                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2155
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL C. HOUSTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      Michael Houston appeals his convictions of second-degree robbery as a

habitual offender and interference with official acts. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Michael Houston appeals his convictions of second-degree robbery as a

habitual offender and interference with official acts.      He contends (1) the

evidence presented was insufficient to support one of the alternative theories of

the second-degree robbery charge; (2) the district court erred in permitting the

State to elicit irrelevant and prejudicial testimony regarding his income and

employment and in allowing the State to use his financial affidavit to impeach

him; (3) the district court erred in permitting the State to question him about the

contents of letters he sent to witnesses, insinuating his wrongdoing in connection

therewith; and (4) the prosecutor’s alleged argumentative remarks, disparaging

examination of him at trial, and statements in closing argument amounted to

prosecutorial error resulting in a denial of his right to a fair trial. Houston also

argues his counsel rendered ineffective assistance in failing to properly object to

the evidence, questioning, and remarks falling under arguments two through four.

I.     Background Facts and Proceedings

       Based upon the evidence presented, a reasonable jury could have found

the following facts. On July 3, 2016, at approximately 11:30 p.m., Merle Wilson

was in his vehicle in the dark parking lot of a closed restaurant. He was waiting

to pick up his granddaughter, who was working the closing shift at the restaurant.

Wilson played games on his phone while waiting. Wilson heard a tap on his

window and turned to observe what appeared to be a sawed-off shotgun pointing

at his head. The wielder, Houston, ordered Wilson out of the car, and Wilson

complied. Houston continued to point the gun-like object at Wilson and ordered,

“Give me your fucking phone.” Wilson declined, upon which Houston jabbed
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Wilson in the stomach with the object and advised, “You’re going to get it.” After

a few jabs, Wilson attempted to grab the object1 from Houston, and a tussle

ensued. Seconds later, Houston struck Wilson on the back of the head with a

flashlight, and Wilson fell to the ground. When Wilson attempted to get up,

Houston struck him with the flashlight a second time. At this point, a restaurant

employee, who was sitting in a separate vehicle located next to Wilson’s,

intervened, and Houston left the scene. Wilson called the police.

       Officer Ryan Neumann of the Des Moines Police Department received a

description of the suspect and canvassed the area. He located Houston, who

matched the description, in an alley. Neumann identified himself as a police

officer and advised Houston to put his hands on a nearby fence. Houston moved

toward Neumann with a metal object in his hand and advised, “You’re going to

have to shoot me.” Due to Houston’s subsequent movements, Neumann pepper

sprayed Houston, after which Houston attempted to flee. Another officer joined

Neumann in his chase of Houston and threatened Houston with the use of his

taser, upon which Houston stopped, and the officers “went hands-on with” and

secured him. Among other items found in the area and on Houston’s person, the

officers found an object resembling a sawed-off shotgun. Houston testified this

object belonged to him, and he discarded it in the area upon his initial encounter

with law enforcement.

       Houston was charged by trial information with first-degree robbery and

interference with official acts with a dangerous weapon.          The district court


1
 When Wilson touched the object he initially thought was a shotgun, he realized it was
not a real firearm.
                                        4


granted the State’s subsequent motion to amend the trial information to include a

habitual-offender enhancement.     A jury found Houston guilty of the lesser-

included offenses of second-degree robbery and interference with official acts

without a dangerous weapon. Houston subsequently stipulated to his status as a

habitual offender. The district court denied Houston’s motion for a new trial and

motion in arrest of judgment.    Houston appealed following the imposition of

sentence.

II.   Sufficiency of the Evidence

      Houston argues he is entitled to a new trial because the jury returned a

general verdict on a marshalling instruction that allowed the jury to consider

multiple theories of culpability, one of which was unsupported by substantial

evidence. He specifically contends the evidence was insufficient to establish that

he inflicted a serious injury, and because there is no way of knowing which

theory of culpability the jury accepted, he should be afforded a new trial.   The

State contests error preservation on this issue, arguing Houston did not object to

the jury instruction with “concrete particularity.” We elect to bypass the State’s

error-preservation argument and proceed to the merits.        See, e.g., State v.

Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing an error-preservation issue

and proceeding to the merits of the appeal).

