                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0487
                              Filed October 1, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD OSMOND MCLACHLAN JR.,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



       A defendant appeals his convictions for possession of a controlled

substance with intent to deliver and failure to affix a drug tax stamp. AFFIRMED

IN PART, REVERSED IN PART, AND REMANDED.



       Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, Joe Crisp, Assistant County

Attorney, for appellee.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                          2



TABOR, J.

          Richard McLachlan appeals his convictions for possession of marijuana

with intent to deliver and failure to affix a drug tax stamp. He argues the State

improperly amended the trial information to add the tax stamp charge and did not

offer substantial evidence of possession. McLachlan also contends the district

court denied him a fair trial by not giving his requested jury instruction on

constructive possession, by excluding a third party’s statement as hearsay, by

admitting a laboratory report without allowing him to confront its author, and by

finding his prior felony offenses were admissible.

          On the first claim, we find the State charged a wholly new and different

offense by adding the tax stamp count to the trial information on the morning of

trial. Because the district court should not have allowed the amendment, we

reverse the tax stamp conviction and remand for entry of an amended sentencing

order.1      On the second claim, because the record contains sufficient

circumstantial evidence to show McLachlan actually possessed the marijuana

found at the scene before he fled, we do not disturb the jury’s verdict on that

offense. For similar reasons, we find the court’s refusal to give an additional

instruction on constructive possession did not constitute reversible error. We

also conclude McLachlan was not prejudiced by the hearsay ruling. Finally, we

conclude McLachlan did not preserve error his challenges involving confrontation

of the lab technician and impeachment by his prior offenses.



1
  Because we decide the amendment was not permitted, we need not address
McLachlan’s alternative claim that he should have been separately arraigned on the tax
stamp charge.
                                           3



I.     Trial Court Proceedings

       We start with a brief rendition of the trial proceedings as they are relevant

to McLachlan’s objection to the State’s amendment of the trial information and to

his claims of evidentiary error by the district court.

       On August 24, 2012, the State filed a trial information charging McLachlan

with possession of a controlled substance with intent to deliver, a class “D”

felony, in violation of Iowa Code section 124.401(1)(d) (2011). The information

alleged he possessed marijuana when confronted by a Des Moines police officer

on August 1, 2012. He was arraigned on that charge on August 29. The parties

gathered for a pretrial conference on September 27, and indicated plea

negotiations were ongoing. The State offered to refrain from filing additional

charges in return for McLachlan’s plea to possession with intent to deliver and his

agreement to a prison sentence consecutive to his probation violation.

McLachlan turned down the offer.

       On October 11, 2012, the State filed notice of an additional witness—state

criminalist Amanda Kilgore—who was prepared to testify regarding her testing of

the exhibits submitted by the Des Moines police. Attached to the witness notice

was her lab report, dated August 31, 2012; the results of her examination

showed several baggies of plant material tested positive for marijuana with a total

net weight of more than seventy-nine grams.

       The defense filed a motion in limine on November 30, 2012, seeking to

exclude evidence of McLachlan’s prior convictions for possession with intent and

domestic abuse assault. The motion also stated the defense would “object and
                                           4



move for mistrial if the State attempts to admit any of the following evidence” and

then listed two dozen examples of inadmissible references. The State did not

resist the second aspect of the defense motion in limine.

       On January 28, 2013, the morning of trial, the State moved to amend the

trial information to add a charge of failure to affix a drug tax stamp, a class “D”

felony in violation of Iowa Code sections 453B.3 and 453B.12. The State also

sought to enhance the first count based on McLachlan’s prior drug conviction.

McLachlan resisted adding the drug tax stamp offense. The district court granted

the State’s request to amend the trial information. Following trial, a jury entered

guilty verdicts against McLachlan on both counts.

       On March 25, 2013, the district court sentenced McLachlan to a prison

term not to exceed ten years on the enhanced possession with intent conviction

and a term not to exceed five years on the tax stamp charge. The court ordered

these sentences to be served concurrently to each other but consecutively to a

prior conviction.2

II.    Amendment of Trial Information

       McLachlan contends the district court erred in allowing the State to amend

the trial information on the morning of trial to include a drug tax stamp violation.

