                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0401
                              Filed June 25, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES E. FARNSWORTH II,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Colleen D.

Weiland, Judge.



      James Farnsworth appeals his conviction for second-degree murder.

AFFIRMED.



      David A. Roth of Gallagher, Langlas & Gallagher, P.C., Waterloo, for

appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson and Susan Krisko,

Assistant Attorneys General, and Carlyle D. Dalen, County Attorney, for appellee.



      Heard by Vogel, P.J., and Doyle and Tabor, JJ.
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VOGEL, P.J.

       James Farnsworth appeals his conviction for second-degree murder.

Farnsworth asserts three bases of error: (1) the State engaged in prosecutorial

misconduct when it referenced Farnsworth’s conduct earlier in the evening, prior

to the fight in which he stabbed the victim; (2) the district court abused its

discretion when it granted the State’s motion to strike a prospective juror for

cause; and (3) Farnsworth’s Miranda rights were violated when the State

introduced evidence of his statements to police. We conclude Farnsworth failed

to preserve error on both his prosecutorial misconduct and Miranda claims. We

further conclude the district court did not abuse its discretion when striking the

prospective juror for cause. Consequently, we affirm Farnsworth’s conviction.

I. Factual and Procedural Background

       Several witnesses to the details of this incident testified, each relating

slightly different facts depending on their proximity to certain actions.   None,

however, contradicted another. Based on this testimony, the jury could have

found the following facts. On April 13, 2012, Farnsworth, his girlfriend, Victoria

Miller, and several others were at the apartment of Echo Dority. The group then

decided to go to a local bar. At the bar, Miller received a text of a smiley face

from her ex-boyfriend, Ian Decker, who is also the father of her child. Farnsworth

and Miller argued, and Farnsworth slapped Miller. Miller then told Farnsworth

she was “done with him” and that he should leave. With the encouragement of

others in the group, Farnsworth left.

       Not long after that, the group decided to go back to Dority’s apartment.

Farnsworth was waiting around the corner from the bar.             Miller ignored
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Farnsworth and others told him to leave. Undeterred, Farnsworth followed the

group, which continued to largely ignore his presence.              When Farnsworth

approached Miller, Dority kicked Farnsworth in the crotch, causing him to fall to

the ground. Farnsworth got up and ran to Dority’s apartment, arriving ahead of

the group.

       Dority did not allow Farnsworth to enter her apartment. In an effort to talk

with Miller, Farnsworth sent her numerous text messages. Miller replied, telling

him to leave and that “[e]veryone wants to beat the f*** out of you.” Farnsworth

threatened to kill himself and walked away from the door and out of sight of those

in the apartment.

       Dority and Miller went outside the apartment to wait for Decker, whom

Dority had invited.    After Decker’s arrival, Farnsworth came from around the

corner and made a request to speak with Miller, which she refused. Miller and

Decker told Farnsworth to leave, so he got in his car and drove quickly away.

However, a few minutes later, Farnsworth “came barreling back down the street”

as other guests, Alyssa Fullerton and Derek Wentworth, were leaving the

apartment.     Miller and Wentworth told Farnsworth to leave.               Farnsworth

approached Miller, and Wentworth stepped between the two.                   After Miller

informed Farnsworth she did not want to speak with him, Farnsworth stated: “If

Ian [Decker] tries anything, I’m going to f****** stab him.”1

       Decker was standing around the corner of the apartment building. Upon

hearing Miller and Farnsworth arguing, Decker appeared to be very angry. He


1
 At trial, Miller testified she knew Farnsworth kept a knife in the center console of his
car, but that, to her knowledge, he never carried the knife in his pocket.
                                        4


walked around the corner and began fighting with Farnsworth.           It was not

disputed that Decker threw the first punch. Miller tried to warn Decker by yelling,

“[S]top, [Decker], he has a knife.” The two continued fighting and grappled on

the ground but both got back up.       At one point, Decker was hunched over

Farnsworth, but Farnsworth was able to throw Decker off of him. When Decker

stood up, he lifted his shirt to reveal blood streaming down his chest and onto the

sidewalk.   Decker collapsed; Miller and Dority applied pressure to his chest

wound. Farnsworth stood there briefly, then got in his car and sped away. It was

later revealed Decker had been stabbed once in the ribs, once in the thigh, and

had a cutting wound on his left forearm. Although police and paramedics quickly

arrived, Decker died at the scene from the stab wound in his side, which had

pierced his heart.

