from the Iowa District Court for Polk County, Jeanie K.
Lopez appeals his conviction for murder in the first degree.
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
by Tabor, P.J., and Mullins and Bower, JJ.
Lopez appeals his conviction for first-degree murder
following the death of his girlfriend's twenty-month-old
child, R.A. Lopez claims six trial errors-two of which focus
on the phrase "to a reasonable degree of medical
certainty" as used by medical experts. First, Lopez
alleges the expert testimony was insufficient to prove he
inflicted R.A.'s fatal injuries. Second, he contends
trial counsel was ineffective for not requesting a jury
instruction defining reasonable degree of medical certainty.
Third, he alleges counsel was ineffective for not objecting
to prior-bad-acts evidence. Fourth, he argues the district
court should have allowed the jury to hear he was willing to
take a polygraph. Fifth, Lopez insists the district court
should have excluded the medical examiner's
manner-of-death testimony. And sixth, Lopez asserts the
prosecutor improperly invoked the "product rule" in
sufficiency claim, when viewed in the light most favorable to
the verdict, the evidence presented by the State's
experts-combined with other circumstances-allowed the jury to
find Lopez guilty beyond a reasonable doubt. On the first
ineffective-assistance claim, we find counsel had no duty to
ask for a novel instruction defining a reasonable degree of
medical certainty. We preserve the second claim, concerning
prior bad acts, for further development in an action for
postconviction relief. We find no abuse of discretion in the
district court's exclusion of Lopez's willingness to
take a polygraph test or admission of the medical
examiner's opinion on R.A.'s manner of death.
Finally, Lopez failed to demonstrate he was prejudiced by the
prosecutor's statements in closing argument. Finding no
reversible error, we affirm the first-degree murder
Facts and Prior Proceedings
fall of 2014, Lopez moved into the basement apartment of a
house in Clive with his girlfriend, Nisa. She lived there
with her three children-ages eight, four, and not quite two.
R.A. was her youngest.
had flu symptoms the week of Thanksgiving 2014. When the
family ate a turkey dinner on Thursday, November 27, the
toddler "nibbled a little bit and then she ended up
throwing up." Nisa recalled R.A. was "very
quiet" on Friday and fell asleep on the couch.
to Lopez, around 2:00 in the morning on Saturday, November
29, he was asleep in Nisa's bedroom when he heard R.A.
crying. Lopez later told detectives he picked up R.A. from
the mattress where she was sleeping with her brothers and
took her to the kitchen. He said he gave her water and a
piece of leftover turkey. Lopez recounted leaving R.A. in her
highchair while he went to the bathroom, the door slightly
said, while in the bathroom, he "heard a smack on the
floor." According to his interview, he returned to the
kitchen, where he saw R.A. lying on the floor next to her
highchair. Lopez said he saw a bump on R.A.'s head. Her
eyes were rolled back, and she was gasping for air. Lopez
woke Nisa, telling her they needed to rush R.A. to the
recalled when Lopez woke her, R.A. already had her coat and
boots on and was not making any sounds, and Lopez looked
worried. Nisa felt a bump on the back of R.A.'s head.
Lopez drove Nisa and R.A. to the hospital. While on the way
to the hospital, Lopez told Nisa:
R.A. woke up crying and that he went in the room and picked
her up and took her to the kitchen and sat her down on her
highchair and gave her a couple pieces of turkey, and he went
to the restroom, and . . . right when he sat down he heard a
arriving at the hospital, Lopez took R.A. inside while Nisa
parked the car. Lopez informed emergency room staff R.A. fell
out of her highchair. R.A. was non-responsive and struggling
to breathe on her own. Emergency-room staff intubated her and
began assembling a team of physicians to treat her.
on-call trauma surgeon, Dr. Richard Sidwell evaluated R.A.
when she arrived at the hospital. Dr. Sidwell described the
back of her head as "boggy, and that means swollen,
squishy." He further observed
a skull fracture toward the back of her head, a skull
fracture, and then within her skull, injury to the brain
itself, so that's hemorrhage around the brain and
creating pressure on the brain. So we knew about her severe
Also after evaluation, the initial evaluation, we knew that
she had at least four rib fractures. She had fractures of
ribs one and two on both sides. Those are the injuries, in
addition to a bruise on her head and a scrape on her chin.
Those are the injuries that we knew about after her
evaluation in the emergency room.
examining R.A., Dr. Sidwell spoke with Lopez and Nisa. Lopez
repeated his version of events, but Dr. Sidwell was
skeptical. During the State's direct examination, Dr.
