                IN THE SUPREME COURT OF IOWA
                              No. 11–0197

                           Filed June 8, 2012


STATE OF IOWA,

      Appellee,

vs.

PETER KELLY LONG,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Kurt L.

Wilke, Judge.



      The State seeks further review from a court of appeals decision

which vacated the defendant’s enhanced sentence of life in prison

without parole for a second conviction of sexual abuse or lascivious acts

with a child under Iowa Code section 902.14. DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, and Ricki L. Osborn, County Attorney, for appellee.



      Mark C. Smith, State Appellate Defender, Emily Zerkel, Student

Legal Intern, and Shellie L. Knipfer, Assistant Appellate Defender, for

appellant.
                                    2

ZAGER, Justice.

      Peter Kelly Long was convicted of third-degree sexual abuse in

violation of Iowa Code sections 709.1(3) and 709.4(2)(b) (2009). Based on

two 1996 convictions for lascivious acts with a child, the district court

found that Long had committed a class “A” felony under section 902.14

and sentenced Long to life in prison without the possibility of parole.

Long appealed, claiming the district court abused its discretion when it

allowed the State to reopen the record after the State had rested and

after the defense had made a motion for judgment of acquittal during the

enhancement trial. We transferred the case to the court of appeals. The

court of appeals vacated the judgment and remanded the case to the

district court to render a verdict on the enhancement based solely on the

evidence introduced prior to the reopening of the record.         The State

sought further review, which we granted. We conclude the district court

did not abuse its discretion in reopening the record under the

circumstances of this case. Accordingly, we vacate the decision of the

court of appeals and affirm the judgment of the district court.

      I. Background Facts and Procedural History.

      In February of 2010, A.M., who was twelve years of age, spent the

weekend at the home of Peter and Tanya Long.           A.M. was going to

babysit the Longs’ children while the couple did some work around their

house.   After A.M. had gone to bed, Long entered her bedroom and

sexually assaulted her. A.M. called her mother who came to the house,

picked A.M. up, and drove her to the hospital where police were informed

of the assault.

      On July 15, Long was charged by trial information with third-

degree sexual abuse in violation of Iowa Code sections 709.1(3) and

709.4(2)(b).   The trial information also notified Long of the potential
                                            3

enhancement of his sentence under section 902.14 based on Long’s prior

convictions for lascivious acts with a child.                Long pled not guilty, and

trial commenced on November 30. On December 1, the jury found Long

guilty of third-degree sexual abuse.

         Long   waived    his right    to       a    jury    trial   on the      sentencing

enhancement under section 902.14 based on his prior convictions, and

the issue was tried to the district court. In support of the enhancement,

the State offered certified copies of Long’s two convictions from December

30 and 31, 1996. Both of these convictions were for lascivious acts with

a child in violation of Iowa Code section 709.8 (1995), a class “D” felony.

The particular subsection was not indicated on the sentencing orders.

The State also called three witnesses in support of the enhancement:

Jason Bahr, a detective with the Webster County Sheriff’s Office who

investigated    the    incident     involving        A.M.;    Barbara      Ann    Krug,   a

probation/parole officer with the Department of Correctional Services

who supervised Long at a residential work facility; and Russell Goebel,

another probation/parole officer. All three identified Long as the person

who had previously been convicted of committing lascivious acts with a

child.     Additionally, through Bahr, the State offered a videotaped

interview of Long from 2010 where he discussed his past offenses. The

State then rested.

         Long immediately moved for a judgment of acquittal, claiming the

State had not met its burden regarding the enhancement. Specifically,

Long pointed out that Iowa Code section 902.14 (2009) only applies to a

lascivious acts conviction under subsections 709.8(1) or (2), whereas

convictions for violations of sections 709.8(3) or (4) do not lead to an

enhanced sentence.          Since the evidence provided by the State only

established     Long     violated   section         709.8,   but     not   the   particular
                                    4

subsection of the statute that was violated, Long argued the State had

failed to prove beyond a reasonable doubt that Long was guilty of the

applicable subsections subjecting him to the enhanced sentence.

Therefore, the enhancement should be denied. The State responded by

arguing that the only issue at the enhancement trial was the defendant’s

identity and not which subsection he violated. The district court took the

motion for judgment of acquittal under advisement.

      The next morning, on December 2, the State moved to reopen the

record, and an expedited hearing on this motion was conducted later

that day. The State sought to reopen the record to call the court reporter

from the 1996 guilty plea proceedings.        This person could lay the

foundation for the transcripts from the guilty plea proceeding where Long

admitted touching the genitals of two children, which would violate

subsection 709.8(1), and would satisfy the enhancement requirements of

section 902.14.     The State pointed out that Iowa Rule of Criminal

Procedure 2.19(9), which governs the trial of questions involving prior

convictions, only requires the State to prove the identity of the defendant

is the same as the person named in the prior conviction and that the

defendant was represented by counsel at the time of the prior conviction.

