State of Iowa v. Trevor Joe Howland

IN THE COURT OF APPEALS OF IOWA
No. 22-0519
Filed May 24, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TREVER JOE HOWLAND,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Christopher C.
Polking (motion for in camera review) and Jennifer Miller (motion in limine and
trial), Judges.
Trever Howland appeals his convictions for sexual abuse in the second
degree. AFFIRMED.
Angela Campbell of Dickey, Campbell, & Sahag Law Firm, PLC, Des
Moines, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Ahlers, P.J., Chicchelly, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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AHLERS, Presiding Judge.
The State charged Trever Howland with multiple counts of sexual abuse in
the second degree1 based on allegations that he performed sex acts on his former
girlfriend’s daughter when the daughter was around five years old. A jury found
Howland guilty of three counts. The district court sentenced Howland to a prison
term not to exceed twenty-five years for each count, with the terms to be served
concurrently. Howland appeals his convictions. He raises multiple issues, which
we will address separately with additional facts provided as needed.
I. Sufficiency of the Evidence2
Howland contends there was not sufficient evidence to support his
convictions. Sufficiency-of-evidence claims are reviewed for correction of errors
at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). Jury verdicts bind
us if they are supported by substantial evidence. Id. Evidence is substantial if it
is sufficient to convince a rational factfinder that the defendant is guilty beyond a
reasonable doubt. Id. In assessing whether evidence is substantial, “we view the
evidence in the light most favorable to the State, including all ‘legitimate inferences
1 See Iowa Code §§ 709.1, .3(1)(b) (2014).
2 Section VII of Howland’s brief asserts “the verdict is contrary to the law and the
evidence” by claiming the evidence is insufficient to support his convictions with
references to the weight of the evidence. These are two distinct inquires, and the
sufficiency claim implicates double jeopardy. Because success on the sufficiency
challenge would require us to remand for judgment of acquittal and end our inquiry,
we start our analysis with that issue. With respect to his weight-of-the-evidence
references and request for new trial, he does not claim the court abused its
discretion in denying his motion for new trial on this basis or claim the court applied
the incorrect standard in ruling on the motion for new trial. See State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016). So there is nothing for us to review with respect to
the weight of the evidence.
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and presumptions that may fairly and reasonably be deduced from the record
evidence.’” Id. (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
Howland argues that the evidence is insufficient because it is based entirely
on the child’s testimony. He contends the child’s testimony is insufficient to support
the convictions because her testimony was not corroborated, her story changed,
and her testimony is unbelievable because she testified years later to events that
happened when she was as young as three years old.
We make quick work of Howland’s lack-of-corroboration argument. Stated
simply, corroboration of a victim’s testimony is not required. Iowa R. Crim.
P. 2.21(3) (“Corroboration of the testimony of victims shall not be required.”); State
v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (stating that “the alleged victim’s
testimony is by itself sufficient to constitute substantial evidence of defendant’s
guilt,” and observing that “[t]his court has held that a rape victim’s accusation need
not be corroborated by physical evidence”). So Howland’s claim of error based on
lack of corroboration fails.
Howland’s arguments based on claimed changes in the child’s story and
the quality of her memory from years before are credibility arguments properly
made to the jury. The jury rejected them by returning a guilty verdict. Howland
urges us to accept them on appeal. But doing so would be “inconsistent with the
standard of appellate review of jury verdicts, which requires that the evidence be
viewed in the light most favorable to the verdict and which requires deference to
the jury’s resolution of disputed factual issues.” State v. Mathis, 971 N.W.2d 514,
518 (Iowa 2022). When evaluating sufficiency-of-the-evidence challenges, we do
not resolve conflicts in the evidence, pass upon the credibility of witnesses,
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determine the plausibility of explanations, or weigh the evidence, as such matters
are for the factfinder to determine. State v. Musser, 721 N.W.2d 758, 761 (Iowa
2006).