Such amendments are governed by Iowa Rule of Criminal Procedure 2.4(8):

       The court may, on motion of the state, either before or during the
       trial, order the indictment[3] amended so as to correct errors or


2
  After the verdict, McLachlan stipulated he had a prior conviction for possession of a
controlled substance with intent to deliver and stipulated that conviction supported a
sentencing enhancement.
3
  The term “indictment” encompasses the trial information. Iowa R. Crim. P. 2.5(5); State
v. Brothern, 832 N.W.2d 187,192 (Iowa 2013).
                                           5



       omissions in matters of form or substance. Amendment is not
       allowed if substantial rights of the defendant are prejudiced by the
       amendment, or if a wholly new and different offense is charged.

       This rule establishes a two-part test. State v. Maghee, 573 N.W.2d 1, 4

(Iowa 1997). An amendment to correct errors or omissions is permitted so long

as (1) it does not prejudice the accused’s substantial rights and (2) it does not

charge a wholly new and different offense. Id.

       McLachlan does not argue the amendment prejudiced his substantial

rights. Instead, he argues the amendment charged “a wholly new and different

offense”—in addition to the original charge of marijuana possession with intent to

deliver. We review the question whether an amendment to a trial information

charges a “wholly new or different offense” for errors at law. Id. at 5 (holding

amendment of drug possession offense from class “C” to class “B” felony did not

charge “wholly new or different offense”).

       At trial, the prosecutor cited Maghee for the proposition that the State may

amend the trial information to allege “a larger quantity of drugs.” The prosecutor

explained it was typical procedure for his office to “bump things up” after

receiving the lab report indicating the weight of the drugs,4 if the defendant had

not accepted a plea offer. The prosecutor acknowledged the tax stamp violation

was “a new offense” and a “separate offense” with “separate elements”—but



4
  A violation of section 453B.12 requires proof that a dealer possessed a taxable
substance without affixing a tax stamp. A dealer is defined as a person who possesses
forty-two and one-half grams of processed marijuana. Iowa Code § 453B.1(3)(a)(2). In
this case, the State had sufficient information to charge the tax stamp violation when it
received the lab report on August 31, 2012—thirty days after the offense date and one
week after filing the trial information. The State did not move to amend the trial
information until January 28, 2013—five months later.
                                         6



argued that it stemmed from “the same operative facts.” The prosecutor further

stated: “We have never arrested Mr. McLachlan for the tax stamp. If [defense

counsel] would like, in terms of procedure, we could arrest Mr. McLachlan today

for the tax stamp and he can have a separate trial on a tax stamp.”

       Defense counsel responded he was aware the State was “reserving the

right to file additional charges” but maintained the tax stamp was an entirely new

charge and an amendment adding a second count to the trial information violated

rule 2.4(8). The district court allowed the amendment.

       On appeal, the State recognizes the tax stamp statute is not located in the

chapter governing controlled substances, but argues the offenses “are nearly

always charged together” and are “the same in substance.”             See State v.

Abrahamson, 746 N.W.2d 270, 275 (Iowa 2008) (equating the analysis of a

“wholly new or different” offense for purposes of amending a trial information with

the “same offense” test for speedy trial purposes). The State also points us to

State v. Gallup, 500 N.W.2d 437, 442 (Iowa 1993), which held possession with

intent to deliver is a lesser included offense of a drug tax stamp charge.

       The State’s argument on appeal might have more strength if the

amendment had substituted the tax stamp violation for the possession with intent

charge. See, e.g., State v. Brisco, 816 N.W.2d 415, 421 (Iowa Ct. App. 2012)

(concluding proposed amendment to trial information changing offense from

delivery of crack cocaine to delivery of marijuana did not charge a wholly new or

different offense). Or if the added offense was actually an alternative means of

committing drug trafficking. See, e.g., State v. Williams, 305 N.W.2d 428, 431
                                        7



(Iowa 1981) (permitting amendment to add conspiracy charge). But in this case

the amendment added a second count to the trial information—expanding

McLachlan’s criminal liability by charging a separate offense, with separate

elements, as the prosecutor acknowledged at trial.

      We agree with the State that Gallup is instructive, but for a different

reason. Gallup holds the legislature intended to allow cumulative punishment for

drug tax stamp violations and offenses under the uniform controlled substances

act. Gallup, 500 N.W.2d at 445. The supreme court explained that when a

prosecutor charges an offense under chapter 124 (then chapter 204) and an

offense under chapter 453B (then chapter 421A), “the district court should not

submit the former to the jury as a lesser included offense of the latter. Rather,

district courts should submit these offenses separately.” Id. In the event the jury

returns a verdict on both offenses, they do not merge. Id. The Gallup analysis

suggests the two offenses should be treated differently from one another.