The rule also requires that if the defendant has any other objections to

the prior conviction evidence, he must assert those objections prior to

trial. Iowa R. Crim. P. 2.19(9). The State argued that by not asserting

the issue of which subsection of 709.8 was violated in 1996, Long waived

his right to bring the objection.

      Long claimed that his defense strategy was based on the minutes

of testimony the State provided at the beginning of the case.         Long

claimed that he knew the minutes did not include any documents that

would indicate which subsection of 709.8 he violated, or any witness who
                                    5

had knowledge of which subsection of 709.8 he violated. There was no

mention in the minutes of testimony of transcripts of his guilty plea

proceedings.   Long argued this would result in unfair surprise and he

would be unfairly prejudiced if this information were allowed to be

introduced at this late stage.   Long’s attorney claimed the State “just

blew it. They want a second bite at the apple.”

      On December 6, the district court granted the State’s motion to

reopen the record. In its order, the district court quoted from State v.

Kukowski, 704 N.W.2d 687, 693 (Iowa 2005), and found that under rule

2.19(9), Long had not waived his right to object.          However, after

balancing the seven factors this court set forth in State v. Teeters, 487

N.W.2d 346, 348 (Iowa 1992), the court felt it was appropriate to reopen

the record. The court noted that the evidence the State sought to admit

was not introduced based on a mere oversight. The court also concluded

that Long would not be prejudiced by this information since the

enhancement had been an issue since the trial information had been

filed. The court also noted that this was a bench trial, so there was no

danger that a jury might accord undue weight to the newly admitted

evidence. Also, the evidence was admissible and material. Finally, the

court noted that the State made its motion only one day after the bench

trial commenced, and the court had not yet made a ruling on the

enhancement issue.      Accordingly, reopening the record would not

inconvenience the court or the parties. The court concluded by noting

“the significance of the evidence compels an order to reopen the record.”

      On December 16, the State filed a motion to amend trial

information and minutes of testimony.      The supplemental minutes of

testimony included listing an additional witness, Tom Kierski, a court

reporter who could lay the foundation to introduce the transcripts of
                                     6

Long’s prior guilty pleas and sentencing. On December 20, over Long’s

objection, the court accepted Kierski’s testimony and admitted the

shorthand notes and transcripts from Long’s 1996 guilty pleas and

sentencing. In the transcript of the guilty pleas, Long admits to touching

the genitals of two girls under the age of twelve. This would constitute a

violation of section 709.8(1), one of the offenses which makes Long

subject to an enhanced sentence under section 902.14. Following the

reopened enhancement trial, the court found the enhancement was

applicable, and Long was guilty of the class “A” felony under section

902.14(1)(c).   Long was sentenced to life in prison without parole on

February 3, 2011.

      Long filed his appeal on February 4, and we transferred the case to

the court of appeals.     The court of appeals noted that rule 2.19(2)

requires the State to give the defendant the minutes of a witness’s

testimony ten days before trial. The State provided Long the amended

trial information and minutes for Kierski’s testimony four days prior to

the reopened trial on the enhancement. The court of appeals noted that

if the State had notified Long that it intended to call Kierski, Long would

have realized the State could prove the enhancement.          The court of

appeals concluded that Long lost the opportunity to attempt to plea

bargain and “it is the lost opportunity that creates the undue prejudice

in reopening the record and allowing an additional witness.” According

to the court of appeals, by reopening the record after Long had been

convicted of the instant offense, Long lost a viable trial strategy.

Accordingly, the court of appeals held that “allowing Kierski’s testimony

violated rule 2.19(2), thereby resulting in surprise and unfair prejudice to

Long, [and therefore] we find the district court abused its discretion in

reopening the record.” The court remanded the case to the district court
                                     7

for a determination of whether the evidence offered prior to reopening the

record was sufficient to support the enhancement.        The State sought

further review which we granted.

      II. Standard of Review.

      A district court has broad discretion to reopen the record to allow

the State to introduce further evidence. State v. Mason, 203 N.W.2d 292,

295–96 (Iowa 1972) (“We have allowed wide leeway in reviewing

discretion of trial court in permitting a case to be reopened.”); see also

Teeters, 487 N.W.2d at 348 (finding the court’s refusal to reopen the

record to allow the defendant to present new evidence is also

discretionary).   A court abuses its discretion when its “discretion was

exercised on grounds or for reasons clearly untenable or to an extent

clearly unreasonable.” Teeters, 487 N.W.2d at 349 (citation and internal

quotation marks omitted).

