IN THE COURT OF APPEALS OF IOWA
No. 23-1254 Filed February 19, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
VANCE FREDERICK BARTON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,
Judge.
Vance Barton appeals from his drug convictions claiming prosecutorial
misconduct during closing arguments. AFFIRMED.
William (Bill) Monroe, Burlington, for appellant.
Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant
Attorney General, for appellee.
Considered by Greer, P.J., Langholz, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
DOYLE, Senior Judge.
Vance Barton appeals from various drug convictions. On appeal, Barton
argues the State committed prosecutorial misconduct during closing arguments
“by repeatedly stating a false narrative.” Finding no prejudicial prosecutorial
misconduct, we affirm.
On a cold January evening, Cedar Rapids police officers Liddle and Green
were on patrol. Liddle testified, “we were patrolling an area that we had been
informed involved some narcotics activity in the area of C Avenue and 42nd Street
Northeast.” As they drove by a residence, they observed a male (later identified
as Barton) standing in a driveway. Green testified Barton was wearing a backpack
and hooded jacket. As they drove by, Barton covered his face and “bladed” 1 his
body from the patrol car. The officers drove around the block and parked at a
place where they could “have a visual” of Barton. A small pickup truck arrived and
pulled into the driveway where Barton was standing. He got in the truck. Another
male came out of a residence and talked to the occupants of the truck and then
went back to his residence. The truck then left. The officers followed. When they
determined the truck’s plates were expired, they initiated a traffic stop. Barton was
in the front passenger seat with a backpack on the floor between his legs. The
driver was female as was the backseat passenger. Barton refused to identify
himself. Liddle went back to the patrol car to check the driver’s information. A K-9
drug team was called. The drug dog did a sniff of the truck and indicated for the
presence of narcotics. The truck and backpack were searched. The backpack
1 Officer Green explained that blading is when one turns their body from your
direction. 3
contained cannabis flour, pipes, Ziplock bags of methamphetamine, a bag of
marijuana, a drug kit, and male clothing. During the stop and search, Barton
claimed the backpack was not his. He finally identified himself shortly before being
arrested.
After being charged with various drug crimes, Barton was tried to a jury. He
was found guilty of a drug stamp violation, possession of methamphetamine,
possession of marijuana, and possession of drug paraphernalia. Barton filed a
motion for new trial arguing that, “During the State’s closing argument, the State
referred to the area of the stop and subsequent search being a known drug area,
or something similar.” He noted he had objected and “the Court ruled that the
statement by the State could be considered by the jury because it was not
evidence.” Barton argued, while not evidence, the statement was a material
misrepresentation of the facts and had the practical result of misleading and
confusing the jury. The State resisted and the court denied the motion. After the
judgment and sentence was entered, Barton appealed.
Here’s what happened at trial. In her closing argument, the prosecutor
stated:
So the evidence proves—let’s talk about the facts—that back on January 12th, 2023, which Officer Liddle told us was a brutally cold and windy day, the Defendant was standing in the driveway of a home in an area of town that they watch because of high drug trafficking.
Barton made no objection. In her rebuttal argument, the prosecutor stated, “What
the defense is presenting is not reasonable. It’s ridiculous, just like this case. The
Defendant is standing in a high narcotic trafficking area.” Barton objected: 4
“Objection. That assumes facts not in evidence.” The prosecutor responded that
it was in evidence. The court did not rule on the objection but admonished the jury:
Ladies and gentlemen of the jury, what is important is what you recall from the evidence that was submitted, the testimony that you heard from the officers. So rely on your recollection of the testimony as it came in. You may proceed.
The prosecutor then went on, “We are where we are in this case, in a high narcotics
trafficking area. The Defendant is wearing a backpack. The drugs were later found
in a backpack.” Defendant made no objection.
In his motion for new trial and motion in arrest of judgment, Barton does not
mention prosecutorial misconduct but argues the prosecutor’s reference “to the
area of the stop and subsequent search being a known drug area, or something
similar,” while not evidence, was “a material misrepresentation of the facts and had
the practical result of misleading and confusing the jury.” At the hearing on the
motion, Barton argued that neither of the police officers actually made statements
to the effect that the officers were investigating in a “known drug area.” He
acknowledged one of the officers did allude to there being some drug activity but
argued the prosecutor’s statement to the jury “not only directly misquoted one of
the officers, but fluffed pretty substantially the second officer’s actual testimony.”