      On appeal, the State argues that not allowing the amendment would be

bad public policy because it would encourage piecemeal prosecutions.           Any

piecework in this case was a purposeful strategy of the prosecution. The trial

prosecutor kept the tax stamp charge in his pocket for five months as a

negotiation tool and then argued on the morning of trial that the speedy

indictment clock had not started on the tax stamp violation because McLachlan

was not arrested for that charge. It is true that Iowa Rule of Criminal Procedure

2.6(1) permits, but does not require, multiple charges growing out of a single

occurrence to be charged together. See State v. Eichorn, 325 N.W.2d 95, 96
                                         8



(Iowa 1982). But if the possession with intent charge and tax stamp violations

are the “same offense”—as the State argues on appeal—the speedy indictment

clock would have started to run on August 1, 2012, for both offenses.

       We are not called to decide whether the State could have filed a new trial

information charging the drug tax stamp violation on January 28, 2013. The only

question before us is whether the tax stamp violation constituted a wholly new

and different offense for purposes of rule 2.4(8). We hold that it did. Therefore,

we vacate McLachlan’s tax stamp conviction and remand for the entry of a

sentencing order consistent with this opinion.

III.   Substantial Evidence of Marijuana Possession

       McLachlan next claims the State did not offer sufficient evidence he

possessed a controlled substance with intent to deliver.          Our review of this

sufficiency claim is for the correction of errors at law. See State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012). We view the evidence in the light most favorable

to the verdict and accept all reasonable inferences that may be fairly drawn from

the evidence. See State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014).

       In its case in chief, the State presented evidence of the following facts. In

the early morning hours of August 1, 2012, Des Moines police officer Jacob

Hedlund responded to a call of gunshots fired near Good Park. The officer saw a

group of five or six people walking through the closed park.          As the officer

approached the group, one man ran south—across Atkins Street and into a

backyard. Officer Hedlund left his car, drew his weapon, and ordered the rest of

the group to get on the ground on the north side of the street.
                                         9



        Fifteen to twenty seconds later, the officer saw the same man return from

the backyard. Officer Hedlund handcuffed that man, later identified as Richard

McLachlan, and placed him in the squad car. When back-up officers arrived to

watch the suspects, Officer Hedlund searched the backyard where McLachlan

had fled and found three fist-sized bags of what appeared to be marijuana under

some shrubbery. McLachlan was the only person the officer had seen in that

yard.

        The rest of the group stayed on the north side of the street. After finding

the bags, Officer Hedlund asked those individuals, most of whom appeared to be

juveniles, if the marijuana belonged to them. They all denied the marijuana was

theirs.5 Another responding officer, Theodore Stroope, searched on the north

side of the street and found two small baggies of marijuana, empty plastic

baggies, and a car key.6

        To convict McLachlan, the State was required to prove he (1) possessed

marijuana, (2) knew the substance was marijuana, and (3) did so with the

specific intent to deliver it. See Iowa Code § 124.401(1)(b)(7). The fighting issue

on appeal is McLachlan’s possession of the marijuana.

        Possession means the exercise of dominion and control over a substance.

See State v. Kern, 831 N.W.2d 149, 160 (Iowa 2013). The State may show the




5
  Later, in response to an entreaty from McLachlan, a member of the group named
Kenneth Jones did claim ownership of the marijuana. We address Jones’s statement in
a subsequent issue.
6
  Investigators matched the key to a stolen Lexus parked around the corner from Good
Park.
                                       10



defendant had either actual or constructive possession to obtain a conviction.

Kern, 831 N.W.2d at 160–61.

      Actual possession requires finding contraband on the defendant’s person

or substantial evidence allowing a conclusion the defendant had the contraband

on his person at one time. State v. Thomas, 847 N.W.2d 438, 444 (Iowa 2014).

The State can show actual possession by direct or circumstantial evidence.

State v. Vance, 790 N.W.2d 775, 784 (2010).

