IN THE COURT OF APPEALS OF IOWA
No. 22-0936 Filed February 7, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
REGINALD EUGENE STEWART, JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,
Judge.
A defendant appeals his criminal convictions raising double jeopardy,
insufficient evidence, and evidentiary claims. AFFIRMED.
Lucas L. Asbury of Trey Sucher Law, PLC, Windsor Heights (until
withdrawal), and Shea M. Chapin of The Chapin Center, PLC, Dubuque, for
appellant.
Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Heard by Tabor, P.J., and Badding and Buller, JJ. 2
BADDING, Judge.
An ordinary Thursday night turned violent when Reginald Stewart sliced his
girlfriend’s head, back, and legs with a pocketknife and beat her with brass
knuckles. A jury convicted Stewart of attempt to commit murder, willful injury
causing serious injury, and three counts of domestic abuse assault. Stewart
appeals, raising double jeopardy, insufficient evidence, and evidentiary claims.
We affirm.
I. Background Facts and Proceedings
At around 7:30 a.m. on December 3, 2021, eleven-year-old B.H. sent his
dad a video showing blood splattered all over the upstairs of the home he shared
with his younger brother; their mother, Jill; and her boyfriend, Reginald Stewart.
While narrating in a whispered voice, “[t]here’s blood on here, right there, right
there,” B.H. panned the video to smears of blood on the hallway walls and
bathroom door. In the bathroom, B.H. pointed out drops of blood on the sink,
counter, and floor and brass knuckles in the bathtub.
Frantic, the children’s dad drove to Jill’s mother’s house, where they called
911 to request a welfare check. Corporal Jordan Waddick and Officer Jonathan
Brokens were dispatched to Jill’s home. Before knocking on the front door,
Waddick called Jill’s cellphone. She answered, telling Waddick that she and her
sons were out of town. Sensing something was off, the officers walked around the
house. Brokens saw movement inside, prompting Waddick to try Jill’s phone
again. They could hear the phone ringing inside. When Jill answered, she
“became really defensive,” according to Waddick. She told him that he was
harassing her and tried to get him to leave. Jill eventually admitted she was inside 3
with her youngest son and Stewart. B.H. had already left for school. Although Jill
insisted that they were fine, Waddick persuaded her to let them inside.
Stewart opened the door to the officers. Once inside, they saw a very “frail
and white” Jill laying on a bed. She was covered up by a blanket and wearing a
sweatshirt with the hood up. Brokens immediately noticed that Stewart had a
pocketknife in his front pants pocket. The officer removed the knife and got Stewart
to step outside to talk with Waddick. Brokens stayed inside with Jill.
Once Stewart was outside, Waddick patted him down and found brass
knuckles in his rear pants pocket. While talking to Stewart, Waddick saw that he
had blood on his hands, forearm, elbows, shirt, and shoes. Stewart told Waddick
that Jill called him that morning to help her clean up blood before her sons woke
up. He claimed that he didn’t know what happened to her or what time he got to
the house, telling Waddick, “Let her tell you.”
Back inside, Jill told Brokens that the night before, people broke into her
house and beat her up. But she couldn’t remember how many or who. Brokens
then made a protective sweep of the house. In the kitchen, he saw a bloody folding
chair against the counter and blankets spread across the entire floor. When
Brokens lifted one of the blankets, he found a pool of dried blood. Concerned, he
went back to Jill, telling her, “There is blood all over.” Brokens asked where she
was injured and if she needed an ambulance. Jill resisted getting medical
treatment, but Brokens called an ambulance anyway. While they were waiting for
it, one of the officers told Stewart there was a lot of blood in the kitchen. He
responded, “Yeah. I know that.” The officer asked Stewart why he didn’t call an 4
ambulance, and Stewart said it was because he “didn’t find no blood on her.” He
suggested the blood was from Jill’s menstrual cycle.
As Jill was brought out of the house by emergency medical responders,
Stewart yelled at her: “Hey Jill! What happened? Let me know what happened.”
Jill responded, “Somebody broke in here and beat me up last night. That’s why I
called you at 7:00 this morning.” But the only incoming call on Stewart’s phone
was from his cousin “Law” at around 6:00 a.m.