       Police stopped Farnsworth shortly after he drove away. Farnsworth was

cooperative and informed police the knife was in his center console.        When

asked what happened, Farnsworth replied Decker had punched him four or five

times, prompting Farnsworth to pull the knife from his pocket and “[fling] it

around.”    Although Farnsworth had some visible injuries, he refused medical

treatment and was transported to the police station. Farnsworth later complained

about being dizzy, and was then taken to the hospital. A neurological exam

revealed the absence of a head injury, and though the doctor thought perhaps

Farnsworth’s nose was broken, Farnsworth refused to have X-rays taken and

declined further treatment.

       Farnsworth was charged with murder in the second degree on April 20,

2012, in violation of Iowa Code sections 707.1 and 707.3 (2011). A jury trial was
                                         5


held, and on January 17, 2013, the jury returned a verdict of guilty. Farnsworth

appeals.

II. Error Preservation

       To preserve error on appeal, the party must first state the objection in a

timely manner, that is, at a time when corrective action can be taken, in addition

to the basis for the objection. State v. Krogmann, 804 N.W.2d 518, 524 (Iowa

2011) (holding a one-page resistance that stated there was no legal basis for the

State’s actions did not properly preserve error with respect to the defendant’s

constitutional claims).    This reflects both the substantive and timeliness

components of error preservation. Id. at 523. The court must then rule on the

properly raised objection. Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012).

“If the court’s ruling indicates that the court considered the issue and necessarily

ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has

been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa

2002)).

       A. Prosecutorial Misconduct

       Farnsworth first asserts the State engaged in prosecutorial misconduct

when it argued that the relevant portion of time regarding whether Farnsworth

was the initial aggressor included the events of the evening, preceding the

ultimate altercation. He also claims that, during its closing arguments, the State

prejudicially misled the jury regarding the law of justification and whether

Farnsworth had an alternative course of action under the law.

       However, at no point during the trial did Farnsworth claim the State

engaged in prosecutorial misconduct, or otherwise object to the statements he
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now contests on appeal.     Even his generic post-trial motion was too late to

preserve error. See Krogmann, 804 N.W.2d at 524. Farnsworth cannot obtain a

new trial asserting prosecutorial misconduct when he failed to move for a mistrial

at the time the alleged prosecutorial misconduct occurred. See id. at 526. By

not objecting or otherwise alleging prosecutorial misconduct at the time of trial,

Farnsworth failed to preserve error.

      However, regardless of the error preservation issue, Farnsworth’s

argument regarding prosecutorial misconduct fails.     To prevail on this claim,

Farnsworth must show both that misconduct occurred and that he was so

prejudiced by the error he was deprived of a fair trial. See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003). Primarily, Farnsworth cannot show the prosecutor

improperly referenced his conduct from earlier in the evening, that is, slapping

Miller at the bar. The jury must consider the complete story of the crime in

deciding whether Farnsworth started or continued the incident, as required of a

justification defense. See State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct. App.

1998). Consequently, there was no prosecutorial misconduct when the State

introduced evidence of the events leading up to the altercation.       Moreover,

Farnsworth failed to demonstrate prejudice occurred when the prosecutor stated

Decker “had been seriously provoked by the fact that the defendant was

speaking to Miller.” The jury received the proper instruction defining serious

provocation. Furthermore, this was only relevant to the lesser included offense

of voluntary manslaughter, which was not the crime of which Farnsworth was

convicted. Therefore, this argument also fails.
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          B. Miranda Violation

          Farnsworth next argues the State unconstitutionally used his silence—or

lack of response—against him, resulting in a Miranda violation.                 The State

questioned the officer who apprehended Farnsworth as to whether Farnsworth

made any statements that would support his defense of justification.2 However,

Farnsworth did not file a motion to exclude this evidence or object to its

introduction at trial. This argument was thus never considered by the trial court,

and Farnsworth failed to preserve error. See Lamasters, 821 N.W.2d at 864.

