                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0895
                            Filed November 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA JAMES ROYER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



      A defendant appeals his conviction for first-degree murder, challenging the

court’s denial of his motion to strike two jurors for cause and the court’s

admission of prior-bad-acts evidence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Joshua Royer appeals his conviction for first-degree murder, in violation of

Iowa Code sections 707.1 and 707.2 (2013).          He asserts the court erred in

denying his motion to strike for cause two jurors who were aware of his criminal

history, forcing him to use peremptory strikes to remove the jurors in question.

He also claims the court erred in allowing into evidence testimony and video

concerning his prior interaction with police. For the reasons stated herein, we

affirm Royer’s conviction.

I. Jury Selection.

       During jury selection, several members of the venire admitted knowledge

of Royer and his criminal record from news articles they had read about the

crime. Royer’s counsel challenged those individuals for cause, asserting their

knowledge of his record, and the inherent prejudice that knowledge brings,

prevented them from being impartial. The court granted all but two of those

challenges.   Royer then used his peremptory challenges to strike these two

remaining individuals from the jury. He appeals contending the court abused its

discretion in not striking for cause these two potential jurors. He also asserts this

court should find he was presumptively prejudiced by the need to use two of his

peremptory challenges to remove these jurors. Such a conclusion would be in

contravention to the supreme court’s holding in State v. Neuendorf, 509 N.W.2d

743, 747 (Iowa 1993) (“We hold that partiality of a juror may not be made the

basis for reversal in instances in which that juror has been removed through

exercise of a peremptory challenge. . . . Prejudice will no longer be presumed
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from the fact that the defendant has been forced to waste a peremptory

challenge.”).

       We review a court’s failure to grant a party’s motion to strike a juror for

cause for an abuse of discretion. State v. Tillman, 514 N.W.2d 105, 107 (Iowa

1994). A juror can be challenged for cause based on the juror “[h]aving formed

or expressed such an opinion as to the guilt or innocence of the defendant as

would prevent the juror from rendering a true verdict upon the evidence

submitted on the trial.” Iowa R. Crim. P. 2.18(5)(k). The district court has broad

discretion in applying this test to a party’s challenge for cause. State v. Mitchell,

573 N.W.2d 239, 240 (Iowa 1997). While prejudice in failing to grant a challenge

for cause was previously presumed, our supreme court in Neuendorf determined

there must be “some factual showing that this circumstance resulted in a juror

being seated who was not impartial.” 509 N.W.2d at 746. Without proof that the

jury that rendered the verdict was not impartial, the court found “it is too

speculative to justify overturning the verdict of the jury.” Id. Thus, the test that

must be applied requires the defendant to show “(1) an error in the court’s ruling

on the challenge for cause; and (2) either (a) the challenged juror served on the

jury, or (b) the remaining jury was biased as a result of the defendant’s use of all

of the peremptory challenges.” Tillman, 514 N.W.2d at 108.

       Having reviewed the testimony given by the two prospective jurors, we

doubt Royer’s claim that the court abused its discretion in refusing the grant his

motion to strike these jurors for cause. However, we need not reach that issue

because Royer fails to argue he suffered prejudice in accordance with

Neuendorf. He makes no argument that his use of his peremptory strikes to
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remove these two jurors resulted in a biased jury hearing the case. See id.

Instead, Royer only urges us to overrule Neuendorf and return to the prior rule

that presumed prejudice if the defendant had to use a peremptory strike to

remove the juror in question. See State v. Beckwith, 46 N.W.2d 20, 23 (Iowa

1951) (“[I]t is settled law that if a disqualified juror is left upon the jury in the face

of a proper challenge for cause, so that defendant must either use one of his

peremptory challenges or permit the juror to sit, and if defendant does use all of

his peremptory challenges, prejudice will be presumed. Defendant should not be

compelled to use his peremptory challenges upon prospective jurors who should

have been excused for cause.” (citation omitted)), overruled by Neuendorf, 509

N.W.2d at 746.       “We are not at liberty to overturn Iowa Supreme Court

precedent.”    State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).