      We have also noted that the discretion afforded in these situations

“must necessarily be especially broad.” Id. In describing the scope of

this broad discretion, we have stated that

      a trial court . . . may allow reopening of the case at any stage
      of the trial, including after argument has commenced, if it
      appears “necessary to the due administration of justice.”
      Such a decision will ordinarily not be interfered with by a
      reviewing court.

           . . . [T]he decision whether to reopen the case [is] a
      matter of discretion with the district court which [is] in the
      best position to determine what [is] “necessary and
      appropriate to achieve substantial justice.”

Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 267 (Iowa 1998) (citations

omitted).   With these principles in mind, we now review the district

court’s decision to reopen the record in this case.
                                     8

      III. Discussion.

      Long claims the district court abused its discretion when it

reopened the record of the trial on the enhancement in order to receive

new evidence. In order to properly ground his claim, we will begin by

describing the nature of the trial that was reopened to allow for

additional evidence.

      A. Statutory Framework. Section 902.14 enhances the penalty

of anyone who violates sections 709.3, 709.4 or section 709.8(1) or (2) a

second or subsequent time. Iowa Code § 902.14(1). “When a defendant

faces a charge that imposes an enhanced penalty for prior convictions,

our law, in turn, imposes a two-stage trial.” Kukowski, 704 N.W.2d at

691. The first stage of the trial requires the State to prove the defendant

is guilty of the current offense. Id. In this case, Long was found guilty of

third-degree sexual abuse, a violation of section 709.4, and he has not

appealed this conviction.

      Following this first conviction, the trial moves to its second phase:

      If found guilty of the current offense, the defendant is then
      entitled to a second trial on the prior convictions. The prior
      convictions must be proven by the State at the second trial
      beyond a reasonable doubt, just as the current offense must
      be established at the first trial. Generally, the State must
      prove the prior convictions at the second trial by introducing
      certified records of the convictions, along with evidence that
      the defendant is the same person named in the convictions.
      The State must also establish that the defendant was either
      represented by counsel when previously convicted or
      knowingly waived counsel.

Id. (citations and internal quotation marks omitted). This second trial is

governed by rule 2.19(9), which reads,

      Trial of questions involving prior convictions. After conviction
      of the primary or current offense, but prior to
      pronouncement of sentence, if the indictment or information
      alleges one or more prior convictions which by the Code
      subjects the offender to an increased sentence, the offender
                                      9
      shall have the opportunity in open court to affirm or deny
      that the offender is the person previously convicted, or that
      the offender was not represented by counsel and did not
      waive counsel. If the offender denies being the person
      previously convicted, sentence shall be postponed for such
      time as to permit a trial before a jury on the issue of the
      offender’s identity with the person previously convicted.
      Other objections shall be heard and determined by the court,
      and these other objections shall be asserted prior to trial of the
      substantive offense in the manner presented in rule 2.11. On
      the issue of identity, the court may in its discretion
      reconvene the jury which heard the current offense or
      dismiss that jury and submit the issue to another jury to be
      later impaneled. If the offender is found by the jury to be the
      person previously convicted, or if the offender acknowledged
      being such person, the offender shall be sentenced as
      prescribed in the Code.

Iowa R. Crim. P. 2.19(9) (emphasis added).

      B. The Decision to Reopen the Record.              In this case, Long

asserted his right to a trial on the question of his prior convictions,

though he waived his right to a jury trial. Prior to resting its case, the

State submitted certified copies of two 1996 convictions for lascivious

acts with a child in violation of Iowa Code section 709.8.         The State

presented evidence that Long was the same person as the one who had

been convicted in 1996 and also offered a videotaped interview of Long in

2010 where he told Detective Bahr that one of his 1996 convictions arose

out of an incident where he touched a girl who was riding behind him on

a motorcycle.    At that point the State rested and Long moved for a

judgment of acquittal on the enhancement, claiming that the State had

not proven beyond a reasonable doubt that Long had been previously

convicted of a violation of subsection 709.8(1) or (2), as opposed to (3) or

(4). The next day, the State moved to reopen the record. After a hearing,

the court granted the motion. Long has asked us to review this decision.