Sticking to our obligation to view the evidence in the light most favorable to
the verdict and not weigh the evidence, we find the evidence sufficient to convince
a rational factfinder that Howland is guilty beyond a reasonable doubt. See
Crawford, 972 N.W.2d at 202. Therefore, we reject Howland’s challenge to the
sufficiency of the evidence.
II. Access to Privileged Records
Prior to trial, Howland filed a motion requesting an in camera review by the
court of the child’s therapy records. The district court denied the motion. Howland
asserts the court erred in denying the motion. As there is no constitutional
challenge to this discovery ruling, we review it for abuse of discretion. See State
v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).
In deciding whether the court abused its discretion by not conducting an
in camera review of the child’s therapy records, we look to Iowa Code
section 622.10 (2021). “Iowa Code section 622.10 generally prevents a mental
health professional from disclosing ‘any confidential communication properly
entrusted to the person in the person’s professional capacity’ associated with the
patient’s treatment.” State v. Retterath, 974 N.W.2d 93, 98 (Iowa 2022) (quoting
Iowa Code § 622.10(1)). There are two exceptions to this general rule: (1) if the
holder of the privilege waives privilege or (2) if the records are “likely to contain
exculpatory information that is not available from any other source and for which
there is a compelling need for the defendant to present a defense in the case.”
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Iowa Code § 622.10(4)(a)(2)(a). “If the defendant satisfies the threshold showing
for the second exception, the district court must review the records ‘in camera’
(privately, without the parties present) to determine whether the records contain
exculpatory information.” Retterath, 974 N.W.2d at 99. The child did not waive
privilege in this case, so the only exception in play is the second.
Howland asserts that he met the threshold showing needed to trigger the
district court’s obligation to review the child’s therapy records. He bases this
assertion on his theory of defense, which was to undermine the child’s credibility
by showing (1) Howland was not the only paramour of the child’s mother during
the time Howland is alleged to have committed the sexual abuse; (2) the child
appeared to have suffered trauma as a result of her mother’s mental-health issues,
instability, and inability to parent the child; and (3) the child has a propensity for
confusion or untruthfulness.
Howland fails to establish any meaningful nexus between his defense
theories and the child’s therapy records. See Thompson, 836 N.W.2d at 490
(finding the defendant failed to make the necessary showing to gain access to the
alleged victim’s records because he offered “no evidence showing a nexus
between the issues at trial and the mental health treatment received by [the alleged
victim]”). We address each of his defense theories in turn.
As to his first claim that the mother had other suitors, there is no evidence
suggesting the child knew of any other suitors or confused them as being her
abuser rather than Howland. With this lack of evidence, there is no reasonable
probability that the child’s therapy records would contain exculpatory information.
See Iowa Code § 622.10(4)(a)(2)(a) (requiring a defendant to demonstrate “a
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reasonable probability that the information sought is likely to contain exculpatory
information”). Further, to the extent Howland is simply seeking information as to
the identity of other men, he has failed to demonstrate that such information is not
available from any other source. See id. (requiring a showing that the information
sought in the otherwise confidential records “is not available from any other
source”).
As to his second claim that the child suffered trauma as a result of her
mother’s issues, there is little question that the mother had dysfunction in her life,
which may have negatively impacted the child. However, we fail to see how the
mother’s dysfunction and any resulting harm to the child leads to the reasonable
probability that the child’s therapy records would show Howland did not sexually
abuse the child. Without a showing of such reasonable probability, Howland was
not entitled to a review of the records. See id. We also note that, if this claim was
enough to meet the threshold necessary to trigger an in camera inspection, it would
effectively eliminate the protections provided by section 622.10(4) because all that
would be needed to trigger the review would be proof that the person has
undergone therapy. We decline to interpret the section so broadly as to negate its
purpose of protecting the confidentiality of records. See State v. Leedom, 938
N.W.2d 177, 189 (Iowa 2020) (“We reiterate the ‘importance of maintaining
confidentiality in mental health treatment.’” (quoting State v. Edouard, 854 N.W.2d
421, 441 (Iowa 2014))); Thompson, 836 N.W.2d at 481 (finding the legislature’s
purpose in adopting section 622.10(4) was to “restore[] protection for the
confidentiality of counseling records while also protecting the due process rights
of defendants”).