Because Royer failed to prove he was prejudiced by the district court’s refusal to

grant his motion to strike two jurors for cause, instead only urging us to presume

prejudice in contravention to the holding of Neuendorf, which we cannot do, we

deny this claim on appeal.

II. Admission of Evidence.

       Next, Royer seeks a new trial due to the district court’s admission of

testimony from a police officer and a dash-cam video showing Royer being pulled

over weeks before the crime at issue in this case. Royer asserts the evidence in

question had limited probative value, was cumulative to other evidence, and was

highly prejudicial because it implied Royer was previously engaged in criminal

activity. We review the district court’s decision to admit evidence for an abuse of

discretion. See State v. Henderson, 696 N.W.2d 5, 10 (Iowa 2005).
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      “Evidence is relevant if 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.’” State v. Putman, 848

N.W.2d 1, 9 (Iowa 2014) (quoting Iowa R. Evid. 5.401). Evidence that is relevant

is admissible so long as the danger of unfair prejudice does not substantially

outweigh the evidence’s probative value. Iowa R. Evid. 5.403.

      At issue in this case was the identity of the driver of a green Honda car

with a loud muffler and a spare tire on the rear driver’s side. The car was seen

stopped next to the victim, who w as riding a bicycle and appeared to be talking

to the occupant of the car, before shots rang out and the car sped away. The

officer’s testimony and dash-cam video showed that several weeks earlier Royer

was driving a green Honda with a loud muffler and a spare tire located on the

rear driver’s side of the vehicle.    Other crimes, wrongs, and acts may be

admissible so long as the evidence is offered for a purpose other than to prove

the character of a person to show the person acted in conformity with that

character. See Iowa R. Evid. 5.404(b). The other purposes include “proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Id. The identity of the shooter was clearly at issue in this

case, and therefore, the officer’s testimony and the dash-cam video were

relevant evidence.

      Next, we must address whether the relevant evidence should not have

been admitted because the evidence’s “probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or
                                          6


needless presentation of cumulative evidence.” Iowa R. Evid. 5.403. The officer

testified he pulled over a the green Honda because he “observed a traffic

violation.” He identified Royer as the driver and asked Royer to step out of the

car. The dash-cam video confirmed this testimony, though no audio was played

for the jury.

       The fact Royer was pulled over by police weeks before the shooting for a

“traffic violation” is not the type of evidence that is normally considered unfairly

prejudicial because it does not have a likelihood of inducing the jury to make a

decision on Royer’s guilt on an improper basis, such as an emotional reaction to

punish the defendant.     See State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa

2001) (“Unfairly prejudicial evidence is evidence that ‘appeals to the jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or

triggers other mainsprings of human action [that] may cause a jury to base its

decision on something other than the established propositions in the case.’”

(alteration in original) (citation omitted)). Nor is the prior-acts evidence similar to

the charged crime so that the jury would infer the defendant committed the

current act because he committed the act on a previous occasion.                  See

Henderson, 696 N.W.2d at 13 (finding the admission of the defendant’s prior

drug conviction unfairly prejudiced the defendant where he was on trial for a drug

offense because the jury would have a hard time not allowing the information to

consciously or subconsciously influence their decision).

       While there was other evidence admitted at Royer’s trial that also

connected him to the vehicle, we conclude the officer’s testimony was not unduly

cumulative in this case.      The other evidence included testimony from two
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teenagers, who identified Royer as the person they spoke with who was driving

the green Honda with a loud muffler and spare tire on the rear driver’s side

moments before the teenagers heard gun shots, and the testimony of Royer’s

acquaintances, who testified he drove the car in question. In light of the fact the

officer testified he pulled Royer’s vehicle over for a “traffic violation” and the

evidence was not needlessly cumulative, we conclude the court did not abuse its

discretion in admitting the testimony of the officer and the dash-cam video.

      We affirm Royer’s conviction.

      AFFIRMED.
