice aforethought, did willfully, deliberately, and with premeditation kill
her husband, Tim. Similarly, the greater amount of credible evidence supports the
jury’s conclusion that the fire at the Pasa home was set intentionally by Barbara,
the only person other than Tim in the house the morning of May 5. This is not a
rare and “extraordinary case where the evidence preponderates heavily against
the verdict.” State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).
C. Sentencing Error.
Barbara claims the district court erred in sentencing her to a mandatory
minimum for first-degree arson requiring her to serve 70% of her twenty-five-year 25
sentence before becoming eligible for work release or parole under Iowa Code
section 902.12(5). Section 902.12(5) provides:
A person serving a sentence for a conviction for arson in the first degree in violation of section 712.2 that occurs on or after July 1, 2019, shall be denied parole or work release until the person has served between one-half and seven-tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 5.
(Emphasis added.) The State agrees that Barbara did not commit an arson on or
after July 1, 2019, so the statute does not apply to her conduct. So to avoid an ex
post facto application, the State urges, “The case should be remanded for entrance
of an order eliminating the mandatory minimum. No new sentencing hearing is
necessary.” We remand with directions to eliminate the mandatory minimum
portion of the sentencing order. See State v. Smith-Berry, No. 19-0839, 2020 WL
2988410, at *4 (Iowa Ct. App. June 3, 2020); State v. Brown, No. 18-1988, 2020
WL 1879686, at *6–7 (Iowa Ct. App. Apr. 15, 2020).
D. Ineffective-Assistance-of-Counsel Claims.
Both Barbara and the State agree on this point—the evidence is not
sufficient to address Barbara’s ineffective-assistance-of-counsel claims. We agree
and preserve these claims for a PCR proceeding. See State v. Zacarias, No. 19-
0838, 2021 WL 1583820, at *10 (Iowa, Apr. 23, 2021) (preserving defendant’s
ineffective-assistance-of-counsel claims for a PCR proceeding to allow an
adequate record to be made and allow the attorney the opportunity to respond to
the claims).
IV. Conclusion.
We affirm Barbara’s convictions for first-degree murder and first-degree 26
arson. We remand only for entrance of an order eliminating the mandatory
minimum portion of her sentence requiring her to serve 70% of her arson sentence
before eligibility for parole or work release. We preserve Barbara’s ineffective-
assistance-of-counsel claims for PCR proceedings.
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,