          Moreover, even if we were to address the merits of Farnsworth’s claim, it

would fail. Farnsworth asserted he acted in self defense. The State did not use

Farnsworth’s silence after his receipt of Miranda warnings to impeach his

justification claim, a strategy that would result in a Miranda violation. Rather, the

State engaged in a proper cross-examination by using Farnsworth’s voluntary

statements to police concerning his involvement in the incident to impeach his

claim.      See State v. Metz, 636 N.W.2d 94, 97 (Iowa 2001) (“[T]he Fifth

Amendment guaranty against self-incrimination prohibits impeachment on the

basis of a criminal defendant’s silence after receipt of Miranda warnings.”); see

2
    Specifically, the following exchange occurred:
                   Q: What’s the first thing that the defendant says that you can
          recall about what had happened? A: He ran at me because I’m dating his
          ex-girlfriend, slash, baby’s mama. He ran at me and punched me four to
          five times. My right hand was in my pocket, and that’s where my knife
          was. I pulled it out and flung it around. That’s when he fell down. He
          then said—I apologize for my language—I f***ing put it back in my pocket
          and I left.
                   Q: Is that his entire statement regarding what he told you? The
          first statement that he ever made to a police officer, is that exactly what
          he said? A: Yes.
                   Q: Did he say that he had acted in self-defense? A: No.
                   Q: Did he say that he was scared? A: No.
                   Q: Did he ask about Ian Decker? A: No.
                                           8

also Anderson v. Charles, 447 U.S. 404, 408 (1980) (holding there is no Miranda

violation when the prosecutor engages in cross-examination that “merely inquires

into prior inconsistent statements”).          Consequently, no Miranda violation

occurred.

III. Juror Strike

       Farnsworth’s final claim is the district court abused its discretion by

granting the State’s challenge for cause. Farnsworth asserts he was prejudiced

by this decision because the State was then able to exercise more of its

peremptory strikes, which he asserts resulted in a biased jury.

       We review the district court’s ruling on a challenge for cause for an abuse

of discretion. State v. Hardin, 498 N.W.2d 677, 681 (Iowa 1993). The test to be

applied in a ruling on challenges for cause is “whether the juror holds such a

fixed opinion on the merits of the case that he or she cannot judge impartially the

guilt or innocence of the defendant.” State v. Neuendorf, 509 N.W.2d 743, 746

(Iowa 1993) (internal citation omitted).

       During voir dire, one prospective juror stated that his son had been

convicted of drug charges and “did not get treated fairly at all” when sentenced.

When asked if he could set aside his perception of his son’s treatment, the juror

responded “I would have a hard time convicting this young man. I would.”        He

also stated that he would have to be “thoroughly convinced” of Farnsworth’s guilt.

When asked whether the State and Farnsworth would begin the trial on a level

playing field, the juror stated Farnsworth was “off to a head start with me.” He

said it would have to be “hands down” and “no doubt.” When inquiring further

into whether the juror would be able to apply the beyond-a-reasonable-doubt
                                             9


standard of proof, he responded that he “would have a very difficult time doing

that.”

         In granting the State’s motion to strike this juror for cause, the district court

stated:

         I’m pretty uncomfortable with [this prospective juror]. When he’s
         asked specific questions by [defense counsel], he says “yes” but he
         backtracks immediately when [the State] is asking him questions
         and his body language is telling me he’s not—his body language is
         telling me he’s finding a way to acquit despite what evidence might
         or might not be.

The court further noted this juror said he would not follow the law regarding the

State’s burden of proof.

         We find no abuse of discretion in the court’s decision to strike this juror for

cause. The juror clearly indicated his bias toward the defense. This is enough to

show he could not “judge impartially the guilt or innocence of the defendant.” Id.

Consequently, we affirm the decision of the district court.

         Having considered all issues properly preserved for appeal, we affirm

Farnsworth’s conviction.

         AFFIRMED.