      Constructive possession allows a fact finder to infer the defendant’s

possession of the contraband from its location or other circumstances. Thomas,

847 N.W.2d at 443. When the police find drugs on a premises not under the

exclusive possession of the accused, the State must offer additional evidence to

establish possession. Id. The nature of that additional proof can include the

following: incriminating statements or actions by the accused upon police

discovery of the drugs among or near his personal belongings, fingerprints on the

drug packaging, and any other circumstances linking the accused to the drugs.

See State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). These factors are not

exclusive. Id.

      As articulated by the four-justice majority in Thomas, “the distinction

between actual possession and constructive possession does not turn on

whether a defendant was apprehended with the contraband, but on whether

there is sufficient evidence that contraband was in his or her physical possession

at some point in time.” 847 N.W.2d at 442-43 (citing Vance, 790 N.W.2d at 784);

see United States v. Cantrell, 530 F.3d 684, 693 (8th Cir. 2008) (“A person who
                                            11



knowingly has direct physical control over a thing, at a given time, is then in

actual possession of it.”). The three dissenting justices in Thomas cautioned:

“Regardless whether the actual possession or constructive possession

formulation is advanced . . . our purpose in setting forth these formulations and

evidentiary factors for consideration has always been to ensure the State can

establish, by something more than speculation, that the accused has actually

exercised possession of the substance recovered beyond a reasonable doubt.”7

Thomas, 847 N.W.2d at 449-450 (Hecht, J., dissenting).

       Under the formulation of both the majority and the dissent in Thomas, the

evidence in this case supports McLachlan’s possession of the marijuana. 8

McLachlan ran when Officer Hedlund approached in his squad car. McLachlan

was the only member of the group seen in the closed park who crossed to the

south side of Atkins Street. The officer testified that in his experience “[i]f one

person breaks off, that typically tells me that that person has something that

they’re wanting to hide that the other group does not need to hide.” The trier of

fact may consider the expertise of police officers in drug investigations when

determining if the State presented substantial evidence.            State v. Grant, 722

N.W.2d 645, 648 (Iowa 2006).


7
  The Thomas dissent recognized that direct and circumstantial evidence are equally
probative, but nevertheless suggested the requirement that circumstantial evidence be
“entirely consistent with defendant’s guilt [and] wholly inconsistent with any rational
hypothesis of his innocence”—which has been abandoned for all other instances of
circumstantial evidence, see State v. O’Connell, 275 N.W.2d 197 (Iowa 1979),—should
remain the test in actual possession cases. Thomas, 847 N.W.2d at 451.
8
  The Thomas dissent believed the possession evidence in that case pointed equally to
Thomas and to the other occupants of the apartment. Thomas, 847 N.W.2d at 456. By
contrast, in this case, McLachlan was the only person the officer saw in the vicinity of the
drugs found under the bushes.
                                         12



       McLachlan entered a backyard and was out of the officer’s sight for no

more than twenty seconds. Shortly after apprehending McLachlan, the officer

found bags of marijuana which appeared to have been tossed, not buried, under

the bushes along the fence line closest to the street. The officer saw no other

people in that backyard or near the fence line. Officer Hedlund testified it was

unlikely another dealer would have left the bags of marijuana in that unsecured

location for any stretch of time because of their high monetary value.        See

generally Thomas, 847 N.W.2d at 438 n.1 (quoting with approval prosecutor’s

closing argument that it would be unusual for a drug dealer to “leave drugs laying

out”). Viewing the evidence in the light most favorable to the State, we find

adequate circumstantial evidence that the marijuana found in the bushes was in

McLachlan’s actual possession when he ran from the officer.

       As far as McLachlan’s intent to deliver, the quantity of the marijuana found

in the bags recovered from the south side of Atkins Street supported that

inference. See State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). In addition,

Officer Hedlund found it significant that smaller baggies of marijuana, as well as

yet-to-be used baggies, were found on the north side of the street where the rest

of the group remained. The officer believed the group members “as a whole

were working together to distribute marijuana.” Considering all of the evidence

offered in the State’s case, we conclude the question of McLachlan’s guilt for

possession with intent to deliver was properly sent to the jury.
                                              13



IV.      Jury Instruction on Constructive Possession

         Constructive possession is also the focus of McLachlan’s complaint about

the jury instructions. He argues the district court erred in refusing his request to

provide the jurors with a list of factors to consider in deciding whether the State

proved constructive possession as formulated by the court in Cashen, 666

N.W.2d at 571.