Sidwell opined, "[H]er injury situation is very
suspicious for a nonaccidental trauma, meaning she didn't
just accidentally fall out of a high chair."
Sidwell called in neurosurgeon John Piper to join R.A.'s
trauma team that morning. Dr. Piper also evaluated R.A. in
the emergency room. His primary concern centered on the fact
R.A. "was in a very deep coma and was having problems
breathing spontaneously." R.A.'s trauma team ordered
scans to identify potential head injuries.
to Dr. Piper, the preliminary scans demonstrated
evidence of hemorrhage around the surface of [R.A.'s]
brain or in the spinal fluid spaces. None of those
hemorrhages were large where we could go in and maybe help
with the pressure. They were very thin little layers of
blood, but there were many areas of hemorrhage that we could
asked by the prosecutor whether R.A.'s injuries were
consistent with falling from a highchair, Dr. Piper
responded, "No, they were not." He elaborated,
[W]e see people all the time that fall out of high chairs or
shopping carts, and of those people that we see, it's
probably far less than ten percent of them that actually have
found to have an injury at all. And of the injuries that they
do have, typically they're very, you know, more mild.
There are people who have maybe just a tiny little spot of
blood or a small crack in the bone . . . . So her condition
was way worse than the typical condition someone would have
from a simple fall.
Piper was even more alarmed after reviewing R.A.'s
autopsy and learning she suffered axonal tears:
[A]xonal injury is different because axonal injury tells us
that there have been forces that are different than just a
simple fall. It implies that there's either flexion,
extension, and rotation that occurs to the head because those
fibers-what "axonal" means is that the fibers
called the axons of the nerve are sheared, so a certain
number of them will be lost from that shearing motion. So it
implies something much more than just a simple . . . fall.
It is seen most commonly in patients literally that are
thrown out of vehicles in an accident. So if someone is
driving sixty miles an hour and they hit a structure and are
thrown through the windshield and tumble and roll literally
sixty to a hundred feet sometimes away from their vehicle,
those people will oftentimes come in with the shear injury.
So it's usually associated with very severe injuries that
involve a rapid back and forth movement or rotational
movements. So it's something you just don't see from
radiologist Bradley King reported for his shift the morning
of November 29, he found the overnight radiologist had
already performed scans of R.A.'s head and cervical
spine. When reviewing those images, Dr. King noted additional
posterior medial rib fractures. Dr. King testified,
"Posterior medial rib fractures are considered to be a
classic sign of child abuse."
State asked the radiologist if he could delineate a timeline
of the injuries he saw through imaging. Dr. King said he
assumed fractures were acute unless otherwise noted,
"which means if I had seen a fracture that was in a
state of healing or I felt that the fracture was old, then I
would have noted that in my report." Because he saw no
signs of healing, he opined the rib fractures occurred within
"probably a week or less."
Kenneth McCann examined R.A. in the afternoon on November 29.
Dr. McCann, a child abuse specialist, also reviewed
R.A.'s chart and spoke with Nisa. After his consultation,
Dr. McCann concluded R.A.'s injuries were inconsistent
with falling from a high chair.
R.A's autopsy provided Dr. McCann additional insight. The
autopsy revealed mesentery bruising. Dr. McCann testified,
"[R.A.] had two C-shaped bruises on her abdomen. And we
know abdominal bruising is a high red flag for bruising
deeper down. So that sort of puts two-and-two together in my
McCann testified regarding the timing of R.A.'s injuries.
He described the skull fracture as "acute, immediately
symptomatic. The minute that happened she would be
unconscious." He also confirmed R.A. had "fresh rib
fractures." But Dr. McCann did not "feel
comfortable" saying "the ribs had to have happened
at the same time as the skull fracture."
in the week, radiologist Brent Steinberg joined R.A.'s
trauma team. Acting as a fresh set of eyes, Dr. Steinberg
reviewed R.A.'s images. Like the two other radiologists,
Dr. Steinberg believed R.A.'s injuries were caused by
"potential nonaccidental trauma." In reaching that
opinion, he considered (1) the complexity of the skull
fractures, (2) the quantity of blood between the brain and
skull bone, and (3) the number of rib fractures. To him, the
rib fractures were the most telling injury because of the
significant force necessary to break the first and second
ribs. He also noted the fractures were equidistant from the
spine, which "is unusual to have in anything other than
nonaccidental trauma." According to Dr. Steinberg, the
mechanism usually causing this type of rib fracture is
"an excessive hard squeeze."