At the hospital, Jill was treated for multiple lacerations “on her scalp, on her
face and forehead, on her back and on her right thigh.” She also had contusions
on her body, face, head, and finger. Jill was in “acute distress” upon her arrival at
the hospital and received two pints of blood. Her scalp wounds, one of which was
down to the skull, were closed with staples, while other lacerations were sutured.
The emergency room physician who treated her said that even though the wounds
were not life threatening, they would leave scars. Jill was discharged from the
hospital later that evening.
Stewart was arrested and charged with first-degree kidnapping, willful injury
causing serious injury, three counts of domestic abuse assault, attempt to commit
murder, and two counts of child endangerment. With Stewart in jail, Jill began to
open up about what had happened to her.
Jill testified at trial that when she and Stewart began dating, they had a
really good relationship—“nothing violent.” That changed on December 2, 2021,
according to Jill. After putting her sons to bed around 8:30 p.m., she and Stewart
stayed up, “talking, kissing, hanging all over each other, having a good night.”
They eventually moved into Jill’s bedroom and tried to have sex. But when Stewart 5
couldn’t maintain his erection, Jill said he “just went crazy and psycho,” slicing the
top of her head with his pocketknife. Stewart then began yelling at Jill about some
money he thought that he had lost.
Bleeding from her head, Jill testified that she went into the kitchen to look
for the money. About fifteen minutes later, Stewart came up behind Jill while she
was still in the kitchen and hit the back of her head with something hard. Before
he hit her, Jill heard him say, “Why did you kill my brother?” One of Stewart’s
brothers, whom Jill had never met, died the year before from a methamphetamine
overdose.1 The blow knocked Jill to the floor. She then felt Stewart slash her back
with his knife—a cut that went from the top of her shoulder down to her tailbone.
While Jill was lying on the floor, she heard Stewart call his mother and tell her, “I
know who killed my brother.” Phone records show this call lasted twenty-one
minutes. He also sent messages to his other brother that stated, “I found out who
killed Gunny,” and “I merk 1 and I’m finna go get the rest.” “Gunny” was the
deceased brother’s nickname. And “merk,” according to an investigating officer,
“means to kill.”
At some point, Stewart told Jill to get up and sit on a folding chair in the
kitchen. He began interrogating her and punching her in the face while demanding,
“Tell me what you did to my brother.” During the beating, Jill passed out on the
floor by the back door to the kitchen. When she regained consciousness, Jill saw
that Stewart had cut her right thigh with a knife. That cut extended from the side
1 There is no evidence in the record that Jill had anything to do with the death of
Stewart’s brother. 6
of her upper thigh down past her knee. Jill told Stewart that she needed medical
attention, but Stewart told her that she “would be fine.”
With help from Stewart, Jill crawled from the kitchen floor to the upstairs
bathroom. Jill took her clothes off, and Stewart put her in the bathtub to clean her
up. He stayed with her for a bit before going downstairs and passing out. Jill laid
in the tub for “[p]robably like an hour and a half.” She then made her way back
downstairs and grabbed an old t-shirt from the basement to wrap around her head.
Jill sat up on a couch all night, fearing that she was going to lose her life. When
asked why she wouldn’t let the police in the next morning, Jill testified: “I was just
scared. I did want them inside but didn’t know how to get them inside” since
Stewart was still there with her. As for the break-in story, Jill explained that she
made it up because she loved Stewart and “[d]idn’t want to believe he did that” to
her.
Before the trial, Stewart moved to exclude the testimony of Rachel Haskin,
a forensic interviewer for St. Luke’s Child Protection Center. She interviewed Jill’s
sons several weeks after the assault. The district court denied Stewart’s motion,
telling defense counsel that objections would need to be made during Haskin’s
testimony. But the only objection Stewart raised when Haskin testified was to the
admission of two drawings that B.H. made during his forensic interview with her.
