                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0597
                              Filed June 19, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN JAMES ELPHIC,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.



      The defendant appeals from his conviction of forgery, a class “D” felony.

AFFIRMED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Jonathan Elphic, Fort Dodge, pro se.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Heard by Potterfield, P.J., and Doyle and May, JJ.
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POTTERFIELD, Presiding Judge.

       Jonathan Elphic appeals from his conviction for forgery, a class “D” felony.

Elphic maintains the district court violated his right to due process and abused its

discretion when it allowed the State to reopen the record after the prosecutor

indicated the State rested its case and Elphic moved for a judgment of acquittal

based on insufficient evidence.1 Elphic asserts his conviction should be vacated

for insufficient evidence.

I. Background Facts and Proceedings.

       Elphic was charged by trial information with one count of forgery. The trial

information identified Ana Palma Sierra as the person whose checks Elphic

allegedly presented to various stores to purchase items and obtain cash.

       Elphic entered a plea of not guilty, and a jury trial was scheduled to take

place in February 2018.

       On January 29, the State filed an application for the appointment of a

court interpreter, indicating an oral language interpreter was needed to interpret

the testimony of its witness, Palma Sierra, at the upcoming trial on February 8.

The next day, the court granted the application and appointed an interpreter for

the proceedings.


1 Elphic also filed a pro se supplemental brief in which he raised a number of issues.
Elphic does not cite any authority in support of the issues he raised, and his brief fails to
comply with a number of our rules of appellate procedure. See In re Estate of DeTar,
572 N.W.2d 178, 181 (Iowa Ct. App. 19997) (“We are not bound to consider a party’s
position when the brief fails to comply with the Iowa Rules of Appellate Procedure.”).
Because we hold pro se litigants to the same standard as Iowa attorneys, we do not
consider any of these issues. See id. (providing we must judge briefs by pro se litigants
at the same standard we judge those by Iowa attorneys and we may only consider the
pro se litigant’s claims “to the extent we believe we can do so without assuming a
partisan role and undertaking [their] research and advocacy”).
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       The jury trial took place on February 8. The State presented evidence that

Officer Dave Kelley interacted with Elphic at the local police station on October

19, 2017, in an unrelated matter.      As part of the interaction, Officer Kelley

searched Elphic’s pockets. When the officer did so, he found two checks in the

name of Palma Sierra. The checks were blank other than the signature line,

which contained “APS” signed on both. A few weeks later, Palma Sierra went to

the police department and gave officers notifications of insufficient checks she

had received from the corporate headquarters of Kwik Star, Casey’s, and Dollar

General.   Using the notifications, Officer Kelley contacted the local stores at

which the checks were presented to obtain any surveillance video that may exist

involving the transactions.

       The State introduced into evidence and played for the jury three videos of

transactions from the dates and times Palma Sierra’s checks were presented;

two of the three store clerks who accepted the checks identified Elphic as the

person in the video presenting the check in question.

       After the testimony of the third store clerk, the court asked the prosecutor

if he had another witness, and the prosecutor responded: “The States rests, Your

Honor.” The court then indicated it was taking a recess, and the jury left the

courtroom. Elphic moved for a judgment of acquittal, arguing “the State did not

present any evidence that Mr. Elphic did not have permission to use the checks

of Ms. Ana Palma Sierra.” When the court gave the prosecutor a chance to

respond, he stated: “Your Honor, um, I subpoenaed a witness who is not here

yet, and um, that is Ms. Palma. I could call the halls and see if she’s here.” The

following exchange then took place:
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             The Court: Why did you rest without doing that first?
             Prosecutor: Your Honor, I did not intentionally—I meant to
      indicate to the court that I don’t have a witness present so I said I
      wanted to rest.
             The Court: So you didn’t mean to say that?
             Prosecutor: No, Your Honor.
             The Court: Do you want to reopen your case at this point?
             Prosecutor: Yes, Your Honor. It’s a witness that is listed on
      my trial information. I’m sorry. What I wanted to indicate was that I
      wanted to take a short break.

Elphic resisted reopening the State’s case, arguing allowing the State to present

more evidence after stating it wished to rest would be prejudicial to Elphic. The

court responded, “I do think it would be prejudicial, but if the State made a

mistake. If you have a witness, we’ll see if you have a witness to call.” The State

then noted they had “been on the record the entire time. It’s been less than a

couple minutes.” Elphic made further record that he believed the court should

rule on his motion for judgment of acquittal rather than allowing the State to

present additional evidence. In response, the prosecutor stated:

             Your Honor, it was through inadvertence and complete lack
      of presence of mind that I said we rested. I knew full-well that I had
      one more witness. She was subpoenaed. The interpreter was
      communicated with just this morning to be here at or around two
      o’clock. I caught my mistake within less than two minutes of
      making it, and I don’t think it’s prejudicial.

The court responded:

              Again, I think what happened was just a mistake. [The
      prosecutor] subpoenaed this witness. He had to get a special court
      order to get an interpreter for the witness. In his opening he
      indicated that we would hear from this witness and that she would
      testify about this matter. I think he just misspoke. I think it was a
      mistake. I am going to allow the State to reopen.

      The State then called Palma Sierra to the stand to testify. She testified

she had closed the account the checks in question were written on in
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approximately 2013. She was unsure what had happened with the remaining

checks but believed she may have thrown them in the trash while cleaning years

later. Palma Sierra testified she never signs checks with her initials, did not sign

the checks in question, and did not authorize anyone to write checks from her

account—including Elphic.