      The jury was instructed that “[a] serious injury is any bodily injury which

creates a substantial risk of death or which causes serious permanent

disfigurement.” Cf. Iowa Code § 702.18(1)(b) (2016). The term “bodily injury”

was defined as any “physical pain, illness or any impairment of physical

condition.” See State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997) (quoting State v.
                                             5

McKee, 312 N.W.2d 907, 913 (Iowa 1981)) (noting Iowa’s adoption of the Model

Penal Code’s definition of bodily injury).

       According to Wilson’s testimony, he sustained two cuts on the back of his

head. He testified at trial he continues to have a three-inch-long, “permanent

crease” on the back of his head where he was wounded. Wilson’s wife testified

she has cut her husband’s hair for approximately ten years and, as a result of

Wilson’s altercation with Houston, Wilson now has “a dent in the back of his

head.” Houston characterizes Wilson’s injury as a mere scar and argues not all

scars amount to a serious permanent disfigurement. We agree with Houston that

scarring is not a “per se serious permanent disfigurement.” See State v. Hanes,

790 N.W.2d 545, 554 (Iowa 2010). The appropriate practice, however, is to

“leave it to the jury to determine whether a scar constitutes a serious permanent

disfigurement.” Id. We conclude there was sufficient evidence upon which the

jury could have found Houston caused Wilson to suffer a serious injury.

Therefore, we affirm the district court’s denial of Houston’s motions for judgment

of acquittal.

III.   Evidentiary Rulings

       A.       Houston’s Employment and Financial Affidavit

       During the State’s cross-examination of Houston, it inquired into whether

Houston was employed; Houston responded in the negative. The State returned

to the subject later in its cross-examination and questioned Houston if his lack of

employment means he does not make any money. Defense counsel objected to

the question on relevance grounds. The objection was overruled. The State

then presented Houston with a copy of his financial affidavit, which Houston
                                           6


verified he signed under penalty of perjury.          The State then proceeded to

question Houston about his assertion on his financial affidavit that he does, in

fact, have a job and works ten to fifteen hours per week. On redirect, Houston

explained someone else filled out the document for him before he signed it, and

he explained to that person that he does not have a job but he does tattoo work

“sometimes here, sometimes there.” In his explanation, Houston also implicitly

revealed he was being represented at State expense when he indicated the

person who filled out the affidavit for him might have been with the public

defender’s office. In closing argument, the State returned to the subject and

emphasized Houston’s misstatement on his financial affidavit reflected negatively

on his credibility.

       B.      Letters to Witnesses

       On cross-examination, the State questioned Houston regarding letters he

sent to two witnesses prior to trial. Houston’s counsel objected to questioning

regarding the letters on relevance grounds but, again, the objection was

overruled. Upon questioning by the State, Houston stated he sent letters to two

witnesses and advised them that he had inadvertently been provided with their

addresses and social security numbers.           On redirect examination, Houston

explained he merely wanted to let these individuals know that he had accidently

been provided with their personal information. The State returned to the subject

on re-cross-examination and, through questioning, insinuated Houston engaged

in wrongdoing by sending the letters rather than returning the information he

received to his attorney.      In closing argument, the State argued Houston’s

conduct in relation to the letters reflected poorly on his credibility:
                                          7


               Not only that, credibility, believability. Remember the letter.
       He got possession of Social Security numbers by accident,
       inadvertently, from his lawyer who’s defending him. And then he
       takes that and what does he do?
               He writes to the State witnesses who are going to come
       testify against him. And you know what he tells them? He says it’s
       the courts that provided it to him.              Seriously. Credibility,
       believability. Because that’s his version; right?

Implicit in the State’s efforts on this subject was that Houston was attempting to

intimidate witnesses by advising them he possessed sensitive personal

information.

       C.      Discussion

       Houston contends the foregoing was irrelevant and prejudicial. As to the

evidence regarding his employment and financial affidavit, he specifically argues

the elicited testimony was irrelevant to any material issue in the case and the

questioning prejudiced him by intending to improperly portray him as a dishonest

person.     As to the questioning regarding the letters, Houston contends the

State’s questioning and argument improperly and prejudicially insinuated that he

engaged in wrongdoing that was immaterial to the charged crime.