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As to Howland’s third claim that the child has a propensity for confusion or
untruthfulness, there is simply no evidence supporting this claim, let alone
evidence that demonstrates a reasonable probability that proof of such propensity
would be found in the child’s counseling records. The lack of evidence supporting
Howland’s claim lies in sharp contrast to the evidence in another case in which our
supreme court found evidence sufficient to trigger an in camera review. In
Leedom, the defendant was accused of sexually abusing his granddaughter. 938
N.W.2d at 181. The granddaughter’s parents were fighting for custody over her,
and the granddaughter admitted having lied about the details of her father’s vehicle
accident in an effort to secure her preferred placement with her father. Id. at 187.
Additionally, the granddaughter testified that she had disclosed the abuse to her
therapist. Id. at 187. Because the therapist was a mandatory reporter, had the
granddaughter disclosed the abuse, the therapist would likely have been required
to report it. Id. at 187–88. Thus, a review of the records had a reasonable
probability of showing that the granddaughter made no such report, so her
testimony that she had made the report would be contradicted by the records. Id.
at 188. Based on these considerations, the supreme court concluded the
granddaughter’s mental-health records should have been reviewed in camera by
the district court because the defendant’s request to access the records “was a
targeted inquiry rather than a fishing expedition.” Id.
Unlike in Leedom, Howland points to no specific evidence that there was a
reasonable probability that the child’s therapy records would contain exculpatory
evidence. Under the circumstances here, we view Howland’s request for an in
camera review to be a fishing expedition prohibited by the statute rather than a
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targeted inquiry permitted by it. We find no abuse of the district court’s discretion
in declining to conduct such review.
III. Vouching
By pretrial motion in limine, Howland sought to prevent a forensic
interviewer from testifying about her interview of the child, asserting that such
testimony would constitute improper vouching for the credibility of the child. See
State v. Dudley, 856 N.W.2d 668, 676–78 (Iowa 2014) (prohibiting testimony that
comments on another witness’s credibility, as such testimony would constitute
improper vouching for the other witness’s credibility). The court denied the motion,
and the expert testified. She testified that she had interviewed the child but gave
no details about the interview. When asked whether she was there to testify about
the substance of the interview or the credibility of any witness, the expert replied,
“No, I’m not. I’m not allowed to.” The expert went on to testify about common
misconceptions people may have about child sex abuse, but such testimony was
limited to the behaviors of child-sex-abuse victims generally, rather than to the
child involved in this case.
Howland contends the expert’s testimony was improperly admitted for two
reasons. First, he asserts the expert’s testimony that she was “not allowed to”
testify about this child’s credibility was an indirect comment on the child’s credibility
because it suggested that, if she had been allowed to do so, she would have told
the jury she found the child credible. Second, Howland contends the expert
improperly tailored her testimony about the behaviors of child-sex-abuse victims
generally to fit the facts known to her based on her interview of the child.
Specifically, Howland objects to the expert testifying that child-sex-abuse victims
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frequently delay reporting the abuse and that it is common for the abuse victim to
be willing to be around the abuser, especially if the abuser plays a disciplinary role
in the child’s life, as both of these behaviors were behaviors exhibited by the child
in this case.
While the State challenges error preservation, we find Howland adequately
preserved error via pretrial motion and objections lodged at trial. We review
admission of claimed vouching evidence for an abuse of discretion. State v.
Brown, 856 N.W.2d 685, 688 (Iowa 2014). An abuse of discretion occurs when
the district court exercises its discretion on grounds or for reasons that are clearly
untenable or unreasonable. Id.“[W]hen an expert comments, directly or indirectly, on a witness’s credibility,
the expert is giving his or her scientific certainty stamp of approval on the testimony
even though an expert cannot accurately opine when a witness is telling the truth.”