         We review jury instruction challenges to correct legal error.              State v.

Becker, 818 N.W.2d 135, 140 (Iowa 2012). We apply an abuse of discretion

standard to the related claim that the district court should have given an

instruction requested by the defendant. Id. “An abuse of discretion occurs when

the court’s decision is based on a ground or reason that is clearly untenable or

when the court's discretion is exercised to a clearly unreasonable degree.” Id.

         The district court gave the uniform instruction defining possession,9 but

declined McLachlan’s request for an additional instruction providing the jurors

with examples of circumstances from which they could infer constructive



9
    Jury Instruction No. 22 states:
                   The word “possession” includes actual as well as constructive
          possession, and also sole as well as joint possession. A person who has
          direct physical control on or around his person is in actual possession of
          it.
                   A person who is not in actual possession, but who has knowledge
          of the presence of something and has the authority or right to maintain
          control of it either alone or together with someone else, is in constructive
          possession of it. A person’s mere presence alone, at a place where a
          thing is found, is not enough to support a conclusion that the person
          possessed the thing. You must consider whether all the facts and
          circumstances, as established by the evidence, allow a reasonable
          inference that the defendant knew of the drug’s presence and had the
          right to maintain control over it.
                   If one person alone has possession of something, possession is
          sole. If two or more persons share possession, possession is joint.
                                         14



possession if the defendant did not have exclusive possession of the premises

where the contraband was found. The court reasoned it would be “inappropriate

for this Court to start to list some factors, more specifically some factors that are

not present as requested by the defendant in the requested instruction and not to

mention other factors that the jury could consider.” The court ultimately ruled it

would be an “unfair comment on the evidence” to give a so-called Cashen

instruction.

       We find no abuse of discretion in the court’s refusal to draw the jury’s

attention to a non-exclusive list of factors used on appeal to decide if the

evidence established constructive possession.        Jury instructions should not

comment on specific evidence. McLaughlin v. State, 533 N.W.2d 546, 548 (Iowa

1995). An instruction that highlighted fingerprints or statements by the defendant

upon discovery of the drugs may have unduly limited the jury’s assessment of the

totality of evidence presented. Cf. State v. Moeller, 616 N.W.2d 424 (S.D. 2000)

(concluding judge was correct in declining to give jury a specific list of mitigating

factors in the penalty phase of the trial because it might have been perceived as

a comment on the evidence).

       Even if the additional constructive possession instruction had been proper,

McLachlan cannot show he was prejudiced by its absence. A court’s refusal to

give a party’s proposed instruction is not prejudicial when that party’s counsel

can still effectively advance its theory of the case to the jury. Crawford v. Yotty,

828 N.W.2d 295, 307 (Iowa 2013). McLachlan’s counsel was able to advance

his theory by calling a private detective to testify McLachlan’s fingerprints were
                                             15



not found on the baggies and by emphasizing that point in closing argument.

Counsel also argued in closing that when the officer confronted McLachlan with

the drugs, McLachlan denied they belonged to him.

       Moreover, as noted above, the State offered substantial circumstantial

evidence of McLachlan’s actual possession of the marijuana. Given the proof of

recent actual possession, McLachlan cannot show prejudice resulting from the

absence of an additional instruction regarding constructive possession.

V.     Hearsay from Third Party

       McLachlan challenges the district court’s exclusion of an out-of-court

statement claiming ownership of the marijuana made by a member of the group

that remained on the north side of the street.               McLachlan recognizes the

statement was hearsay,10 but claims the court should have applied the

exceptions at Iowa Rules of Evidence 5.80411 or 5.807.12                   We review the



10
    Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Iowa R.
Evid. 5.801(c).
11
     A hearsay statement may be introduced if the declarant is unavailable and the
statement was so contrary to the declarant’s interest it would not have been said unless
believed to be true. Iowa R. Evid. 5.804(b)(3). “A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the
statement.” Id.
12
    A statement not specifically covered by any of the exceptions in rules 5.803 or 5.804
but having equivalent circumstantial guarantees of trustworthiness, is not excluded by
the hearsay rule, if the court determines that (A) the statement is offered as evidence of
a material fact; (B) the statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes known to the adverse
party sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant. Iowa R. Evid. 5.807.
                                         16



admissibility of hearsay evidence for corrections of errors at law.         State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003).