The State interpreted the drawings as showing Stewart covered in blood and
holding a knife. The court did not rule on the objection until B.H. testified, at which
time the court admitted the drawings into evidence. The court also overruled
objections Stewart made to eighteen photographs of Jill’s injuries in various stages
of recovery. 7
After the State rested, the court granted Stewart’s motion for judgment of
acquittal on the two child-endangerment counts. The jury acquitted Stewart of first-
degree kidnapping but convicted him of attempt to commit murder in violation of
Iowa Code section 707.11 (2021), willful injury causing serious injury in violation
of section 708.4(1), domestic abuse assault causing bodily injury in violation of
section 708.2A(2)(b), domestic abuse assault while using or displaying a
dangerous weapon in violation of section 708.2A(2)(c), and domestic abuse
assault with intent to cause serious injury in violation of section 708.2A(2)(c).
Stewart appeals, claiming that (1) his two convictions under Iowa Code
section 708.2A(2)(c) violate double jeopardy, as do his convictions for willful injury
causing serious injury and domestic abuse assault causing bodily injury; (2) the
evidence was insufficient to support his conviction for attempted murder;
and (3) the district court abused its discretion in admitting certain exhibits and
testimony.
II. Analysis
A. Double Jeopardy
The United States Constitution provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
This clause protects against: (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after conviction;
and (3) multiple punishments for the same offense. State v. McKettrick, 480
N.W.2d 52, 56 (Iowa 1992).
Stewart makes two distinct double-jeopardy claims under the multiple-
punishments category—one involving a claim that the same statute was charged 8
multiple times and another involving a merger issue. See State v. Ross, 845
N.W.2d 692, 701 (Iowa 2014) (distinguishing between the two types of claims).
While we review questions involving the interpretation of statutes and merger for
correction of errors at law, to the extent that resolution of these claims depends on
constitutional principles, our review is de novo. See State v. West, 924
N.W.2d 502, 504 (Iowa 2019); State v. Lindell, 828 N.W.2d 1, 4 (Iowa 2013); see
also State v. Chapman, 944 N.W.2d 864, 871 (Iowa 2020).
1. Same statute
For his first claim, Stewart argues that his convictions for domestic abuse
assault while using or displaying a dangerous weapon and domestic abuse assault
with intent to cause serious injury violate double jeopardy because they fall under
the same code section—Iowa Code section 708.2A(2)(c).2 This provision states
that “[o]n a first offense of domestic abuse assault, the person commits. . . . [a]n
aggravated misdemeanor, if the domestic abuse assault is committed with the
intent to inflict a serious injury upon another, or if the person uses or displays a
dangerous weapon in connection with the assault.”
Focusing on the word “or” in section 708.2A(2)(c), Stewart argues the
statute “clearly provides two alternative avenues for the prosecution to prove the
crime, not two separate crimes.” As a result, he asserts “the State erroneously
parsed this statute into two separate offenses.” But this argument ignores the well-
established proposition “in Iowa law that a single course of conduct can give rise
to multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584
2 We elect to bypass the State’s error-preservation challenge to deny the claim on
its merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). 9
(Iowa 2013). When interpreting other statutes, like the one criminalizing
intimidation with a dangerous weapon with intent, our supreme court has
recognized “a defendant may assault the same victim twice, as long as the
assaults are separate and distinct acts.” Ross, 845 N.W.2d at 706; accord Velez,
829 N.W.2d at 584 (finding two separate acts of willful injury against the same
victim).3 This is because a “defendant should not be allowed to repeatedly assault
his victim and fall back on the argument his conduct constitutes but one crime.”
Constable, 505 N.W.2d at 478 (citation omitted).
Thus, “multiple punishments can be assessed after a defendant is convicted
of two offenses that are not the same.” State v. Smith, 573 N.W.2d 14, 19
(Iowa 1997). “To constitute the same offense for the purpose of invoking the
Double Jeopardy Clause, the offenses must be the same act. Separate acts, even
charged under the same statute, are not subject to Fifth Amendment analysis.”
B. John Burns, 4A Iowa Practice Series, Criminal Procedure § 38:3 (2023 ed.);
accord State v. Zmuda, No. 11-0563, 2012 WL 470201, at *2 (Iowa Ct. App.
Feb. 15, 2012) (“Double jeopardy principles . . . do not apply when a defendant is
convicted of multiple offenses for different assaults.”).