      It is well settled that a district court is given broad discretion to

allow a party to reopen the record and introduce evidence that was
                                     10

previously omitted. See State v. Jefferson, 545 N.W.2d 248, 250 (Iowa

1996); Teeters, 487 N.W.2d at 348–49; Mason, 203 N.W.2d at 295–96. A

rule that unequivocally prohibited the district court from reopening the

record after the State has rested is inconsistent with our rule that a

court has discretion over such matters because a hard and fast rule

would preclude the district court from exercising any discretion over

such an issue.   See, e.g., State v. Hager, 630 N.W.2d 828, 836 (Iowa

2001) (noting that “a fixed plea deadline is the very antithesis of

discretionary decision-making [because i]t precludes the exercise of

discretion”   (citation omitted)).   Stripping the district court of the

discretion to allow the State to reopen the record in a criminal trial

would, therefore, be contrary to our precedent. See Mason, 203 N.W.2d

at 295–96; State v. Moreland, 201 N.W.2d 713, 714–15 (Iowa 1972).

However, there are issues of justice and fairness to the defendant which

are implicated any time the court is asked by the State to reopen the

record. Allowing the State to reopen the record in a criminal case, after

the defendant has moved for a judgment of acquittal, poses a particular

concern for us. We are mindful that we must

      balance two competing concerns in reviews of this type: the
      defendant’s interest in fairness and the court’s search for
      truth.    This means negotiating two potentially poor
      outcomes: on the one hand, permitting the state to reopen
      its case after the defendant has identified a deficiency
      rewards the state for its laxity and in practical effect makes
      the defendant a prosecutorial arm of the state; on the other
      hand, excessive procedural rigidity risks reducing the trial to
      “a game of technicalities.”

State v. Freeman, 33 A.3d 256, 261 (Conn. App. Ct. 2011) (citations

omitted).

      Even though a district court is given the discretion to reopen the

record in a criminal prosecution, courts have held that reopening the
                                    11

record is more likely to be an abuse of discretion if the State is

attempting to “fill a gap in its proof of a prima facie case.” 75 Am. Jur.

2d Trial § 303, at 539 (2007) (citing cases).      However, if “the proof

presented before resting was sufficient to sustain the charge,” then

courts are less likely to find the district court abused its discretion by

allowing the State to reopen the record.      Id.; see also Moreland, 201

N.W.2d at 714–15 (finding the district court did not abuse its discretion

in reopening the record to admit the actual drugs the defendant was

accused of selling, but stating “we do not intimate that the State [ha]d to

introduce the hashish in order to make a prima facie case”).

      We have identified seven factors that the district court should

consider before exercising its discretion and reopening the record:

      (1) the reason for the failure to introduce the evidence;
      (2) the surprise or unfair prejudice inuring to the opponent
      that might be caused by introducing the evidence; (3) the
      diligence used by the proponent to secure the evidence in a
      timely fashion; (4) the admissibility and materiality of the
      evidence; (5) the stage of the trial when the motion is made;
      (6) the time and effort expended upon the trial; and (7) the
      inconvenience reopening the case would cause to the
      proceeding.

Teeters, 487 N.W.2d at 348 (citing 75 Am. Jur. 2d Trial § 382 (1991), now

found at 75 Am. Jur. 2d Trial § 298, at 532–33).       These factors were

explicitly enumerated for the first time in Teeters.   The district court’s

written ruling on the motion to reopen the record identified and analyzed

how each of the factors listed in Teeters applied to the facts of this case.

This clear and explicit ruling assists in our appellate review.         On

appellate review, we will consider the same factors analyzed by the

district court and determine whether the district court’s “ ‘discretion was

exercised on grounds or for reasons clearly untenable or to an extent
                                          12

clearly unreasonable.’ ”       Teeters, 487 N.W.2d at 349 (quoting State v.

Morrison, 323 N.W.2d 254, 256 (Iowa 1982)).

       The first factor we will examine in determining whether the district

court abused its discretion by reopening the record is whether the State

introduced evidence that Long was convicted of a violation of subsection

709.8(1) or (2), as opposed to (3) or (4), prior to reopening the record. If

the State needed to reopen the record to make its prima facie case, then

an abuse of discretion becomes more likely. State v. McKay, 723 N.W.2d

644, 648 (Neb. Ct. App. 2006) (“Also important [to the finding of an

abuse of discretion] was the underlying conclusion that the evidence

adduced by the State prior to resting was, in fact, insufficient.”).                For

example, the Connecticut Supreme Court overturned one defendant’s

conviction after the district court judge allowed the prosecution to reopen

the record in response to a defendant’s motion to dismiss. State v. Allen,

533 A.2d 559, 566 (Conn. 1987). The court held

       that when the state has failed to make out a prima facie
       case because insufficient evidence has been introduced
       concerning an essential element of a crime and the
       defendant has specifically identified this evidentiary gap in a
       motion for judgment of acquittal, it is an abuse of the trial
       court’s discretion to permit a reopening of the case to
       supply the missing evidence.