Dudley, 856 N.W.2d at 677. In our court system, “[i]t is the jury’s function to
determine if the victim is telling the truth, not the expert witness’s.” Id. “We need
to break down each statement [the defendant] claims as objectionable to
determine whether the State crossed the line.” Id. at 678.
As to Howland’s contention that the expert’s testimony that she is “not
allowed to” to testify about the substance of the interview or credibility of a witness
constituted vouching, we find no abuse of discretion in permitting the testimony.
While this testimony could be viewed in the nefarious way suggested by Howland,
he points to no place in the record where the State used it for that improper
purpose. The statement can just as easily be viewed as a simple statement of
fact—the expert is, in fact, not allowed to comment on another witness’s credibility.
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See, e.g., State v. Vandekieft, No. 17-0876, 2018 WL 2727720, at *5 (Iowa Ct.
App. June 6, 2018) (noting the expert “acknowledged she interviewed [the child]
but stated she would not give an opinion on the credibility of [the child]” in rejecting
vouching challenge). We find no abuse of discretion in permitting this testimony.
As to Howland’s complaint that the expert’s testimony about the behavior of
child-sex-abuse victims in general coincided with the behavior exhibited by this
particular child, we find no abuse of discretion in admitting the testimony. An expert
is permitted to testify in generalities about behaviors of sexually-abused children.
State v. Jaquez, 856 N.W.2d 663, 666 (Iowa 2014). The admittedly thin line into
impermissible vouching is crossed if the expert testifies that the behavior of the
complaining witness comports with the behavior of sexually abused children. See
Dudley, 856 N.W.2d at 677 (“To allow an expert witness to testify a child’s physical
manifestations or symptoms are consistent with sexual abuse trauma . . . allows
the expert witness to indirectly vouch that the victim was telling the truth because
the expert opines the symptoms are consistent with child abuse.”). That line was
not crossed here, as the expert’s testimony remained limited to generalities.
Finding no abuse of discretion, we reject Howland’s challenges based on
claimed improper vouching by the State’s expert.
IV. Testimony of the Child’s Mother
The child’s mother testified at trial. Howland challenges the admission of
three pieces of her testimony.
A. Statements Made by the Child to the Mother
Over Howland’s hearsay objection, the court permitted the mother to give
the following testimony:
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Q: And could you tell the jury what [the child] told you in that
first disclosure to you?
....
A: We were bathing my [other daughter], and she had said
that they were talking about inappropriate touching and stuff at
school and that she had something to tell me. And we went into my
room to get [my other daughter] dressed and stuff. And she said that
she needed to tell me something that happened to her so I shut the
baby monitor off in the living room because all the other kids were
out there. And she told me that [Howland] made her suck on his—
and she could only get that out, and we were crying. And she said
that he also touched her.
Howland claims error in the admission of this testimony as it is hearsay. We review
evidentiary rulings based on hearsay for errors at law. State v. Thompson, 982N.W.2d 116, 121 (Iowa 2022).
Hearsay is an out-of-court statement offered “into evidence to prove the
truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c). Hearsay is
not admissible at trial unless an exception applies. See Iowa R. Evid. 5.802.
Here, there is no dispute that the statement is hearsay. The dispute is
whether an exception applies. The State relies on the excited-utterance exception.
See Iowa R. Evid. 5.803(2).
“An excited utterance is ‘[a] statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that it
caused.’” State v. Dessinger, 958 N.W.2d 590, 601 (Iowa 2021) (alteration in
original) (quoting Iowa R. Evid. 5.803(2)). In order to satisfy the excited-utterance
exception, “[t]he statement must be made under the excitement of the incident and
not on reflection or deliberation.” Id. The rationale for the exception is that when
the statement is made under the stress of the event, it is less likely the person
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making the statement will fabricate it. Id. We apply a five-factor test to determine
whether a statement qualifies as an excited utterance:
(1) the time lapse between the event and the statement; (2) the
extent to which questioning elicit[s] . . . statements that otherwise
would not have been volunteered; (3) the age and condition of the
declarant; (4) the characteristics of the event being described; and
(5) the subject matter of the statement.
Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)).
We find the time lapse disqualifies the statement from meeting the excited-
utterance exception, as the statement was made five to eight years after the events
described in the statement. Our cases do not set any firm time deadline, as
“statements made hours and even days after the event have been admissible.” Id.at 601–02 (collecting cases). And, we have allowed for statements “on the high-
end of the range” to be permitted for statements made by children. Id. at 601.
However, we know of no authority permitting a statement to qualify as an excited
utterance when it is made years after the event described. While the State makes
a creative argument that this qualifies as an excited utterance because it was made
shortly after the child first learned at school that what happened to her constituted
abuse, it does not change the fact that too much time had passed since the event
being described to conclude the child was acting under the excitement of the event
and not on reflection or deliberation.
Having concluded the challenged statement is hearsay for which no
exception applies, the statement should not have been admitted. But that does
not end the discussion. “Under Iowa Rule of Evidence 5.103, we may not find error
on any ruling admitting evidence unless the ruling affected ‘a substantial right of
the party’ opposing admission.” State v. Wilson, 878 N.W.2d 203, 218–19 (Iowa
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2016). Wrongly admitted hearsay evidence is presumed prejudicial to the
nonoffering party unless shown otherwise. State v. Skahill, 966 N.W.2d 1, 15
(Iowa 2021).
One way the State can overcome the presumption of prejudice is to show
that the wrongly admitted evidence was cumulative. Id. at 16. The State relies on
the cumulative nature of the mother’s testimony here. By the time the mother took
the stand and presented the hearsay testimony, the child had already testified that
Howland “touched [her] in the vagina” and “put his penis in [her] mouth, and he
made [her] touch his penis.” So, the mother’s testimony was clearly cumulative.
The question is whether the cumulative nature of it overcomes the prejudice.
We have case law that comes down on either side of this issue. On one
side we have Skahill, where the supreme court found admission of a forensic
interview of the child prejudicial even though it was cumulative of the child’s trial
testimony. Id. at 16–17. In reaching this conclusion, the court highlighted the
powerful nature of the forensic-interview video, as it provided additional details not
mentioned in the child’s trial testimony, and how the inadmissible video was
featured prominently in the State’s closing argument by the prosecutor playing
back dozens of excerpts from it. Id. On the other side, we have a number of cases
in which no prejudice was found due to the cumulative nature of the hearsay
evidence. See, e.g., State v. Juergens, No. 20–0825, 2021 WL 4592827, at *3
(Iowa Ct. App. Oct. 6, 2021) (finding admission of child’s statements to parents
disclosing abuse to be harmless, as the statements were cumulative to other
properly admitted evidence); State v. Exline, No. 18–1527, 2020 WL 568866, at *3
(Iowa Ct. App. Feb. 5, 2020) (finding no need to address whether child’s
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statements to a grandmother and friend fell within a hearsay exception, as they
were cumulative of other evidence properly admitted); State v. Neitzel, 801 N.W.2d
612, 623 (Iowa Ct. App. 2011) (finding no need to determine admissibility of the
child’s statements to a parent, as the statements were “merely cumulative and
therefore not prejudicial”).
We find this case more closely aligned with the facts in Juergens, Exline,
and Neitzel than with the facts in Skahill. Unlike the hearsay statements contained
in the video in Skahill, the mother’s testimony here about the child’s statements
did not provide details not provided by other testimony. See 966 N.W.2d at 16
(noting the improperly admitted forensic-interview video “provided additional
background for the jury”). In fact, less detail was provided through the mother’s
testimony. Additionally, the mother’s testimony lacks the inherent power of
persuasion found to exist with the forensic-interview video erroneously admitted in
Skahill. See id. (“Forensic interviews can be different from and, sometimes, more
powerful than trial testimony.”). Finally, in Skahill, the State made the improperly
admitted hearsay a focal point of its closing argument, replaying “approximately a
dozen excerpts and argu[ing] the significance of each to the jury” as well as using
about half of the State’s initial closing argument as “essentially a selective
rebroadcast of the video with prosecutorial voiceover.” Id. at 17. In contrast, the
State made virtually no use of the mother’s testimony about the child’s statements
to her in its closing argument. See id. (noting we have to look at how a case is
tried in determining whether prejudice resulted). After consideration of the
cumulative nature of the improperly admitted hearsay statements, we find any error
harmless and decline to grant Howland a new trial on this basis.