He argued the prosecutor’s statements were misleading. The court overruled and
denied the motion at the hearing. The court entered its judgment and sentence.
On appeal, Barton argues the State committed prosecutorial misconduct
“by repeatedly stating a false narrative that Vance Barton was first sighted by
police officers in a high narcotics or drug trafficking area” when the only testimony
on this point was that an officer had been told of some drug activity. The State 5
responds that Barton failed to preserve error because he failed to move for a
mistrial, citing State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011) (“Krogmann
cannot obtain a new trial based on prosecutorial misconduct when he failed to
move for a mistrial at the time.”), State v. Radeke, 444 N.W.2d 476, 479 (Iowa
1989) (“In permitting the case to be submitted to the jury without asserting the
denial of a fair trial by reason of the alleged misconduct, defendant’s counsel
indicates a willingness to take a chance on a favorable verdict and waives the claim
of misconduct.”), and State v. Farnsworth, No. 13-0401, 2014 WL 2884732, at *3
(Iowa Ct. App. June 25, 2014) (“Farnsworth cannot obtain a new trial asserting
prosecutorial misconduct when he failed to move for a mistrial at the time the
alleged prosecutorial misconduct occurred. By not objecting or otherwise alleging
prosecutorial misconduct at the time of trial, Farnsworth failed to preserve error.”
(citation omitted)).
We acknowledge the State’s error-preservation concerns. But here, even
if we characterize Barton’s objection at trial to be an objection to prosecutorial
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IN THE COURT OF APPEALS OF IOWA
No. 23-1254 Filed February 19, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
VANCE FREDERICK BARTON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,
Judge.
Vance Barton appeals from his drug convictions claiming prosecutorial
misconduct during closing arguments. AFFIRMED.
William (Bill) Monroe, Burlington, for appellant.
Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant
Attorney General, for appellee.
Considered by Greer, P.J., Langholz, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
DOYLE, Senior Judge.
Vance Barton appeals from various drug convictions. On appeal, Barton
argues the State committed prosecutorial misconduct during closing arguments
“by repeatedly stating a false narrative.” Finding no prejudicial prosecutorial
misconduct, we affirm.
On a cold January evening, Cedar Rapids police officers Liddle and Green
were on patrol. Liddle testified, “we were patrolling an area that we had been
informed involved some narcotics activity in the area of C Avenue and 42nd Street
Northeast.” As they drove by a residence, they observed a male (later identified
as Barton) standing in a driveway. Green testified Barton was wearing a backpack
and hooded jacket. As they drove by, Barton covered his face and “bladed” 1 his
body from the patrol car. The officers drove around the block and parked at a
place where they could “have a visual” of Barton. A small pickup truck arrived and
pulled into the driveway where Barton was standing. He got in the truck. Another
male came out of a residence and talked to the occupants of the truck and then
went back to his residence. The truck then left. The officers followed. When they
determined the truck’s plates were expired, they initiated a traffic stop. Barton was
in the front passenger seat with a backpack on the floor between his legs. The
driver was female as was the backseat passenger. Barton refused to identify
himself. Liddle went back to the patrol car to check the driver’s information. A K-9
drug team was called. The drug dog did a sniff of the truck and indicated for the
presence of narcotics. The truck and backpack were searched. The backpack
1 Officer Green explained that blading is when one turns their body from your
direction. 3
contained cannabis flour, pipes, Ziplock bags of methamphetamine, a bag of
marijuana, a drug kit, and male clothing. During the stop and search, Barton
claimed the backpack was not his. He finally identified himself shortly before being
arrested.