Id. We now turn to the evidence offered by the State in this case, prior to

its motion to reopen the record, to determine whether it had provided

sufficient evidence to make a prima facie case.

       The State introduced evidence that Long had been convicted of a

violation of section 709.8.        The four subsections of Iowa Code section

709.8 (1995) describe substantially the same conduct as the subsections

listed in the 2009 Code. 1 Compare Iowa Code § 709.8 (1995), with Iowa

       1In 1996, the legislature amended section 709.8(3) by adding language

prohibiting a person from “solicit[ing] a person to arrange a sex act with a child.” 1996
                                       13

Code § 709.8 (2009). The subsections in both Code sections state that a

person commits the crime of lascivious acts with a child when, among

other things, the person does any of the following:

      1. Fondle or touch the pubes or genitals of a child.

      2. Permit or cause a child to fondle or touch the person’s
         genitals or pubes.

      3. Solicit a child to engage in a sex act.

      4. Inflict pain or discomfort upon a child or permit a child to
          inflict pain or discomfort on the person.

Iowa Code § 709.8 (1995); see also Iowa Code § 709.8 (2009). In order

for Long’s previous offense to qualify for section 902.14’s enhanced

sentencing provisions, the State would have to show that Long violated

subsections 709.8(1) or 709.8(2), as opposed to subsections 709.8(3) or

709.8(4). Iowa Code § 902.14(1)(c) (2009). The certified copies of Long’s

convictions do not indicate what subsection he was convicted under.

      In addition to the certified copies of the convictions, the State

played a videotape where Long discussed his previous convictions with

Detective Bahr. The videotape was introduced prior to the State resting.

Long stated that he was convicted in 1996 for an incident that occurred

involving a young girl who “was riding on a motorcycle and I reached

back and was touching her and things like that.”             The conduct Long

admits to in the videotape would only fall under subsection 709.8(1),

fondling the pubes or genitals of a child. Iowa Code § 709.8(1) (1995). It

does not describe any of the other conduct listed in subsections 709.8(2)

through (4).    Id. § 709.8(2)–(4).     In response to Long’s motion for a

judgment of acquittal, the district court noted that based on Long’s
____________________________
Iowa Acts ch. 1062, § 1. In 2005, the legislature lowered the minimum age of the
offender from eighteen to sixteen. 2005 Iowa Acts ch. 158, § 535. Neither of these
changes has any bearing on the outcome of this case.
                                     14

comments on the videotape, and the certified copies of the convictions

that had been submitted to the court, the State had probably met its

burden of proof. Since the State had provided some evidence that Long’s

1996 conviction for lascivious acts with a child fell under 709.8(1) prior

to reopening the record, it may not have been necessary for the State to

introduce the evidence in order to make a prima facie case that Long

violated section 709.8(1). See Moreland, 201 N.W.2d at 715. The fact

that there was some evidence submitted as to which subsection Long

violated weighs against finding an abuse of discretion by reopening the

record, especially in a case such as this one where the court reopened

the record to confirm what it already suspected.

      1. The reason for the State’s failure to introduce the transcripts of

Long’s guilty pleas.     When determining whether it is appropriate to

reopen the record, we also note “the reason for the failure to introduce

the evidence,” just as the district court did. See Teeters, 487 N.W.2d at

348. In this case, the State believed that because the defendant had not

raised other issues prior to trial, the State would only be required to

prove the defendant’s identity and the fact that he was represented by

counsel when he was convicted in 1996. When a defendant asserts his

right to a trial on an enhancement, rule 2.19(9) explicitly requires the

State to prove identity and representation.      Iowa R. Crim. P. 2.19(9).

However, the rule goes on to state that “[o]ther objections shall be heard

and determined by the court, and these other objections shall be

asserted prior to trial of the substantive offense in the manner presented

in rule 2.11.”   Id.   When addressing habitual offender statutes in the

past, we have held “that a defendant who asserts the habitual offender

statute is not applicable must interpose his objections prior to the trial of

the underlying charge. If he does not do so, the objections are waived.”
                                     15

State v. Spoonmore, 323 N.W.2d 202, 203 (Iowa 1982).           Rather than

objecting through a rule 2.11 motion, Long did not raise the subsection

issue until after the State had rested. However, the district court found

that Long had not “waived” the issue, and the State has not appealed

this ruling. Accordingly, we will not review that issue in this opinion.