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B. Evidence Regarding Motivation to Fabricate
Howland also takes issue with the admission of this testimony by the
mother:
Q: Are you aware of any motivation that [the child] would have
to fabricate this story? A: No.
DEFENSE COUNSEL: Objection, Your Honor. It’s witness
vouching. It’s not relevant, and it’s more prejudicial than probative.
COURT: Sustained.
Howland complains that, while his objection was sustained, the answer was not
stricken from the record and the testimony constitutes improper vouching.
We find this issue unpreserved for our review. When, as here, an objection
is made after the answer to the question is in the record, in order to preserve error,
the objecting party must make a motion to strike the answer and ask that the
objection precede the answer or offer an excuse for the delay in objecting. See
State v. Reese, 259 N.W.2d 771, 775 (Iowa 1977). Howland took none of these
actions, so he has not preserved his claim of error.
C. Evidence Regarding Howland’s Role as Disciplinarian
Howland also objects to the introduction of evidence that he served as a
disciplinarian for the child when he was in a relationship with the child’s mother.3
Even though no specifics of any disciplinary acts were given, he contends the
testimony that he served as a disciplinarian was improper “bad acts” evidence that
should have been excluded under Iowa Rules of Evidence 5.404(b) and 5.403.
Rule 5.404(b)(1) states, “Evidence of a crime, wrong, or other act is not
3 Although the State challenges error preservation on this issue, Howland raised
the issue via pretrial motion in limine and received a sufficiently definitive ruling
such that we find error preserved.
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admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Although the “other
act” referenced in the rule is not defined, our supreme court has looked to other
jurisdictions to conclude it refers to bad acts, meaning “any conduct of the
defendant which may bear adversely on the jury’s judgment of his character.”
State v. Reynolds, 765 N.W.2d 283, 289 (Iowa 2009) (quoting United States v.
Cooper, 577 F.2d 1079, 1087–88 (6th Cir. 1978)), overruled on other grounds by
Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). We fail to see how
Howland acting as a disciplinarian—with no evidence of any conduct that could be
viewed as excessive discipline—may bear adversely on the jury’s judgment of his
character, and Howland provides no argument and no citation to authority in
support of his claim. As a result, we deem the issue waived. See Iowa R. App.
P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed
waiver of that issue.”).
V. Limit on Scope of Questioning
Howland argues that he was denied a fair trial because the district court
prevented him from trying to prove the child’s allegations were untrue by
questioning witnesses about the child’s mental state, the mother’s mental state,
the chaotic nature of the household, and “the family tension and drama that
surrounded” the child between the time of the alleged abuse and when she
disclosed it. We are unable to review these claims, as Howland failed to preserve
error on them. “Error on appeal cannot be predicated on a ruling excluding
evidence unless either the party that is offering the evidence ‘informs the court of
its substance by an offer of proof,’ or ‘the substance was apparent from the
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context.’” State v. Lacey, 968 N.W.2d 792, 806 (Iowa 2021) (quoting Iowa R.
Evid. 5.103(a)(2)). Here, no offer of proof was made and the substance of such a
broad range of topics is not apparent from the context. Without an offer of proof,
we are left to speculate about the substance of the excluded evidence, which we
decline to do. See id.VI. Denial of Motion for Mistrial Following Therapy Disclosure
Before trial, ruling on the State’s motion in limine, the court ordered that
“[t]he defense will not make any reference to the mental-health or substance-abuse
counseling of any witness in this case.” At trial, the following exchange occurred
during the State’s examination of the child’s grandmother:
Q. Did [the child]’s life change or did she benefit in any way
by disclosing this abuse?
....