       Elphic testified in his own defense.       He testified he believed he had

authorization to use the checks when he did so because a “friend that gave [him]

the checks said ‘here, you can use them but just make sure you pay me back.’”

He intended to pay the friend back when he received his next check. Elphic was

asked if the friend was pretending to be Ana Palma Sierra when she gave him

the checks, and he responded, “Apparently. Her name was [Ana]. It wasn’t who

the court has here.”

       The jury found Elphic guilty as charged.

       Before sentencing, Elphic filed a motion in arrest of judgment, reiterating

his argument that his motion for judgment of acquittal should have been granted

and the State should not have been allowed to reopen its case. The court denied

the motion, ruling it believed the State’s explanation of misspeaking when the

prosecutor stated “[t]he State rests” rather than asking for a short break or

recess. In support of its ruling, the court emphasized that it was clear from what

came before the prosecutor’s statement that he “meant to call that witness and

that witness did appear and he had an interpreter.” The court did not “think the

scenario was that [the prosecutor] mistakenly thought that he had proven his

entire case and decided to rest and was only then alerted to the mistake that he

made by [Elphic’s] motion for directed verdict.” The court believed “it was always
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[the prosecutor’s] intention to call the victim in this matter.”        The court then

sentenced Elphic to a term of incarceration not to exceed five years.

       Elphic appeals.

II. Discussion.

       Elphic maintains the district court abused its discretion when it allowed the

State to reopen the record to present evidence he did not have authorization or

permission to use the checks in question after he moved for judgment of acquittal

on those same grounds.2 We review a district court’s decision to allow the State

to reopen the record for an abuse of discretion.           See State v. Teeters, 487

N.W.2d 346, 349 (Iowa 1992).

       Elphic maintains the district court may only reopen the record in a few

enumerated circumstances: for the purpose of establishing venue, see State v.

Anderson, 228 N.W. 353 (Iowa 1929); to further the testimony of a previously

offered prosecuting witness, see State v. Terry, 203 N.W. 232 (Iowa 1925); to

supplement or provide clarification to previously entered evidence, see State v.

Mason, 203 N.W.2d 292 (Iowa 1972); to introduce the actual drugs that had been

referred to throughout the State’s presentation of evidence prior to resting, see

State v. Moreland, 201 N.W.2d 713 (Iowa 1972); and to clarify an Iowa Code

section related to the sentencing enhancement, see State v. Long, 814 N.W.2d

572 (Iowa 2012). He asserts the court may not allow the State to reopen its case

to prove an element of the crime.




2
 Elphic also asserts the court allowing the record to be reopened violated his right to
due process. He cites no authority to raise this issue to one of constitutional magnitude.
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       We agree our supreme court has found no abuse of discretion when a

district court reopened the record in each of the enumerated instances, but it

does not follow that the district court’s authority to reopen the record is limited to

only those instances. “A district court has broad discretion to reopen the record

to allow the State to introduce further evidence.” Long, 814 N.W.2d at 575; see

also State v. Mason, 203 N.W.2d 292, 295 (Iowa 1972) (“We have allowed wide

leeway in reviewing discretion of trial court in permitting a case to be reopened.”).

“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.” Long, 814 N.W.2d at 577.

       That being said, “[a]llowing the State to reopen the record in a criminal

case, after the defendant has moved for a judgment of acquittal, poses a

particular concern.” Id. Additionally, “reopening the 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.’” Id. at 578 (citation omitted). The supreme court enumerated seven

factors to consider in determining whether the court abused its discretion in

allowing the State to reopen the case:

       (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.
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       Here, we question whether we need to consider the factors outlined

above. The district court concluded the prosecutor misspoke when he stated he

rested as he had no intention to close the State’s case-in-chief at that time. See,

e.g., State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (recognizing that we give

“considerable deference” to the trial court’s credibility findings).             This

determination is supported by the facts that the prosecutor mentioned Palma

Sierra by name during opening arguments and had applied for and received prior

court approval for an interpreter for her testimony at trial. Additionally, it appears

both the interpreter and witness showed up for trial at the previously scheduled

time—after the prosecutor said he rested—without the prosecutor having to take

further steps to secure either person’s presence. Concluding the prosecutor’s

slip of the tongue was enough to rest the State’s case would seem to engage in

“excessive procedural rigidity,” which “risks reducing the trial to ‘a game of

technicalities.’” Long, 814 N.W.2d at 577 (citation omitted).

       If we were to consider the factors, we would find they weigh in favor of

allowing the State to reopen its case. First, based on the determination the State

always intended to call Palma Sierra, we cannot say the State failed to introduce

the evidence Elphic did not have authority or permission to use the checks, the

State just had not introduced the evidence yet. Additionally, there is no surprise

or unfair prejudice, as the State listed Palma Sierra in the minutes of evidence

and mentioned her by name during opening arguments as a person who would

testify. While Palma Sierra’s testimony prejudiced Elphic, as the district court

stated, the prejudice was not unfair since Elphic had been given notice of the

testimony and does not claim its admission into evidence changed his trial
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strategy or decision to testify. The State secured the evidence of Palma Sierra’s

testimony by subpoenaing her and was prepared to offer her testimony with the

aid of an appointed interpreter. The evidence her testimony provided was both

admissible and material to the case, and there was little to no inconvenience in

reopening the case as it occurred—according to the prosecutor’s uncontested

statement on the record—about two minutes after he first stated he rested.

       The district court did not abuse its discretion in allowing the State to call

Palma Sierra to testify. Because her testimony was properly part of the record,

substantial evidence supports the jury’s verdict convicting Elphic of forgery.

       AFFIRMED.