After being charged with various drug crimes, Barton was tried to a jury. He
was found guilty of a drug stamp violation, possession of methamphetamine,
possession of marijuana, and possession of drug paraphernalia. Barton filed a
motion for new trial arguing that, “During the State’s closing argument, the State
referred to the area of the stop and subsequent search being a known drug area,
or something similar.” He noted he had objected and “the Court ruled that the
statement by the State could be considered by the jury because it was not
evidence.” Barton argued, while not evidence, the statement was a material
misrepresentation of the facts and had the practical result of misleading and
confusing the jury. The State resisted and the court denied the motion. After the
judgment and sentence was entered, Barton appealed.
Here’s what happened at trial. In her closing argument, the prosecutor
stated:
So the evidence proves—let’s talk about the facts—that back on January 12th, 2023, which Officer Liddle told us was a brutally cold and windy day, the Defendant was standing in the driveway of a home in an area of town that they watch because of high drug trafficking.
Barton made no objection. In her rebuttal argument, the prosecutor stated, “What
the defense is presenting is not reasonable. It’s ridiculous, just like this case. The
Defendant is standing in a high narcotic trafficking area.” Barton objected: 4
“Objection. That assumes facts not in evidence.” The prosecutor responded that
it was in evidence. The court did not rule on the objection but admonished the jury:
Ladies and gentlemen of the jury, what is important is what you recall from the evidence that was submitted, the testimony that you heard from the officers. So rely on your recollection of the testimony as it came in. You may proceed.
The prosecutor then went on, “We are where we are in this case, in a high narcotics
trafficking area. The Defendant is wearing a backpack. The drugs were later found
in a backpack.” Defendant made no objection.
In his motion for new trial and motion in arrest of judgment, Barton does not
mention prosecutorial misconduct but argues the prosecutor’s reference “to the
area of the stop and subsequent search being a known drug area, or something
similar,” while not evidence, was “a material misrepresentation of the facts and had
the practical result of misleading and confusing the jury.” At the hearing on the
motion, Barton argued that neither of the police officers actually made statements
to the effect that the officers were investigating in a “known drug area.” He
acknowledged one of the officers did allude to there being some drug activity but
argued the prosecutor’s statement to the jury “not only directly misquoted one of
the officers, but fluffed pretty substantially the second officer’s actual testimony.”
He argued the prosecutor’s statements were misleading. The court overruled and
denied the motion at the hearing. The court entered its judgment and sentence.
On appeal, Barton argues the State committed prosecutorial misconduct
“by repeatedly stating a false narrative that Vance Barton was first sighted by
police officers in a high narcotics or drug trafficking area” when the only testimony
on this point was that an officer had been told of some drug activity. The State 5
responds that Barton failed to preserve error because he failed to move for a
mistrial, citing State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011) (“Krogmann
cannot obtain a new trial based on prosecutorial misconduct when he failed to
move for a mistrial at the time.”), State v. Radeke, 444 N.W.2d 476, 479 (Iowa
1989) (“In permitting the case to be submitted to the jury without asserting the
denial of a fair trial by reason of the alleged misconduct, defendant’s counsel
indicates a willingness to take a chance on a favorable verdict and waives the claim
of misconduct.”), and State v. Farnsworth, No. 13-0401, 2014 WL 2884732, at *3
(Iowa Ct. App. June 25, 2014) (“Farnsworth cannot obtain a new trial asserting
prosecutorial misconduct when he failed to move for a mistrial at the time the
alleged prosecutorial misconduct occurred. By not objecting or otherwise alleging
prosecutorial misconduct at the time of trial, Farnsworth failed to preserve error.”
(citation omitted)).
We acknowledge the State’s error-preservation concerns. But here, even
if we characterize Barton’s objection at trial to be an objection to prosecutorial
misconduct, the court did not quite overrule or sustain the objection but instead
admonished the jury to recall the testimony as it came in. This is problematic in
the context of a prosecutorial-misconduct claim, given the distinction between
sustained and overruled objections: if the objection is sustained error is only
preserved if the defendant moves for a mistrial, but if the objection is overruled,
defendant need not move for a mistrial. See State v. Neiderbach, 837 N.W.2d
180, 209 (Iowa 2013); State v. Brammer, No. 24-0127, 2025 WL 52854, at *3 (Iowa
Ct. App. Jan. 9, 2025). 6
Barton skates on very thin ice regarding the error-preservation issue.