      Even though Long did not waive the right to raise the subsection

issue at the enhancement stage of his trial, it still bears on the reason

the evidence was not offered. In State v. Talbert, we noted that

      when the judgment entry does not designate the offense in
      the prior judgment, the State must supplement the judgment
      entry in that respect by introducing other parts of the record
      that do show the crime which was charged and for which the
      defendant was convicted and sentenced.

622 N.W.2d 297, 302 (Iowa 2001).          We also suggested that when the

record of a conviction is uncertain, a transcript of the criminal

proceeding might establish exactly what law the defendant previously

violated. Id.

      While there may have been sufficient evidence to find that Long

violated section 709.8(1), the district court felt that it was best to reopen

the record to allow the State to introduce a transcript of the plea.
Omission of evidence by accident or inadvertence is a proper reason to

reopen the record. See Moreland, 201 N.W.2d at 715 (Iowa 1972); see

also In re J.E.F., 409 A.2d 1165, 1166 (Pa. 1979) (“This Court has

previously found it proper to reopen a case to allow the introduction of

additional evidence where the evidence has been omitted by accident,

inadvertence, or even because of mistake as to its necessity but not

where the omission was intentional.” (citations omitted)); 75 Am. Jur. 2d

Trial § 298, at 532.
                                    16

      There is no indication that the State intentionally omitted the

evidence that was admitted when the case was reopened or that the

evidence was not found based on the State’s lack of diligence.          The

reason the State did not offer the evidence that it sought to offer once the

record was reopened was that Long had not raised any other objections

under rule 2.19(9), which led the State to believe there were no other

issues to be tried at the enhancement phase of the proceeding. Criminal

trials are a search for truth and should not be turned into “a game of

technicalities.” Freeman, 33 A.3d at 261 (citation and internal quotation

marks omitted). The reason for reopening the record does not support

the conclusion that the district court abused its discretion.

      2. Surprise and unfair prejudice as a result of reopening the record.

The district court considered the surprise or unfair prejudice that Long

might suffer if the State were allowed to reopen the record. Surprise and

unfair prejudice are legitimate and important considerations when

deciding a motion to reopen the record. See Teeters, 487 N.W.2d at 348.

In Long’s brief, he claims that he was unfairly prejudiced when the

district court reopened the record and then “erroneously allowed [the

State] to amend the minutes of testimony in violation of rule 2.19(2).”

Rule 2.19(2) requires the State to provide the defense with minutes of

testimony ten days before trial. Iowa R. Crim. P. 2.19(2).

      If the prosecuting attorney does not give notice to the
      defendant of all prosecution witnesses (except rebuttal
      witnesses) at least ten days before trial, the court may order
      the state to permit the discovery of such witnesses, grant a
      continuance, or enter such other order as it deems just
      under the circumstances.

Id. r. 2.19(3).   If “no less severe remedy is adequate to protect the

defendant from undue prejudice,” the court may exclude the witness. Id.
                                    17

      In its December 6 order, the district court granted the motion to

reopen the record and later allowed the State to amend the trial

information and minutes of testimony.       The continued trial on the

enhancement was scheduled for December 20.           The State filed the

minutes of Kierski’s testimony, including the transcripts of Long’s guilty

plea, on December 16. At the hearing on December 20, Long objected to

Kierski’s testimony, noting that the State had only provided four days’

notice. In response, the State pointed out that there were remedies other

than exclusion, such as a continuance.       The district court took the

motion under advisement and heard the testimony. Ultimately, the court

accepted the evidence, and based on the transcripts submitted that day,

the court concluded Long’s 1996 conviction fell under subsection

709.8(1) and therefore satisfied the requirements of section 902.14. In a

subsequent motion for a new trial, Long again claimed that the State

should not have been allowed to call Kierski based on inadequate notice.

This motion was denied.     On appeal, Long argues that reopening the

record to receive the new evidence “was a surprise and unfairly

prejudicial” and it meant that Long did not have “fair notice of the

evidence to be used against him.”

      There can be no doubt that Long was prejudiced by the admission

of Kierski’s testimony and the transcripts of Long’s guilty pleas.    The

question is whether that prejudice was unfair. See Teeters, 487 N.W.2d

at 348. To make this determination, we will review the context in which

the district court made the decision to reopen the record and accept the

new evidence. On July 15, 2010, nearly five months before the trial, the

State filed a trial information indicating that the State would be seeking

the class “A” felony enhancement under section 902.14 based on Long’s

prior convictions for lascivious acts with a child. A notice of additional
                                   18

minutes was filed on October 14.     This notice indicated that Detective

Bahr would testify regarding his investigation and the interview he

conducted of Long and that he would lay a foundation to introduce a

videotape of Long’s interview. It also included the copies of Long’s 1996

convictions. A second notice of additional minutes of testimony was filed

October 28.    This notice indicated that Barb Krug and Russ Goebel

would both be called to testify regarding their interactions with Long

through their employment with the Department of Correctional Services

in Fort Dodge.    The minutes of their testimony indicated they would

discuss the defendant’s 1996 convictions for lascivious acts with a child

and would “lay a foundation for any record of conviction, including

records within the possession of the probation/parole office and copies of

the original conviction.”