Stewart does not argue that his two convictions under section 708.2A(2)(c)
were for the same act or complain about the sufficiency of the evidence supporting
3 Like with these other statutes, section 708.2A proscribes domestic abuse assault
in terms of the singular—when a person performs “an” assault. Iowa Code § 708.2A(1); State v. Constable, 505 N.W.2d 473, 477 (Iowa 1993) (“Throughout chapter 709, the legislature proscribed sexual abuse and related crimes in terms of the singular, when a person performs ‘a’ or ‘any’ sex act.”); accord Velez, 829 N.W.2d at 580 (discussing the importance of the legislature’s use of the phrase “an act” to denote the unit of prosecution). 10
two separate assaults. Cf. Ross, 845 N.W.2d at 705–06 (examining the sufficiency
of the evidence to support defendant’s multiple convictions for intimidation with a
dangerous weapon with intent). We will not do so for him. See Hyler v.
Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the
arguments [a party] might have made and then search for legal authority and comb
the record for facts to support such arguments.”). Because Stewart’s claim is
confined to an interpretation of section 708.2A(2)(c) that conflicts with the above
caselaw, we reject this assignment of error.
2. Merger
Stewart next claims that his convictions for willful injury causing serious
injury and domestic abuse assault causing bodily injury violate double jeopardy
because the latter offense is a lesser-included offense of the former.4 When
determining whether the legislature provided for double punishments in the
merger-context, “our first step is to apply the legal-elements test that compares
‘the elements of the two offenses to determine whether it is possible to commit the
greater offense without also committing the lesser offense.’” State v. Johnson, 950
N.W.2d 21, 24 (Iowa 2020).
Stewart concedes that under “the strict, elements-based approach . . . these
statutes appear to be sufficiently distinct as to not violate double jeopardy
protections” because “each contains a single element the other does not.” We
4 Stewart mentions section 701.9 in passing, which is a codification of “the double
jeopardy protection against cumulative punishment.” State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997). “If the Double Jeopardy Clause is not violated because the legislature intended double punishment, section 701.9 is not applicable and merger is not required.” State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). 11
reached the same conclusion in State v. Smith, where a defendant pled guilty to
“two crimes that arose from the same act”—domestic abuse assault and willful
injury causing bodily injury. No. 15-1252, 2016 WL 3281037, at *1 (Iowa Ct. App.
June 15, 2016); see also State v. Rodriguez, 636 N.W.2d 234, 247 (Iowa 2001)
(finding domestic abuse assault while using or displaying a dangerous weapon and
domestic abuse assault causing bodily injury were not lesser-included offenses of
willful injury causing bodily injury). Yet Stewart argues that under the second step
in our analysis, which considers “whether the legislature intended multiple
punishments for both offenses,” Halliburton, 539 N.W.2d at 344, we should find his
conviction for domestic abuse assault causing bodily injury merged with his
conviction for willful injury causing serious injury. We reject this argument.
In Smith, we agreed with the State that the defendant “was subject to
multiple punishments for the single act of assault because the crimes of domestic
abuse assault and willful injury were intended to address separate evils.” 2016
WL 3281037, at *1; accord Johnson, 950 N.W.2d at 26 (declining to merge
offenses “when the underlying statutes focus on ‘different dangers’”); State v.
Butler, 415 N.W.2d 634, 637 (Iowa 1987) (“By enacting separate statutes the
legislature addressed separate evils.”). We see no reason to depart from that
conclusion here. Cf. McKettrick, 480 N.W.2d at 58 (finding a “clear indication” of
legislative intent that a defendant, who committed a single assault, “may not be
convicted of and receive multiple punishments for both assault with intent to
commit serious injury and assault causing bodily injury”). 12
B. Sufficiency of the Evidence—Attempt to Commit Murder
For the attempted murder charge, the jury was instructed that the State was
required to prove the following beyond a reasonable doubt:
1. On or about December 3, 2021, the defendant struck [the victim] and cut her with a knife. 2. By his acts, the defendant expected to set in motion a force or chain of events which would cause or result in the death of [the victim]. 3. When the defendant acted, he specifically intended to cause the death of [the victim].