        As McLachlan was being transferred between police vehicles, he yelled to

the rest of his group: “Hey, just take this for me. I’m going to get ten years for

this.” A member of the group, later identified as Kenneth Jones, responded:

“Yeah, it’s mine.”13     The State sought to offer McLachlan’s statement as

probative of his “knowledge and his motive and his intent of not wanting to go to

prison for ten years.”    The defense urged that Jones was unavailable as a

witness and sought to offer his out-of-court response under the exception for

statements against interest or the residual exception. The prosecutor argued

against admitting Jones’s statement: “This individual was always seen on the

north side of the street.   And that’s why the officer didn’t do any follow-up,

because they didn’t believe that statement because earlier he had told them no.”

        The district court excluded McLachlan’s statement imploring his

companions, most of whom were juveniles, to help him avoid a lengthy prison

term.   The court decided McLachlan’s statement was more prejudicial than

probative. The court also excluded Jones’s statement belatedly claiming the

marijuana belonged to him. The court was “not convinced” the defense had

shown the witness was unavailable for purposes of Rule 5.804(b)(3) and

concluded the defense did not provide proper notice or show the statement was

sufficiently trustworthy for purposes of the residual exception at 5.807.



13
   Despite being equipped with both audio and video recording capabilities, Officer
Hedlund did not activate either system during the encounter with McLachlan and the
others in his group.
                                           17



       On appeal, McLachlan argues despite its best efforts, the defense was

unable to find Jones before trial. McLachlan also points to several corroborating

circumstances to support admissibility of Jones’s statement under rule

5.804(b)(3).    McLachlan also argues he satisfied the factors for admissibility

under rule 5.807.

       The State counters with a defense of the district court’s rulings. But as a

back-up plan, the State argues any error in excluding Jones’s statement was

harmless.      “An erroneous evidentiary ruling is harmless if it does not cause

prejudice.” State v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011). The State

contends McLachlan was not prejudiced for two reasons: (1) even if the jurors

had heard and believed Jones’s statement that the marijuana was his, such a

claim of ownership would not have precluded a possessory right in McLachlan

and (2) under the rule of completeness expressed in Iowa Rule of Evidence

5.106(a),14 where part of a conversation is introduced by one party, any other

part of the conversation is admissible when necessary in the interest of fairness.

       Without determining the admissibility of the hearsay, we accept the State’s

harmlessness argument as related to rule 5.106. Under that rule, the district

court could not have allowed the defense to offer Jones’s statement—“Yeah, it’s

mine”—into evidence without also allowing the State to offer the part of the

exchange which immediately preceded the admission, which was McLachlan’s

call for someone to “take this for me. I’m looking at ten years.” It has long been


14
    “When an act, declaration, conversation, writing, or recorded statement, or part
thereof, is introduced by a party, any other part or any other act, declaration,
conversation, writing, or recorded statement is admissible when necessary in the interest
of fairness, a clear understanding, or an adequate explanation.”
                                         18



our law that “when one party inquires as to part of a conversation, the other is

entitled to the whole thereof, bearing upon the same subject.” See State v.

Rutledge, 113 N.W. 461, 464 (Iowa 1907).

       When addressing the hearsay issue on appeal, McLachlan does not argue

he would have still sought to admit Jones’s statement knowing it would come as

a package deal with his own out-of-court request to the group. And if the district

court had allowed the jury to hear the entire conversation, when viewed in

context, Jones’s statement would have had minimal probative value compared to

the prejudicial nature of McLachlan’s own statement. Accordingly, we conclude

exclusion of Jones’s hearsay statement was harmless.

VI.    Confrontation of Lab Technician

       McLachlan next argues his confrontation rights were violated by admission

of a Division of Criminal Investigation (DCI) crime lab report concerning the

testing and weighing of the marijuana without the testimony of the criminalist.

McLachlan’s argument on appeal differs from his objection in the district court.

       On October 11, 2012, the State filed a notice of an additional witness,

indicating DCI criminalist Kilgore or her designee would “testify in detail regarding

the method and procedure used in the analysis of the evidence and will testify

regarding the results of the analyses as documented in the DCI laboratory report

prepared in connection with this case.”       The lab report cited language from
                                            19



Iowa’s notice and demand statute, Iowa Code section 691.2,15 indicating its

findings were admissible without the testimony of a criminalist.