       “Evidentiary rulings are generally reviewed for abuse of discretion.” State

v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017). “An abuse of discretion occurs

when the trial court exercises its discretion ‘on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’”              Id. (quoting State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003)).             “If we find an abuse of

discretion, we will only reverse if prejudice is shown.” Id.

       We agree with Houston that the subject matter of the cross-examination

regarding his employment and income was irrelevant to any material issue in the
                                            8

case, as it was wholly unrelated to the charged crime. See Iowa R. Evid. 5.401.

Compare State v. Roghair, 353 N.W.2d 433, 434–35 (Iowa Ct. App. 1984)

(concluding questioning of the defendant regarding his financial status as shown

on his affidavit of indigency in a case involving the theft of a rifle “was irrelevant

and immaterial to any matters in issue” where the defendant’s financial status

was generally unrelated to the charged crime), with State v. Wixom, 599 N.W.2d

481, 487 (Iowa Ct. App. 1999) (concluding evidence of indigency was relevant to

cast doubt on defendant’s assertion that he was not a drug dealer, which related

to the charged offense), and State v. Kane, 492 N.W.2d 209, 210–11 (Iowa Ct.

App. 1992) (distinguishing Roghair on the basis that “the relationship between

Roghair’s financial condition and his motives were far more attenuated than the

evidence of Kane’s financial need,” which was “close-coupled” with Kane’s

possession of a substantial sum of currency shortly after a burglary).           See

generally State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976) (“It is well settled . . .

the right to impeach by prior inconsistent statements is not without limit. The

subject of the inconsistent statement, if it is to be admissible, must be material

and not collateral to the facts of the case.”).

       We also agree that the questioning regarding Houston’s letters to State

witnesses was wholly irrelevant to the case. See Iowa R. Evid. 5.401 (defining

relevant evidence as “evidence having 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” (emphasis added)).

Because the challenged evidence and testimony was irrelevant, we conclude the

district court abused its discretion in allowing it.
                                          9

       However, not all evidentiary errors require reversal.           See Iowa R.

Evid. 5.103(a); State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004).           The real

question in this case is whether the admission of this evidence resulted in

prejudice to Houston. “[E]rror in an evidentiary ruling that is harmless may not be

a basis for relief on appeal.” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008).

Under the harmless-error standard, when an abuse of discretion is found, we

presume prejudice unless the contrary is affirmatively established. Id. “When a

nonconstitutional error is claimed, as in this case, the test is whether the rights of

the objecting party have been ‘injuriously affected by the error’ or whether the

party has ‘suffered a miscarriage of justice.’” Id. (quoting Sullivan, 679 N.W.2d at

29).   The harmless-error analysis is broader than the prejudice assessment

under rule 5.403. See Sullivan, 679 N.W.2d at 30. “It accepts that error has

seeped into the trial, but does not allow the error to serve as grounds for reversal

of the conviction or other relief if the overall circumstances affirmatively establish

the error did not affect the substantive rights of the defendant.” Parker, 747

N.W.2d at 209.

       A variety of circumstances are considered in determining the existence of

harmless error, one being “the existence of overwhelming evidence of guilt.” Id.

at 210.   In this case, the convictions were clearly based on overwhelming

evidence of Houston’s guilt. We recognize that the jury’s verdict necessarily

turned upon its credibility determinations. Houston recognizes this as well and,

accordingly, seems to argue that the improper evidence played a major role in

the jury’s obvious rejection of his version of the events that occurred on the night

in question.   But, in light of the evidence presented, Houston’s version of the
                                         10


events was illogical at best and, therefore, not credible. Houston testified he

approached Wilson’s vehicle on the night in question to get “a light” for a

cigarette. After knocking on Wilson’s car window, according to Houston, “things

happened extremely quickly,” as Wilson exited his vehicle and “just grabbed at”

and assaulted Houston.      Houston denied ordering Wilson out of his vehicle,

demanding his cell phone, or brandishing the wooden, gun-like object. Houston’s

actions during the ensuing tussle were purportedly made in self-defense.