Accord Iowa Code § 707.11(1). Stewart challenges the sufficiency of the evidence
supporting the last two elements.
We review challenges to the sufficiency of the evidence for correction of
errors at law, giving high deference to the verdict. State v. Burns, 988 N.W.2d 352,
370 (Iowa 2023). In doing so, we view “the evidence ‘in the light most favorable to
the State, including all reasonable inferences that may be fairly drawn from the
evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (citation omitted).
With this standard in mind, we turn to Stewart’s specific arguments. He first
argues that the evidence was insufficient because while Jill “did suffer from
extensive injuries from the events that took place that night,” the medical evidence
established the cuts and blood loss were “insufficient to cause her death.” But in
State v. Young, our supreme court explained it is “the actor’s expectation of the
consequences of his or her act, not the probability of the act’s success” that is
relevant. 686 N.W.2d 182, 185 (Iowa 2004). More bluntly: “factual possibility or
probability of success is utterly irrelevant.” Id.; accord Iowa Code § 707.11(3)
(stating it is not a defense “that the acts proved could not have caused the death
of any person, provided that the actor intended to cause the death of some person 13
by so acting, and the actor’s expectations were not unreasonable in the light of the
facts known to the actor”).
Stewart next argues the only direct evidence of his intent “is the testimony
of Jill . . . herself,” which he says is implausible. First, “any nicks in the veracity of
a witness are left to the inspection of the jury.” State v. Boutchee, No. 17-1217,
2018 WL 3302010, at *3 (Iowa Ct. App. July 5, 2018). “It is not our place ‘to resolve
conflicts in the evidence, to pass upon the credibility of witnesses, to determine the
plausibility of explanations, or to weigh the evidence; such matters are for the jury.’”
State v. Brimmer, 983 N.W.2d 247, 256 (Iowa 2022) (citation omitted). So while
Jill’s trial testimony differed from statements she made at the scene and after,
those conflicts were for the jury to sort out.
Second, “[s]pecific intent is seldom capable of direct proof.” State v.
Hunt, 801 N.W.2d 366, 376 (Iowa Ct. App. 2011) (citation omitted). As a result,
the State may establish intent “by circumstantial evidence and by inferences
reasonably to be drawn from the conduct of the defendant and from all the
attendant circumstances in the light of human behavior and experience.” State v.
Casady, 491 N.W.2d 782, 787 (Iowa 1992). Here, we have both direct and
circumstantial evidence showing Stewart’s intent to cause Jill’s death.
After he sliced Jill’s scalp open, knocked her to the ground with a blow to
the back of her head, and cut her along her spine, Stewart messaged his brother:
“I found out who killed Gunny” and “I merk 1 and I’m finna go get the rest.” An
investigating officer testified that “merk” is a common slang word meaning “to kill.”
From this, a jury could infer, as the State argued in closing, that Stewart thought
he had killed Jill sometime during his assault. See id. Jill also testified that when 14
Stewart first sliced her scalp in bed, she “immediately thought he was trying to kill”
her and screamed, “Please, no, I have children.” That fear remained as the attack
continued, with Jill testifying that she was scared for her life while Stewart was
punching her on the folding chair. Even after the assault ended, Jill testified that
she sat on the couch all night, afraid that she was going to die.
While Jill’s injuries were not life-threatening, they were extensive. See
Hunt, 801 N.W.2d at 377 (noting that victim’s “extensive and severe injuries,” while
not life-threatening, were circumstantial evidence of defendant’s intent to seriously
injure and kill the victim). She received fifteen staples in her head, had multiple
knife lacerations sewn up with sutures, suffered multiple contusions all over her
body, and lost twenty percent of her body’s blood volume according to doctors who
testified for the State. The multiple deep cuts to Jill’s body and blows to her head
are further evidence of Stewart’s murderous intent. See id. (“Intent to kill or
seriously injure another may be inferred from the type and number of injuries
suffered by the victim.”); accord Boutchee, 2018 WL 3302010, at *3 (finding
repeated blows to a victim’s head “and the slashing of his wrist—both locations on
the body vulnerable to mortal injuries—qualified as overt acts in furtherance of
[defendant’s] specific intent to kill”). Viewing this evidence in the light most
favorable to the State, a rational trier of fact could conclude that Stewart acted with
the requisite intent. See Hunt, 801 N.W.2d at 377.