       On the eve of trial, the State filed an exhibit list including the laboratory

report. At the pretrial conference on the morning of trial, McLachlan objected to

the admission of the report, without the accompanying testimony of the

criminalist, as a violation of his Sixth Amendment right to confrontation. Defense

counsel cited Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709 (2011), as

requiring the prosecution to offer a live witness who is competent to testify to the

truth of the report’s statements. The prosecutor noted the defense had not filed a

ten-day notice asking for the criminalist to appear under section 691.2. Defense

counsel responded “the statute does not trump the constitution.” The district

court overruled the objection and allowed the report into evidence.

       In Bullcoming, the United States Supreme Court recognized the validity of

“notice and demand” procedures like section 691.2. 131 S. Ct. at 2718 (citing

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326 (2009), for the proposition


15
               Any report, or copy of a report, or the findings of the criminalistics
      laboratory shall be received in evidence, if determined to be relevant, in
      any court, preliminary hearing, grand jury proceeding, civil proceeding,
      administrative hearing, and forfeiture proceeding in the same manner and
      with the same force and effect as if the employee or technician of the
      criminalistics laboratory who accomplished the requested analysis,
      comparison, or identification had testified in person.
               A party or the party’s attorney may request that an employee or
      technician testify in person at a criminal trial, administrative hearing, or
      forfeiture proceeding on behalf of the state or the adverse agency of the
      state, by notifying the proper county attorney, or in the case of an
      administrative proceeding the adverse agency, at least ten days before
      the date of the criminal trial, administrative hearing, or forfeiture
      proceeding. A party or the party’s attorney in any other civil proceeding
      may require an employee or technician to testify in person pursuant to a
      subpoena.
Iowa Code § 691.2 (emphasis added).
                                         20



that notice-and-demand statutes permit the defendant to assert (or forfeit by

silence) his confrontation right after receiving notice of the prosecution’s intent to

offer a forensic analyst’s report). Accordingly, the district court aptly rejected

McLachlan’s confrontation clause argument.

       On appeal, McLachlan switches gears and asserts the district court should

have interpreted a paragraph in his November 30, 2012, motion in limine, as a

demand for Kilgore to testify. McLachlan points to one paragraph, among twenty

some in that motion, which states he would “object and move for mistrial if the

State attempts to admit . . . [a]ny testimonial evidence from witnesses who will

not testify at trial.” The motion did not specifically mention Kilgore’s expected

testimony.

       The State argues McLachlan failed to preserve error on his appellate

claim because he did not assert at trial that he had given proper notice under

section 691.2.    We agree with the State.       McLachlan is confronted with an

obvious preservation problem. See State v. Rutledge, 600 N.W.2d 324, 325

(Iowa 1999) (reminding litigants “[n]othing is more basic in the law of appeal and

error than the axiom that a party cannot sing a song to us that was not first sung

in trial court”). Because this argument was not presented to the district court, it is

not properly before us.

       Even assuming arguendo that error was preserved, the highlighted

language—buried amidst paragraphs of boilerplate in the defense motion in

limine—could not be construed as a request for a criminalist to testify.         The

paragraph stated defendant’s intent to object to evidence which violated the
                                        21



confrontation clause, which the lab report did not. Because McLachlan did not

request that Kilgore testify in person, he waived his opportunity to confront her

under the clear language of section 691.2.

VII.   Prior Criminal History

       McLachlan’s final issue involves the admissibility of his prior convictions

for impeachment purposes under Iowa Rule of Evidence 5.609(a). The district

court ruled the State could not go into the fact McLachlan had a prior drug

conviction, but—if he decided to take the stand—would be allowed to ask him

“the simple question as to whether or not he has been previously convicted of a

felony.” McLachlan opted not to testify. But he nevertheless challenges the

court’s ruling under rule 5.609(a) on appeal.

       “It has long been settled law that a criminal defendant must testify and

confront the impeachment evidence before seeking an appellate determination of

admissibility.” State v. Derby, 800 N.W.2d 52, 59 (Iowa 2011). As McLachlan

decided not to testify, he did not preserve this argument for appellate review.

See id. at 55.

       In conclusion, we hold the district court mistakenly allowed the State to

amend the trial information by charging a wholly new and different offense.

Accordingly, we vacate the drug tax stamp conviction and remand for entry of a

revised sentencing order. We affirm on the remaining claims.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