However, Houston admitted he had the wooden, gun-like object in his

possession and that he discarded it upon his encounter with law enforcement

because he “was worried.”         Houston was unable to provide a concrete

explanation as to how Wilson was aware of the item. No cigarettes were found

on Houston’s person or among his belongings. Houston’s self-serving account of

his subsequent contact with law enforcement was also unconvincing.

       Based on the existence of overwhelming evidence of guilt, we conclude

the record affirmatively establishes that Houston’s rights were not injuriously

affected by the evidentiary errors and that he did not suffer a miscarriage of

justice. We therefore decline to grant Houston’s request for a new trial on these

evidentiary issues. As to Houston’s vague claims of ineffective assistance of

counsel in relation to these evidentiary arguments, for the foregoing reasons, we

conclude there is no reasonable probability that, but for the admission of the

challenged evidence, the result of the proceeding would have been different.

See Strickland v. Washington, 466 U.S. 668, 694 (1984). As such, Houston is

unable to establish the essential element of prejudice, and his claims of

ineffective assistance of counsel fail. See id. at 687, 694.
                                            11


IV.    Prosecutorial Error2

       Finally, Houston contends the prosecutor’s alleged argumentative

remarks, disparaging examination of him at trial, and statements in closing

argument amounted to prosecutorial error resulting in a denial of his right to a fair

trial. Although defense counsel raised a number of relevance and argumentative

objections regarding the challenged conduct of the prosecutor, a number of the

challenged statements were not objected to and the prosecutorial-error argument

was never raised at trial, nor was a motion for a mistrial ever forwarded. Error

was therefore not preserved for our review. See State v. Krogmann, 804 N.W.2d

518, 526 (Iowa 2011); State v. Dahlstrom, 224 N.W.2d 443, 449 (Iowa 1974).

Houston, however, also raises the argument as an ineffective-assistance-of-

counsel claim, claims of which are an exception to the traditional error-

preservation rules. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).

       To prevail on his claim of ineffective assistance of counsel, Houston must

prove by a preponderance of the evidence that (1) his counsel was deficient in

failing to perform an essential duty and (2) prejudice resulted. Strickland, 466

U.S. at 687; State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017) (quoting State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006)).




2
  Claims relating to a prosecutor’s behavior at trial have historically been referred to as
prosecutorial misconduct. However, our supreme court has adopted a distinction
“between incidences of prosecutorial error and prosecutorial misconduct” and noted “[a]
prosecutor who has committed error should not be described as committing
misconduct.” State v. Schlitter, 881 N.W.2d 380, 393–94 (Iowa 2016). “While the
analysis for prosecutorial error and prosecutorial misconduct are the same, the phrase
prosecutorial error should be used to describe instances of mistake, human error, or
poor judgment.” State v. Royer, No. 16-1206, 2017 WL 4570431, at *2 n.1 (Iowa Ct.
App. Oct. 11, 2017).
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      A number of the prosecutor’s remarks that Houston now challenges were

made absent objection. Absent an objection to those statements, the statements

could not have been considered in relation to any motion for a mistrial. See

State v. Gibb, 303 N.W.2d 673, 678 (Iowa 1981) (“[A] mistrial motion must be

made when the grounds therefor first become apparent.”); cf. State v. Romeo,

542 N.W.2d 543, 554 (Iowa 1996) (noting “defendant must make a timely and

proper objection to the offending argument” and “a motion for new trial is not a

substitute for objecting at the time of the offending conduct”).         Claims of

ineffective assistance of counsel raised on direct appeal are ordinarily preserved

for postconviction-relief proceedings to allow full development of the facts

surrounding counsel’s conduct. See State v. McNeal, 867 N.W.2d 91, 105–06

(Iowa 2015). Here, trial counsel should be permitted the opportunity to explain

the failure to object to the prosecutor’s statements. There are potential strategic

considerations in not lodging an objection, such as a desire to avoid drawing the

jury’s attention to a particular remark or line of questioning. We preserve this

claim for postconviction-relief proceedings.

V.    Conclusion

      We affirm      Houston’s   convictions   of   second-degree    robbery and

interference with official acts. We preserve for postconviction-relief proceedings

Houston’s ineffective-assistance-of-counsel claim relating to prosecutorial error.

      AFFIRMED.