C. Evidence Issues
Stewart next claims the district court abused its discretion in (1) admitting
two pictures B.H. drew as “hearsay not falling into any exception”; (2) allowing
forensic interviewer Rachel Haskin to testify; and (3) admitting photographs 15
showing Jill’s healing injuries. We review these “evidentiary rulings for an abuse
of discretion. However, the standard of review for hearsay is for errors at law.”
State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021) (citation omitted).
1. Drawings
During B.H.’s testimony at trial, the prosecutor presented him with two
pictures that he drew during his forensic interview with Haskin. B.H.’s testimony
about these drawings, like the rest of his testimony, was limited:
Q. I’m handing you two pictures that I have copies of. Do you remember those? A. Yeah. Q. What are they? A. Don’t know. Q. Did you draw them? A. Yeah. Q. And when you were drawing them, what were you thinking about? A. Reggie. Q. You were thinking about Reggie? A. (The witness indicated affirmatively.) Q. Are those pictures of Reggie? A. Yeah.
The district court admitted the drawings into evidence, overruling Stewart’s
hearsay objection. In closing arguments, the prosecutor interpreted the drawings
as showing Stewart “covered in blood holding a knife.”
On appeal, the State concedes the drawings are hearsay but contends they
were properly admitted as past recollections recorded under Iowa Rule of
Evidence 5.803(5). Alternatively, the State asserts admission of the drawings was
not prejudicial because they were cumulative of other evidence, which
overwhelmingly established Stewart’s guilt. We find the latter argument
dispositive.
“The erroneous admission of hearsay testimony is presumed to be
prejudicial unless the contrary is established affirmatively; however, the court will
not find prejudice if substantially the same evidence has come into the record 16
without objection.” State v. McGuire, 572 N.W.2d 545, 547 (Iowa 1997). There
was abundant evidence at trial that came in without objection about the amount of
blood at the scene and on Stewart—from officers, the video B.H. sent to his father,
body cam videos, and pictures of the scene. Corporal Waddick testified that during
his contact with Stewart the morning after the assault, he “observed that he had
blood across his body. It was on his elbows, his hands, his forearm, and what I
suspected at the time to be blood on his shirt.” There was also blood on Stewart’s
shoes and on the pocketknife and brass knuckles the officers removed from his
pants pockets. A criminologist testified that the blood on both weapons matched
Jill’s DNA profile. We agree with the State that the drawings, which “at most
suggested that Stewart had blood on him and may have been holding an object in
his hand,” were cumulative to this “other evidence establishing the bloody scene,
the bloody defendant, and the bloody weapons.”
We also agree with the State that “the force of [the drawings] paled in
comparison to the overwhelming evidence of Stewart’s guilt,” as detailed above.
See State v. Elliott, 806 N.W.2d 660, 669 n.1 (Iowa 2011) (“Another way to show
the tainted evidence did not affect the jury’s verdict is to show other overwhelming
evidence of the defendant’s guilt, making the prejudicial impact of the tainted
evidence insignificant.”). Yet Stewart contends the drawings impacted the jury’s
verdict on attempted murder because the prosecutor used the drawings to play on
the jury’s sympathies, arguing in closing: 17
We know [B.H.] saw something, right?[5] Like, that is—that’s straight out of a horror movie. That’s an eleven-year-old drawing the person who’s been living with them for the better part of a year covered in blood holding a knife. My interpretation of the exhibit. You know, [B.H.] wouldn’t talk about it here. He wouldn’t talk about it in front of the Defendant except to acknowledge that he was drawing the Defendant, but that’s what that drawing is. That’s something he saw that night.
The jury, however, acquitted Stewart of first-degree kidnapping—another
indication that the drawings, which were a small part of the State’s case against
Stewart, were not prejudicial. See State v. Taylor, 689 N.W.2d 116, 130
(Iowa 2004) (noting the court’s acquittal of the defendant on a kidnapping charge
was “an indication the bad-acts evidence did not motivate the fact finder to
categorically rule against the defendant”); accord Rodriguez, 636 N.W.2d at 243
n.4 (observing the jury acquitted the defendant of one offense, which indicated a
lack of prejudice).