days after R.A.'s hospital admission, the doctors tried
to keep her stable but soon realized her brain swelling was
"bad enough that it would be a fatal situation without a
drastic intervention." That drastic intervention was a
decompressive craniotomy. But the procedure was ultimately
unsuccessful. On December 3, 2014, R.A. succumbed to her head
days later, Polk County Medical Examiner Gregory Schmunk
performed R.A.'s autopsy. He described R.A.'s
mesentery injury as "not more than several days, maybe
out five to seven days, old." He concluded,
"[F]alling from a highchair onto your back-the history
was that she was found on her back facing up-would not cause
this type of an injury." Dr. Schmunk estimated the rib
fractures were less than one week old at the time of the
autopsy. Dr. Schmunk attributed the injuries to "an
abusive act, a physical squeezing of the chest by another
person, certainly an adult." Dr. Schmunk certified the
cause of R.A.'s death as craniocerebral trauma-in other
words, "injury to the brain and skull." Dr. Schmunk
testified "within a reasonable degree of medical
certainty" he determined the manner of death was
"homicide or the act of another person on her."
January 2015, the State charged Lopez with first-degree
murder and child endangerment resulting in death. His first
jury trial ended in a mistrial. After the second trial, the
jury returned guilty verdicts on both counts. The district
court entered judgment for first-degree murder, sentencing
Lopez to life imprisonment.Lopez appeals.
Scope and Standards of Review
review challenges to the sufficiency of the evidence for
correction of errors at law. State v. Schlitter, 881
N.W.2d 380, 388 (Iowa 2016) (citing State v.
Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013)). We review
evidentiary rulings for an abuse of discretion. State v.
Tyler, 867 N.W.2d 136, 152 (Iowa 2015) (citing State
v. Elliot, 806 N.W.2d 660, 667 (Iowa 2011)). Likewise,
we review the district court's ruling on Lopez's
objection to the prosecutor's closing argument for an
abuse of discretion. See Coleman, 907 N.W.2d at 134.
We review of ineffective-assistance-of-counsel claims de
novo. Schlitter, 881 N.W.2d at 388 (citing State
v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015)).
To A Reasonable Degree of Medical Certainty
cause of death emerged as the fighting issue at Lopez's
trial. To prove causation, the State called six doctors. The
defense answered with two of its own medical experts. Of the
eight total doctors, seven testified they were giving their
opinion "to a reasonable degree of medical
certainty." Four of those seven witnesses offered a
definition of "a reasonable degree of medical
mentioned in our opening paragraph, this phrase is central to
two of Lopez's appellate issues: (1) the sufficiency of
the evidence and (2) trial counsel's failure to request a
jury instruction. Before addressing those issues, we briefly
explore the legal concept of "a reasonable degree of
legal lexicon, it means "[a] standard requiring a
showing that the injury is more likely than not caused by a
particular stimulus, based on the general consensus of
recognized medical thought." Reasonable Medical
Certainty, Black's Law Dictionary (10th ed.
2014). But legal scholarship has documented the lack of an
"agreed-upon meaning" for the phrase
"reasonable degree of medical certainty." See,
e.g., Lucy Johnston-Walsh et. al., The Unreasonably
Uncertain Risks of "Reasonable Medical Certainty"
in Child Abuse Cases: Mechanisms for Risk Reduction, 66
Drake L. Rev. 253, 255 (2018) ("[T]here is a range of
meanings attributed to this phrase by attorneys, judges, and
testifying witnesses, is a high risk of expert testimony
being misinterpreted with potential false convictions or
improper exonerations in child abuse cases.").
jurisdictions, courts have struggled with the evidentiary
standard for the admissibility of medical testimony. See,
e.g., Dallas v. Burlington Northern, Inc., 689
P.2d 273, 277 (Mont. 1984) ("Although we still formally
adhere to a 'reasonable medical certainty' standard,
the term is not well understood by the medical profession.
Little, if anything, is 'certain' in science. The
term was adopted in law to assure that testimony received by
the fact finder was not merely conjectural but rather was
sufficiently probative to be reliable. We are striving for,
what in fact, is a probability rather than a
possibility."), superseded by statute, 2011
Mont. Laws 618, as recognized in Ford v. Sentry Cas.
Co., 282 P.3d 687 (Mont. 2012); Bara v. Clarksville
Mem'l Health Sys., Inc., 104 S.W.3d 1, 5 n.1 (Tenn.
Ct. App. 2002) (decrying use of "magic words").
Other jurisdictions have embraced the meaning of the phrase.
See, e.g., Clifford v. United States, 532
A.2d 628, 640 (D.C. 1987) ("This standard of
'reasonable' medical certainty, reflects ...