      If Long’s strategy was to wait until the State rested in the

enhancement phase of the proceeding and then move for a judgment of

acquittal, the variables at play in this case made that strategy risky at

best. The district court noted that Long had been apprised of the fact

that his prior sex offenses would be the basis for enhancing his sentence

since the trial information was first filed.   Based on the October 14

minutes, Long knew that Detective Bahr, who he had described his prior

offense to, would be called as a witness. Bahr’s testimony authenticated

a videotape of Long discussing his prior conviction where he admitted

touching a girl who was riding on a motorcycle behind him. Based on

the October 28 minutes, Long also knew that his probation officers

would be called to testify and that their records might be entered into

evidence. In short, it was possible that far more than just copies of his

convictions would be entered into evidence.
                                    19

      There were other potential pitfalls to Long’s strategy of relying

solely on the subsection issue. There was the risk that the district court

would reopen the record and allow the State to present more detailed

evidence. Additionally, the district court judge who heard the trial in the

instant prosecution was the same judge who conducted the guilty plea

proceedings and sentenced Long for his prior offenses in 1996. Since the

prior convictions were entered by the same court, the district court

considered taking judicial notice of the entire court file of Long’s 1996

convictions.   As discussed above, it was also possible that the district

court could have found any arguments other than identity and

representation had been waived because Long did not raise the

subsection issue prior to trial. See Iowa R. Crim. P. 2.19(9). Since the

district court did not take judicial notice of the court files from Long’s

prior convictions, or deem the subsection issue waived, we will not

comment on whether choosing either of these options would have been

proper. We mention these alternate outcomes merely to point out the

uncertainty that accompanied Long’s decision to proceed as he did.

      We also take this opportunity to note that even though Long claims

the decision to reopen the record and allow the State to amend the

minutes of testimony unfairly prejudiced him, he does not say what he

would have done differently if Kierski’s name would have been given to

him ten days prior to trial, or a continuance granted.       The court of

appeals stated

      Long contends he was banking on the State’s inability to
      prove the enhancement with the witnesses listed in the
      original minutes, and if the State had provided notice of the
      stronger enhancement evidence before the trial on the
      substantive offense, he would have had the option of
      pursuing a plea agreement with the State.
                                       20

The court of appeals went on to note “it is the lost opportunity [to plea

bargain] that creates the undue prejudice in reopening the record and

allowing an additional witness.”        The State’s application for further

review correctly points out that this argument “is conjecture. There is no

record to show either [Long] would have made such an overture under

any circumstances, or that the State would have entertained it.”

      We agree with the State for two reasons. First, despite the court of

appeals opinion, we do not see where Long has argued that it was the

lost opportunity to plea bargain that resulted in unfair prejudice. This

argument is not made in any of the pleadings or briefs submitted before

the court of appeals. Since Long did not make this argument, he did not

produce or point to any evidence that would support the idea that he

would have sought a plea bargain had he known that Kierski would

testify. Second, even if Long had offered evidence that he would have

sought a plea bargain, the State is under no obligation to engage in plea

bargaining “because a defendant has no right to be offered a plea.”

Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d

379, 392 (2012). Since Long had no right to be offered a plea, we do not

see how the denial of the opportunity to plea bargain caused Long to

suffer undue prejudice in this case.

      In summary, we do not feel Long was unfairly prejudiced by the

district court’s decision to reopen the record and hear Kierski’s

testimony.    The evidence listed in the October 14 and 28 minutes of

testimony may have been sufficient to find Long’s prior conviction was a

violation of subsections 709.8(1) or 709.8(2) and therefore qualified him

for enhancement under section 902.14. Once Long made his objection,

there were a number of possible courses of action the district court might

have taken.    One possible course, the one taken by the district court,
                                    21

was reopening the record to verify what the district court already

suspected. Long has not shown how reopening the record and allowing

the State to call Kierski impacted Long’s trial strategy in any significant

way.    Accordingly, we do not believe that reopening the record and

allowing Kierski to testify unfairly prejudiced Long.

