                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0574
                             Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYLOR IGOU,
     Defendant-Appellant.
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      Appeal from the Iowa District Court for Clay County, Charles K. Borth,

District Associate Judge.



      Tylor Igou appeals his conviction for domestic abuse assault causing bodily

injury following a jury trial. AFFIRMED.



      Jack B. Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, Presiding Judge.

       A jury determined Tyler Igou assaulted his girlfriend, and the district court

entered judgment and sentence for domestic abuse assault causing bodily injury.

See Iowa Code §§ 708.2A(1), (2)(b) (2016). On appeal, Igou contends the district

court should have excluded the girlfriend’s testimony as a sanction for the

prosecutor’s violation of a discovery rule.

I.     Background Proceedings

       Iowa Rule of Criminal Procedure 2.14(1) states:

       When a witness subpoenaed by the prosecuting attorney pursuant
       to rule 2.5 is summoned by the prosecuting attorney after complaint,
       indictment or information, the defendant shall have a right to be
       present and have the opportunity to cross-examine any witnesses
       whose appearance before the county attorney is required by this rule.

After the trial information was filed, the prosecutor issued Igou’s girlfriend a pretrial

subpoena without notifying Igou or his attorney. The prosecutor conducted an

unrecorded interview of the girlfriend.

       At trial, Igou’s girlfriend testified for the State. During cross-examination,

the defense learned of the pretrial subpoena. Igou moved for judgment of acquittal

based in part on the prosecutor’s failure to notify him of the subpoena. The district

court reserved ruling on the motion but invited either party to “make further record

about this subpoena and what the consequences of it should be.” Following the

jury’s finding of guilt, the court denied the acquittal motion without revisiting the

subpoena issue.

       Igou moved for a new trial based on the claimed rule violation. The district

court denied the motion after concluding the prosecutor violated rule 2.14(1) but

Igou was not prejudiced by the violation. This appeal followed.
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II.      Error Preservation

         Preliminarily, the State raises an error preservation concern. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (stating error is preserved when an

issue is raised and decided). The State argues the proper means to challenge the

rule violation was by seeking discovery sanctions, as authorized by rule 2.14(6),

and Igou failed to do so. See Iowa R. Crim. P. 2.14(6)(c) (“Where a discovery

violation has been shown by timely application, “the court may . . . order such party

to permit the discovery or inspection, grant a continuance, or prohibit the party from

introducing any evidence not disclosed, or it may enter such other order as it

deems just under the circumstances.”). We are not persuaded by this argument

         Igou’s attorney only learned of the pretrial subpoena at trial. He immediately

cross-examined the girlfriend and established neither he nor his client were

present at the interview. At the close of the State’s case, he moved for judgment

of acquittal based on the claimed rule violation. He renewed the motion at the

close of trial and filed his new trial motion after trial. We conclude he preserved

error.

III.     Rule 2.14(1) Violation

         We review the court’s ruling on the new trial motion for an abuse of

discretion. See State v. Thompkins, 318 N.W.2d 194, 197-98 (Iowa 1982) (setting

forth the standard of review). “An abuse of discretion will not generally be found

unless the party whose rights have been violated suffered prejudice.” State v.

Babers, 514 N.W.2d 79, 82 (Iowa 1994) (citing Thompkins, 318 N.W.2d at 198).

Igou did not establish prejudice.
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       The prosecutor stated she was unaware of the notification requirement in

rule 2.14(1), and Igou’s attorney conceded the rule violation was unintentional. Cf.

Thompkins, 318 N.W.2d at 197 (finding “a deliberate and inexcusable violation of”

an order).

       Additionally, Igou’s attorney spoke to the girlfriend before trial and learned

of her meeting with the prosecutor. Although he was not aware the meeting was

convened pursuant to a subpoena, he had no incentive to seek a discovery

sanction because the girlfriend’s trial testimony helped rather than hurt his client.

       From his pretrial meeting with the girlfriend, he was aware of the girlfriend’s

exculpatory as well as inculpatory versions of events. See Fry v. Blauvelt, 818

N.W.2d 123, 130-31 (Iowa 2012) (noting party “clearly was able to investigate and

refute” evidence notwithstanding a delay in including certain exhibits in an initial

exhibit list); cf. Thompkins, 318 N.W.2d at 198 (noting defense counsel only

learned of a varying witness account after trial). The inculpatory version entered

the trial record through the recording of the girlfriend’s 911 call to a dispatcher and

her statements to police. In that version, she said Igou pushed her into a door

knob and into a kitchen wall. The exculpatory version entered the record through

the girlfriend’s trial testimony. The defense had filed a pretrial affidavit in which the

girlfriend attested, “I don’t think [Igou] tried to push me into the doorknob at all” and

he “did not throw me against any walls in the kitchen.” On cross-examination of

the girlfriend at trial, the defense honed in on those recantations. The affidavit was

offered and admitted, and the girlfriend reaffirmed the recantations and disavowed

her statements to the 911 dispatcher and police. In sum, where the inculpatory

version of events was before the jury through the 911 recording and the police
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officer’s testimony, the girlfriend’s trial recantation was crucial to the defense, and

Igou was hard-pressed to argue he was prejudiced by it.

       We conclude the district court did not abuse its discretion in denying Igou’s

new trial motion. We affirm his conviction.

       AFFIRMED.