2. Haskin testimony
Stewart next claims the district court abused its discretion in allowing Haskin
to testify about “the nature of her work, how she conducts interviews with children,
and what she looks for and sees when she conducts those interviews” because
that testimony was “irrelevant to any issue before the trial court.” Although Stewart
objected to Haskin’s testimony in a motion in limine, the court ruled “objections are
going to have to be made during her testimony and then we’ll deal with it on the
record.” And when Stewart renewed the objection at trial before Haskin testified,
the court repeated:
5 At trial, B.H. denied seeing Stewart the night of the assault. His younger brother also told an officer that he didn’t see anything. But the younger brother testified that he heard Stewart yelling at his mom about money and “[a] lot” of pounding. 18
I think for purposes of appeal and the record, I think you have to lodge your objection tomorrow during the witness’s testimony. So I’m not going to exclude her. She can come in and testify. . . . [A]ny specific question that she’s asked that you think is improper or objectionable, make sure you lodge that objection tomorrow.
But the only objection Stewart made during Haskin’s testimony was when
the State offered B.H.’s drawings as exhibits. Because he raised no other
objections, Stewart failed to preserve error on this issue. See State v. Harlow, 325
N.W.2d 90, 91 (Iowa 1982) (“[T]he granting or rejecting of a motion in limine is not
reversible error. The error occurs, if at all, when the matter is presented at trial.
An objection should then be made in order to preserve error.”); cf. State v.
Mark, 286 N.W.2d 396, 410 (Iowa 1979) (recognizing an exception to this rule if
the ruling reaches the ultimate issue and unequivocally declares the evidence
admissible or inadmissible).
3. Photographs
Stewart finally claims the court abused its discretion in admitting
photographs showing Jill’s injuries in various stages of healing. He argues “[t]heir
probative value is nil. The prejudicial effect, however, is substantial as they
constitute a cumulative pile of grotesque evidence used to inflame a jury.” See
Iowa R. Evid. 5.403 (“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice. . . .”).
Our supreme court has “long recognized photographs are not inadmissible
simply because they are gruesome or may tend to create sympathy if there is just
reason for their admission.” State v. Neiderbach, 837 N.W.2d 180, 202
(Iowa 2013) (cleaned up). “Trial courts have discretion in determining whether the 19
value of pictures as evidence outweighs their grisly nature.” Id. We find no abuse
of that discretion here.
Some of the charges lodged against Stewart required the State to prove
that Jill suffered a serious injury. The jury was instructed that a “serious injury” is
“a bodily injury which creates a substantial risk of death or which causes serious
permanent disfigurement or extended loss or impairment of the function of any
bodily part or organ.” Because the photographs showed Jill’s injuries and their
long-term effects, they were relevant to the issue of serious injury. See id. (finding
that because a video and photograph showed the child’s condition “before trial and
reflected the long-term effects of the injuries [he] had sustained,” they were
“relevant to the issue of the victim’s serious injury”); accord State v. Perez,
No. 22-0276, 2023 WL 152524, at *3 (Iowa Ct. App. Jan. 11, 2023). And the
photographs, which fairly depicted Jill’s condition, “were not so unfairly prejudicial
as to substantially outweigh their probative value.” Perez, 2023 WL 152524, at *3.
They simply “embellished the verbal picture of the events already provided by the
victim.” State v. Munz, 355 N.W.2d 576, 580 (Iowa 1984) (“Even if we assume the
evidence was cumulative, that is not a sufficient reason, standing alone, to require
its exclusion. . . .”).
III. Conclusion
We affirm Stewart’s convictions, concluding his rights against double
jeopardy were not violated and substantial evidence supported the jury’s verdict
finding him guilty of attempt to commit murder. As for the claimed evidentiary
errors, we find Stewart was not prejudiced by the admission of the child’s drawings,
error was not preserved on his objection to the forensic interviewer’s testimony, 20
and the photographs showing the victim’s injuries were not so unfairly prejudicial
as to outweigh their probative value.
AFFIRMED.