       3.   Other factors.   Another factor the district court properly

considered in this case was the timing of the request to reopen the

record. Teeters, 487 N.W.2d at 348. One reason that courts consider

the timing of the request to reopen the record “is that a jury may accord

undue weight to evidence which is admitted close to the time

deliberations begin.” People v. Rodriguez, 199 Cal. Rptr. 433, 436 (Cal.

Ct. App. 1984). However, in this case, the enhancement trial was before

a judge, and it was a very short proceeding.       Therefore, there is little

worry that the timing of the evidence would lead to misuse of the

information.    Also, since there was no jury, there were no jury

instructions that had been submitted to the jury that might have needed

to be modified. See Teeters, 487 N.W.2d at 349.

       Timing considerations can also take into account the stage of the

trial when the motion was made, the prompt disposition of the case, and

any inconvenience to the court. See Teeters, 487 N.W.2d at 348; see also

75 Am. Jur. 2d Trial § 298, at 533. In this case, the jury trial on the

current offense had just ended and Long had been convicted. Long had

waived his right to a jury trial on the issue of the enhancement, so any

determinations concerning the evidence presented or enhancements

would be made by the court.      The district court judge had just heard

from three witnesses, seen copies of Long’s convictions and seen a

videotape of him briefly describing what conduct led to his prior

conviction. Long moved for a judgment of acquittal, and the motion was
                                          22

taken under advisement. The next morning, the State moved to reopen

the record.

       The judge in this case was in the best position to assess any

potential inconvenience or difficulties reopening the record would pose.

As the district court noted, however, the enhancement issue had not yet

been   decided,     and     therefore,    reopening      the    record    would    not

inconvenience the proceeding. This is not a situation where there was

concern that the trial would be unduly prolonged or where reopening the

case   threatened    “the    orderly     trial    process[]    fundamental    to   our

jurisprudence.” People v. Olsen, 313 N.E.2d 782, 784 (N.Y. 1974). The

timing of the ruling does not favor an abuse of discretion.

       Finally, we must consider the evidence that was admitted when the

court allowed the record to be reopened. See Teeters, 487 N.W.2d at 348

(noting that the court should consider the admissibility and materiality of

the evidence); see also Rodriguez, 199 Cal. Rptr. at 436 (noting that

admitted “evidence was decisive on the issue”). The State wanted to call

a court reporter to lay the foundation to admit transcripts of Long’s guilty

pleas to lascivious acts with a child.                 The evidence was clearly

admissible. As part of Long’s pleas, he admitted touching the genitals of

two girls under the age of twelve.               This is undisputed evidence that

Long’s conviction fell under section 709.8(1) and would therefore qualify

him for sentencing enhancement under section 902.14.                     The evidence

was consistent with, but much more definitive than, Long’s statements to

Detective Bahr.     This clearly admissible evidence confirmed what the

court had already heard from Long on the videotape and clearly “aided

the court in its search for truth.” Freeman, 33 A.3d at 261. This factor

also favors upholding the court’s decision to reopen the record.
                                     23

      Long exercised his right to require the State to prove beyond a

reasonable doubt that he was subject to sentencing enhancement based

on his prior convictions. Long was also allowed to exercise his right to

remain mute and require the State meet its burden of proof. The rule

governing these trials requires the State to prove that Long was the same

individual convicted in the prior proceeding and that he was represented

by counsel at the prior proceeding. If Long had other issues regarding

his prior convictions, he needed to raise them before trial or they could

be waived. He failed to do so. In response, the State prepared a case

that addressed only identity and representation by counsel. When Long

belatedly raised another issue, the district court did not rule the issue

was waived, or decide to take judicial notice of the court files in Long’s

previous cases, but instead reopened the record in response to Long’s

motion for a judgment of acquittal. This decision was not made in haste,

as evidenced by the district court’s well reasoned, written ruling on the

matter. It was made only after careful consideration by the district court

of the briefs submitted by counsel and after hearing the arguments of

counsel. This careful consideration allowed the district court to fully and

fairly “balance two competing concerns . . . : the defendant’s interest in

fairness and the court’s search for truth.” Id. The ruling to reopen the

record under the facts of this case was not an abuse of discretion.

      IV. Disposition.

      The district court was faced with a variety of competing interests

and alternative courses of action.    The court might have deemed the

issue waived, or acquitted or convicted the defendant based solely on the

record before the court at that time. Instead, the district court chose to

reopen the record and receive the transcripts of the defendant’s pleas to

the prior offenses. Given the specific facts of this case, reopening the
                                    24

record was not an abuse of discretion. Because Long has not claimed

any other errors, we affirm the judgment of the district court and vacate

the decision of the court of appeals.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Wiggins, J., who takes no part.
