                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0300
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN W. CHANEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Cheryl E. Traum,

District Associate Judge.



      Steven Chaney appeals his convictions for driving while barred as a habitual

offender, assault on persons engaged in certain occupations, driving under

suspension, and interference with official acts. AFFIRMED.



      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       A concerned citizen called 911 after seeing a man, later identified as Steven

Chaney, driving a vehicle “all over the road.” A Bettendorf patrol officer arrived at

the scene and pulled the keys from the ignition. Chaney got out of the vehicle and

“came at him.” Chaney also kicked a police sergeant.

       The State charged Chaney with driving while barred as a habitual offender,

two counts of assault on persons engaged in certain occupations, two counts of

driving under suspension, and two counts of interference with official acts. See

Iowa Code §§ 321.218, 321A.32(1), 321.555, 321.561, 708.3A(4), 719.1(1)(b)

(2016). A jury found him guilty as charged.

       On appeal, Chaney contends he was denied a fair trial based on “[t]he

State’s repeated and surreptitious references to alcohol and intoxication over the

duration of the trial.” The State preliminarily responds with an error preservation

concern.

       Chaney did not object to the alcohol-related evidence as it was introduced

at trial. The State argues he was required to do so to preserve error. See State

v. Martin, 704 N.W.2d 665, 669 (Iowa 2005) (“Generally, when a party makes no

objection to the reception of evidence at trial, the matter will not be reviewed on

appeal.” (quoting Wirtanen v. Provin, 293 N.W.2d 252, 257 (Iowa 1980))).

However, Chaney filed a pretrial motion in limine to exclude the phrase “intoxicated

driver,” a beer can recovered by the first officer, and “any testimony or evidence

regarding ‘alcohol.’” The district court summarily denied the motion. The ruling

left no doubt about the court’s view on the admissibility of the evidence. We
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conclude the ruling sufficed to preserve error. See State v. Daly, 623 N.W.2d 799,

800 (Iowa 2001). We proceed to the merits.

         Chaney argues the prosecutor’s efforts to “[s]hepard[] evidence before the

jury of [his] intoxication is of no relevance to the case.” See Shawhan v. Polk Cty.,

420 N.W.2d 808, 810 (Iowa 1988) (expressing “serious doubts whether the

evidence . . . would be relevant to any material issue”). He also asserts the

probative value of the evidence was outweighed by its prejudicial effect. Finally,

he contends the evidence deprived him of a fair trial. We begin and end with the

relevancy question. Evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Iowa R. Evid.

5.401.

         The State did not charge Chaney with operating a motor vehicle while

intoxicated. The State charged him with driving while barred, driving while under

suspension, assault on peace officers, and interference with official acts.

         The jury was instructed that driving while barred requires the State to prove

Chaney operated a motor vehicle on a public roadway with a barred driver’s

license. The jury was further instructed that driving under suspension required the

State to prove Chaney’s “right to operate a motor vehicle in the State of Iowa had

been suspended for having been declared a habitual traffic violator and/or failure

to pay fines owed to the State of Iowa.” The assault charge required proof of the

following elements:

                1. On or about the 3rd day of June, 2016, the defendant did
         an act which was intended to cause pain or injury, result in physical
         contact which was insulting or offensive, or place [the officer] in fear
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       of an immediate physical contact which would have been painful,
       injurious, insulting or offensive to [the officer].
               2. The defendant had the apparent ability to do the act.
               3. The defendant knew that [the officer] was a police officer.

Interference with official acts required the State to prove:

               1. On or about the 3rd day of June, 2016, the defendant knew
       [the officer] was a peace officer who was attempting to identify the
       defendant.
               2. The defendant knowingly resisted or obstructed [the officer]
       in identifying the defendant.

None of these crimes required proof of alcohol consumption or intoxication. In

summarizing the elements of the crimes during closing argument, the prosecutor

conceded as much. This fact alone would have augured in favor of granting the

motion in limine or, in the alternative, declining to make a final ruling until the

evidence was offered at trial. With the benefit of the district court’s unequivocal

denial of Chaney’s motion to exclude alcohol-related evidence, the prosecutor

proceeded to introduce extensive evidence on the subject.