Nevertheless, it is within our prerogative to bypass serious preservation-of-error
problems and affirm on the merits. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
In the interests of judicial economy, a ruling on the merits may stave off a post-
conviction relief action on the issue. So we exercise that prerogative here.
Before us, Barton only alleges prosecutorial misconduct—not prosecutorial
error. As defined by our supreme court, “prosecutorial misconduct involves either
the prosecutor’s reckless disregard of a duty to comply with the applicable legal
standard or obligation, or a prosecutor’s intentional statements in violation of an
obvious obligation, standard, or applicable rule.” State v. Coleman, 907 N.W.2d
124, 139 (Iowa 2018). Prosecutorial misconduct includes but is not limited to
“questioning witnesses about others’ deceit, distorting testimony, making
unsupported statements during closing argument . . . [and] making other
inflammatory or prejudicial statements about the defendant.” Id. (second alteration
in original) (citation omitted). Misconduct requires more than “human error or the
exercise of poor judgment.” Id. But it does not necessarily require bad faith. Id.
Finally, prosecutors are allowed latitude during closing arguments in making
inferences and conclusions based on evidence. State v. Graves, 668 N.W.2d 860,
874 (Iowa 2003).
We review rulings on alleged prosecutorial misconduct for an abuse of
discretion. Coleman, 907 N.W.2d at 134. To warrant relief, a criminal defendant
must establish both misconduct (whether reckless or intentional) and that the
misconduct was so prejudicial it deprived the defendant of his or her right to a fair
trial. Id. at 138. In assessing the prejudice prong, we consider five factors: 7
(1) The severity and pervasiveness of misconduct; (2) [T]he significance of the misconduct to the central issues in the case; (3) [T]he strength of the State’s evidence; (4) [T]he use of cautionary instructions or other curative measures; [and] (5) [T]he extent to which the defense invited the misconduct.
Id. at 140 (citation omitted) (formatted for readability). The ultimate inquiry is
whether “the misconduct resulted in prejudice to such an extent that the defendant
was denied a fair trial.” Graves, 668 N.W.2d at 869.
Even if we could deem as misconduct the prosecutor’s characterization of
the area where Barton was first observed as a “high” narcotic trafficking area, as
opposed to the officer’s testimony there was “some” narcotic activity in the area,
we fail to see the significance of the characterization to the central issue in the
case—whether Barton possessed the backpack containing the drugs. Barton’s
actions may have seemed suspicious to the officers when first observed, but the
truck he was riding in was not stopped until it was determined its plates were
expired, thus justifying the traffic stop. The truck and its contents were not
searched until after the drug dog alerted on it.
When the prosecutor mentioned “high narcotic trafficking area” during her
rebuttal argument, after objection the jury was admonished by the court that “what
is important is what you recall from the evidence that was submitted, the testimony
you heard from the officers.” Furthermore, the jury was instructed to base its
“verdict only upon the evidence and these instructions,” which expressly does not
include “[s]tatements, arguments, questions[,] and comments by the lawyers.” The
complained-of statements fell within this exclusion; any prejudicial effect was
therefore mitigated. See, e.g., State v. Plain, 898 N.W.2d 801, 821 (Iowa 2017)
(observing a complained-of statement “was limited to closing arguments and the 8
district court instructed jurors that ‘[the] summations and closing arguments of
counsel are not evidence,’ thus mitigating the term’s prejudicial effect” (alteration
in original)); State v. Brown, No. 07-1479, 2008 WL 5235495, at *3 (Iowa Ct. App.
Dec. 17, 2008) (finding no Graves prejudice where “[t]he conduct was neither
severe nor pervasive” and “[t]he court instructed the jury that
‘statements, arguments, questions, and comments by the lawyers’ were not
evidence and were not for the jury’s consideration or to be used as a basis for the
verdict”). Courts presume juries follow the court's instructions. State v. Hanes,
790 N.W.2d 545, 552 (Iowa 2010).
Barton cannot show Graves prejudice. So, we affirm the district court.
AFFIRMED.