                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1896
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN LEE SHUTT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



      Jonathan Lee Shutt appeals from his conviction for burglary in the second

degree. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

          Jonathan Lee Shutt appeals from his conviction for burglary in the second

degree, alleging the district court erred in admitting evidence outside the scope of

the minutes of testimony and he received ineffective assistance of counsel. We

affirm.

          I.    Backgrounds Facts and Proceedings

          In the early morning hours of August 27, 2014, law enforcement received

a report of a break-in at a residence in Fort Dodge.          A blood sample was

collected from the scene by Officer Kleppe and submitted to the Iowa Division of

Criminal Investigations (DCI) laboratory for possible DNA analysis. The sample

was analyzed by DCI Criminalist Tara Scott—and the results were memorialized

in a report that was admitted at trial—and run through the State’s DNA database

by another criminalist, which resulted in a possible match.

          At trial, Officer Kleppe testified he received a report from the DCI lab

indicating there was a possible match. Officer Kleppe was not permitted to testify

about the results of the DCI report. Officer Kleppe testified that, after receiving

the result, which included the “name of who the blood belonged to,” he obtained

an arrest warrant for Shutt and a search warrant to obtain a sample of Shutt’s

DNA. Officer Kleppe obtained this DNA sample on July 23, 2015, and sent it to

the DCI lab for analysis.

          Criminalist Scott analyzed the sample collected from Shutt and issued a

report on September 3, 2015, indicating Shutt’s sample matched that collected at

the scene. Defense counsel received this report a few days before trial. The
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report was entered into evidence at trial, and Criminalist Scott testified consistent

with the contents of that report.

         On July 31, 2015, Shutt was charged with burglary in the second degree.

A jury trial commenced on September 29. The jury convicted Shutt the following

day. Shutt appeals.

         II.      Standard and Scope of Review

         We review a ruling on an objection that certain testimony was beyond the

scope of the minutes of evidence for an abuse of discretion. State v. Hayes, 532

N.W.2d 472, 476 (Iowa Ct. App. 1995); see also State v. McMillen, No. 09-0487,

2010 WL 786037, at *2 (Iowa Ct. App. Mar. 10, 2010). “The minutes of testimony

need only be sufficient to alert the defendant generally to the source and nature

of the evidence against him.”       State v. Mehner, 480 N.W.2d 872, 877 (Iowa

1992). “Whether testimony is within the scope of the minutes must be decided

on a case-by-case basis.” State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984).

Even if an abuse of discretion has occurred, reversal will not be warranted if error

was harmless. State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006).

         In order to prove an ineffective-assistance-of-counsel claim, an appellant

must show by a preponderance of the evidence that counsel (1) failed to perform

an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,

701 (Iowa 2012).        We can resolve ineffective-assistance claims under either

prong.         State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).        We review

ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa

2013).
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       III.   Analysis

              A.      Minutes of Testimony

       On appeal, Shutt contends the district court erred in admitting testimony

concerning the comparison of the known DNA sample collected from him on July

23, 2015, with the sample collected at the scene, claiming the evidence was

beyond the scope of the minutes of testimony.             Specifically, Shutt argues

Criminalist Scott’s testimony about the comparison, along with the report about

the comparison, should have been excluded.

       Iowa Rule of Criminal Procedure 2.5(3) requires the prosecuting attorney

to “file the minutes of evidence of the witnesses which shall consist of a notice in

writing stating the name and occupation of each witness upon whose expected

testimony the information is based, and a full and fair statement of the witness’

expected testimony.”1      See Mehner, 480 N.W.2d at 877 (“The minutes of

evidence must provide a full and fair statement of the witness’ expected

testimony.”). While “[t]he minutes need not list each detail to which a witness will

testify,” they must alert the defendant “to the source and nature of the information

against him.” Ellis, 350 N.W.2d at 181. “[W]hen the challenged minutes, though

incomplete, put defendant ‘on notice of the necessity of further investigation of

the witness’ probable testimony,’ reversal need not follow admission of matters

they do not disclose.” State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987) (citation

omitted). We “will not reverse on the ground of technical defects in procedure


1
  Rule 2.5(3) uses the terms “minutes of evidence” and “statement of the witness’
expected testimony.” In this case, the document filed by the prosecuting attorney as
intended compliance with this rule was captioned “minutes of testimony.” In this opinion
we use the terms interchangeably.
                                         5


[including the minutes of testimony] unless it appears in some way to have

prejudiced the complaining party or deprived him or her of full opportunity to

make defense to the charge presented in the indictment or information.” State v.