       The State began by questioning the concerned citizen who called 911. The

citizen testified he made the call because he thought the driver was having a

medical emergency. The prosecutor asked the citizen to elaborate, and the citizen

stated he thought the driver “possibly could have been driving drunk.”           This

testimony may have been marginally relevant to establish why the concerned

citizen called 911. But the prosecutor did not stop there. He proceeded to ask the

citizen about his personal reasons for not wanting a drunk driver on the road and

elicited a response that he did not want his son killed by a drunk driver. He also

asked whether the citizen’s observations of Chaney coincided with his personal

knowledge of intoxication, whether he saw Chaney drinking beer, and the size of
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the beer can. Similarly, the prosecutor elicited testimony from the patrol officer

about the beer can and testimony about why the officer did not pursue an operating

while intoxicated (OWI) investigation. The prosecutor also asked the sergeant

about the aborted OWI investigation. None of this additional testimony was even

marginally relevant to the charges Chaney faced. The evidence was inadmissible

and should have been excluded. We conclude the summary denial of the motion

in limine, which resulted in the admission of this testimony, amounted to an abuse

of discretion. Cf. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 159 (Iowa 2004)

(concluding district court did not abuse its discretion in excluding evidence of the

tortfeasor’s intoxication); Tim McCandless, Inc. v. Yagla, No. 09-1738, 2011 WL

578692, *1 (Iowa 2011) (concluding district court erred in allowing the plaintiff to

present evidence of alcohol on an attorney’s breath).

       Our inquiry cannot end here because “[n]ot every ruling admitting irrelevant

evidence requires reversal.” McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa

2000) (citing Shawhan v. Polk Cty., 420 N.W.2d 808, 810 (Iowa 1988)). “Although

a presumption of prejudice arises when the district court has received irrelevant

evidence over a proper objection, the presumption is not sufficient to require

reversal if the record shows a lack of prejudice.” Id. (citing Shawhan, 420 N.W.2d

at 810). The record shows a lack of prejudice.

        Representing himself, Chaney skillfully cross-examined the officers and

established the alcohol-related evidence introduced by the State was irrelevant.

The following exchange with the patrol officer is instructive:

              Q. There was no OWI done, correct? A. Correct.
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               Q. [S]ince you didn’t do an OWI, it is safe to say that anything
         concerning or regarding an OWI is just speculation, because there
         was no OWI testing done, so therefore your statement in regards to
         my being intoxicated or the probability of me being intoxicated is pure
         speculation then? A. Correct.

And, the following question directed to the sergeant confirmed the irrelevancy of

the evidence: “Q. [S]o there’s no evidence for an OWI, right? A. That’s correct.”

Chaney effectively informed the jury to disregard the evidence.

         In addition, the evidence other than the inadmissible alcohol-related

evidence was overwhelming. See State v. Rodriguez, 636 N.W.2d 234, 244 (Iowa

2001).     On the driving-while-barred charge, the State introduced an official

document establishing the status of Chaney’s license. Chaney also conceded his

license was barred. Although he made a valiant effort to persuade the jury he was

not driving the vehicle, the citizen’s description of the driver and driver’s clothing

left little doubt he was the operator. As for the remaining crimes, the officers

testified to the suspension of Chaney’s license, his assaults on them, and his

interference with their attempts to identify him.           Neither Chaney’s cross-

examination of the State’s witnesses nor his direct testimony materially

undermined this evidence. Because the district court’s denial of the motion in

limine and the resulting admission of irrelevant evidence amounted to harmless

error, we affirm Chaney’s convictions for all the crimes.

         Chaney also argues the prosecutor committed misconduct in eliciting the

inadmissible alcohol-related testimony.           Assuming without deciding the

prosecutor’s questioning rose to the level of misconduct, Chaney could not

establish prejudice. See State v. Plain, 898 N.W.2d 801, 820-21 (Iowa 2017)
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(finding “strong evidence in support of” the defendant’s conviction).

     AFFIRMED.
