from the Iowa District Court for Woodbury County, Steven J.
Bishop appeals the judgment and sentence entered after a jury
found him guilty of child endangerment resulting in bodily
C. Smith, State Appellate Defender, and Brenda J. Gohr,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Doyle and Mullins, JJ.
State charged Bryce Bishop with one count of child
endangerment, in violation of Iowa Code section 726.6(1)(a),
(1)(b), and (6) (2016), and one count of serious assault, in
violation of Iowa Code section 708.2(2). Bishop appeals the
judgment and sentence entered after a jury found him guilty
of child endangerment resulting in bodily injury.
contends the trial court failed to apply the correct standard
in ruling on his motion for new trial. Although we generally
review rulings on motions for new trial asserting a verdict
is contrary to the weight of the evidence for an abuse of
discretion, we review a claim that the district court failed
to apply the proper standard in ruling on a motion for new
trial for errors at law. See State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016). In claiming the court applied
the wrong standard to his motion, Bishop relies on three
statements in which the court makes reference to the evidence
supporting the jury's verdict in its oral ruling on the
motion. However, a review of the full ruling shows the court
weighed the evidence and made determinations as to which
evidence it found credible, and it found the credible
evidence supported a finding of guilt on the charge of child
endangerment resulting in bodily injury. Because it applied
the proper standard in denying the motion, we affirm.
also contends his trial counsel was ineffective in failing to
object to the following jury instruction:
You have heard evidence claiming Bryce Bishop made statements
at an earlier time and place. If you find any of the
statements were made, then you may consider them as part of
the evidence, just as if they had been made at this trial.
notes that the instruction is a modified reproduction of the
model instruction,  which we are "slow to disapprove
of." State v. Ambrose, 861 N.W.2d 550, 559
(Iowa 2015). However, he argues there is no authority
requiring the jury to consider out-of-court statements as
bearing the same weight as trial testimony and claims
"the jury should have been free to assign whatever
weight and reliability to the statements as it saw fit."
court has repeatedly rejected similar challenges to this
instruction. See State v. Moore, No. 17-1822, 2019
WL 478236, at *2 (Iowa Ct. App. Feb. 6, 2019) (further review
petition pending); State v. Lopez-Aguilar, No.
17-0914, 2018 WL 3913672, at *8 (Iowa Ct. App. Aug. 15, 2018)
("This court has repeatedly found the challenged
instruction to be a correct statement of the law and
repeatedly rejected the same argument."), further
review denied (Oct. 8, 2018); State v. Garcia,
No. 17-0111, 2018 WL 3913668, at *4 (Iowa Ct. App. Aug. 15,
2018) (finding counsel did not breach an essential duty in
failing to object to the instruction), further review
denied (Nov. 15, 2018); State v. Yenger, No.
17-0592, 2018 WL 3060251, at *4-5 (Iowa Ct. App. June 20,
2018), further review denied (Sept. 13, 2018);
State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5
(Iowa Ct. App. June 6, 2018) ("This court recently held
this instruction correctly states the law and giving the
instruction was not in error." (footnote omitted)),
further review denied (Aug. 3, 2018); State v.
Vandekieft, No. 17-0876, 2018 WL 2727720, at *7-9 (Iowa
Ct. App. June 6, 2018) (finding jury instruction to consider
out-of-court statements "as if they had been made at
this trial" correctly states the law), further
review denied (Aug. 3, 2018); State v. Payne,
No. 16-1672, 2018 WL 1182624, at *9 (Iowa Ct. App. Mar. 7,
2018) ("The instruction did not direct the jury to
assign the statement any particular weight or unduly
emphasize the matter, nor did it create an improper
permissive inference or presumption."), further
review denied (July 23, 2018); State v. Wynn,
No. 16-2150, 2018 WL 769272, at *2-3 (Iowa Ct. App. Feb. 7,
2018) (rejecting claim that instruction was a misstatement of
law and noting it requires no presumption or inference),
further review denied (Apr. 4, 2018); State v.
Wineinger, No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct.
App. Nov. 22, 2017) (concluding instruction was "a
correct statement of law"), further review
denied (Feb. 28, 2018); State v. Tucker, No.
13-1790, 2015 WL 405970, at *3 (Iowa Ct. App. Jan. 28, 2015)
("The district court did not err in its instructions to
the jury."), further review denied (Mar. 25,
2015). We are persuaded by our prior holdings and see no
reason to revisit the issue. Because the instruction is a
correct statement of the law, trial counsel had no duty to
object to it. See State v. Fountain, 786 N.W.2d 260,
263 (Iowa 2010) ("Counsel has no duty to raise an issue
that has no merit."). Bishop cannot show his trial
counsel was ineffective on this basis.