Braun, 495 N.W.2d 735, 741 (Iowa 1993).

       The minutes of testimony provided Criminalist Scott would testify, in

relevant part, as follows:

       She will testify as to which pieces of evidence she was asked to
       examine for DNA. She will testify to her findings and how she
       conducted that analysis. She will testify that these findings were
       entered into the State’s database[] for comparison to known DNA
       profiles. Specifically, that [Shutt’s] DNA was located on swabs
       taken from the front garage door as submitted by the Fort Dodge
       Police Department.

       In an amended minutes of testimony, the State indicated Criminalist Scott

would “testify in conformity with the attached reports.” The reports pertained to

the swab collected at the crime scene and the swabs collected from Shutt and

contained a request that a comparison be run on the two samples.

       Shutt argues this disclosure “failed to provide any notice that comparison

of [Shutt’s] known DNA sample with the unknown DNA sample from the scene

had actually been accomplished resulting in a match.” Shutt also argues the

minutes failed to disclose the contents of the report.

       DCI reports, however, are not subject to the requirements of rule 2.5. See

State v. Givens, 248 N.W.2d 86, 87-88 (Iowa 1978) (stating the predecessor

section to rule 2.5 “requiring the State to list Witnesses, does not apply to

Criminalistics Laboratory Reports”); see also State v. Pitlik, 247 N.W.2d 741, 742

(Iowa 1976).
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       Shutt notes he filed a notice under Iowa Code section 691.2 (2013),

requesting the in-person testimony any DCI witness. See Iowa Code § 691.2 (“A

party or the party’s attorney may request that an employee or technician testify in

person at a criminal trial . . . .”). Shutt argues that, because defense counsel

invoked section 691.2 and demanded Criminalist Scott testify in person, Givens

is inapplicable. We have repeatedly noted section 691.2 protects a defendant’s

confrontation rights.   See, e.g., State v. Holzhauser, No. 12-1558, 2013 WL

3830194, at *2 (Iowa Ct. App. July 24, 2013); Watson v. State, No. 11-1833,

2013 WL 99862, at *6 (Iowa Ct. App. Jan. 9, 2013). In accordance with Shutt’s

request, Criminalist Scott testified at trial. Shutt has failed to cite any authority

supporting his contention his notice also subjects DCI reports to the requirements

of rule 2.5 and has failed to cite any provision of the statute that would indicate

such a result was intended.

       Further, we find Shutt had sufficient notice. The minutes of testimony

identified Criminalist Scott and specified she would testify to the results of any

DNA analysis and comparison she performed. The minutes of testimony also

disclosed Criminalist Scott would testify “in conformity with” the reports provided,

which indicated a comparison had been requested on the swabs taken from

Shutt with those recovered at the crime scene. Shutt was aware the samples

had been taken and submitted for comparison.           Further, the record reflects

Shutt’s counsel inquired about the report when meeting with the State before

trial, at which point the report was produced. See Iowa Code § 691.4 (providing

any report must be given to the defendant “at least four days prior to trial” and

failure to provide the report within such a timeline “shall be grounds for a
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continuance”). Shutt was aware of the source and nature of Criminalist Scott’s

testimony and the need for further investigation.

      Even assuming Criminalist Scott’s testimony was outside the scope of the

minutes of testimony, her statements were cumulative with those already

contained in the admissible DCI report, and any error would be harmless. See

State v. Wilson, 878 N.W.2d 203, 218-19 (Iowa 2016) (noting, when a court

improperly admits evidence, the admission need not require reversal where the

erroneously admitted evidence was merely cumulative). Thus, any error would

be harmless.

               B.   Ineffective Assistance of Counsel

      Shutt also contends his trial counsel was ineffective for failing to object to

Officer Kleppe’s testimony regarding the report of the possible match received

from the DCI lab. Shutt alleges this testimony constituted inadmissible hearsay.

      Shutt claims prejudice resulted because this testimony tied him to the

crime scene and implicated him as the perpetrator. However, the testimony of

Criminalist Scott and her report directly tied Shutt to the crime scene. Shutt has

failed to prove “a reasonable probability that, but for the counsel’s [alleged]

unprofessional errors, the result of the proceeding would have been different.”

State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012) (citation omitted); see also id.

(finding the defendant must “show that the probability of a different result is

sufficient to undermine confidence in the outcome” (citation omitted)).

      AFFIRMED.