Q. . . . [The child] continued to live with you after [the day the
child disclosed the abuse in] 2019 for at least a year; right? A. Yes.
Yes.
Q. Okay. And nothing changed for [the child] after that?
....
Q. You can answer. A. After the disclosure?
Q. Yes, ma’am. A. I put her—she went to get therapy.
Q. Okay. A. I put her in therapy right away.
Q. I understand. A. But her life was—I mean, it wasn’t—I
mean, I put her in therapy, but, I mean, it wasn’t—
DEFENSE COUNSEL: Your Honor, may we approach?
COURT: Yes.
This was followed by an off-the-record discussion between the court and counsel.
At the first break outside the presence of the jury following this exchange, defense
counsel made a record of what was discussed at the sidebar conference and made
a motion for mistrial. Howland sought a mistrial based on the witness mentioning
the child’s therapy, claiming it violated the order in limine. The State responded
by noting that the witness’s answer was nonresponsive to the question and that
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the order in limine was obtained by the State not Howland. In response, the court
noted its belief that a violation of an order in limine “is not per se a reason or
grounds for a mistrial.” The court also noted that prejudice needs to be shown and
stated, “I don’t believe that anything that was said rose to the level or was so
prejudicial that the defendant cannot receive a fair trial.” So, the court overruled
Howland’s motion for a mistrial. Howland contends the court erred in doing so.
We review the denial of a mistrial for an abuse of discretion. State v. Plain,
898 N.W.2d 801, 811 (Iowa 2017). To establish reversible error, Howland must
show the violation of the order in limine resulted in prejudice that deprived him of
a fair trial. See State v. Frei, 831 N.W.2d 70, 80 (Iowa 2013), overruled on other
grounds by Alcala, 880 N.W.2d at 708 n.3. “The party claiming prejudice bears
the burden of establishing it.” Id. at 80–81 (quoting State v. Anderson, 448 N.W.2d
32, 33 (Iowa 1989)).
Here, the violation was isolated and abrupt, caused by a nonresponsive
answer from a witness. The point was not belabored, either in questioning or
closing argument. We conclude this minor violation did not prejudice Howland to
the extent he lost his opportunity for a fair trial, so we find no abuse of discretion
in the court’s denial of Howland’s motion for a mistrial. See State v. English,
No. 21–0315, 2022 WL 3052322, at *3 (Iowa Ct. App. Aug. 3, 2022) (concluding a
mistrial was not necessary when a violation of an order in limine was “isolated and
abrupt in nature”).
VII. Statement on Slide During Closing Argument
Howland filed a motion for new trial based on the prosecutor displaying a
projected slide to the jury during closing argument that read, “He did it.” The court
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denied the motion, and Howland claims error.
We do not address the merits of this issue, as error is not preserved.
Howland did not object during the State’s closing argument when the slide was
displayed, nor did he move for a mistrial. The first time Howland raised an issue
about the slide was after the guilty verdict was returned. This is too late to preserve
error. A party cannot take a “wait-and-see” approach by refraining from objecting
to remarks made in closing argument until after the verdict is reached. Kinseth v.
Weil-McLain, 913 N.W.2d 55, 67 (Iowa 2018). Instead, a party must make a timely
objection, as timely objections give the district court an opportunity to admonish
counsel or appropriately instruct the jury. Id. As Howland raised no objection until
the verdict was returned, he did not preserve error.
Howland attempts to excuse his failure to timely object or move for a mistrial
by the fact that his counsel claims not to have seen the slide at issue—only being
told about it after the verdict. We are not persuaded by Howland’s excuse. We
expect attorneys to be aware of the information presented to the jury. There is
nothing in the record suggesting that Howland’s counsel could not see the slide or
that he was prevented from moving to a vantage point from which counsel could
see the slide, so we conclude that any claimed failure to see the slide does not
excuse counsel’s failure to act upon it if counsel thought the slide was improper.
VIII. Conclusion
Having rejected each of Howland’s claims, we affirm Howland’s convictions.
AFFIRMED.