                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0557
                                 Filed April 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY ERNEST MOORE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Duane E.

Hoffmeyer, Judge.



      A defendant appeals his conviction for operating while intoxicated, third

offense as a habitual offender. AFFIRMED.



      Michael J. Jacobsma of Jacobsma & Clabaugh P.L.C., Sioux Center, for

appellant.

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

General, Thomas Kunstle, County Attorney, and Andrea Glasgow, Assistant

County Attorney, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
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VAITHESWARAN, P.J.

       Gary Moore appeals his judgment and sentence for operating a motor

vehicle while intoxicated, third offense as a habitual offender, in violation of Iowa

Code sections 321J.2(2), 902.8 and 902.9(3) (2013). He does not challenge the

sufficiency of the evidence supporting the jury’s finding of guilt on the underlying

charge.     His appeal focuses on the separate sentencing enhancement

proceedings: the first to determine whether he was previously convicted of

operating while intoxicated and the second to determine whether he was

previously convicted of felonies.      Moore declined to stipulate to his identity,

requiring the State to present evidence he was one and the same person

convicted of all the prior crimes.

       The State attempted to meet its burden in the sentencing enhancement

proceedings by introducing certified copies of judgments and certified copies of

arrest records containing identifying information, including fingerprints. The State

also called a fingerprint identification expert. Juries subsequently found Moore to

be the person convicted of the prior crimes.

       On appeal, Moore contends (1) the district court’s admission of the

fingerprint records violated his rights under the Confrontation Clause of the

United States and Iowa Constitutions and (2) his trial attorney was ineffective in

failing to challenge the reliability of the fingerprint expert’s testimony.

       I.     Confrontation Clause

       As a preliminary matter, the State asserts Moore failed to preserve his

Iowa confrontation clause argument for appellate review and failed to challenge

on United States Confrontation Clause grounds fingerprint records introduced
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during the first sentencing enhancement proceeding. We agree on both counts.

Accordingly, we decline to consider Moore’s Iowa confrontation clause challenge

to any fingerprint records and his United States Confrontation Clause challenge

to the fingerprint records admitted in the first sentencing enhancement

proceeding. See State v. Robinson, 859 N.W.2d 464, 487 (Iowa 2015) (noting

defendant failed to preserve “any claim under the United States or Iowa

Constitutions”); State v. Hicks, No. 13-1912, 2015 WL 1046130, at *3-4 (Iowa Ct.

App. Mar. 11, 2015) (citing State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982))

(rejecting assertion that hearsay objection preserved error on Confrontation

Clause claim). We are left with Moore’s United States Confrontation Clause

challenge to the fingerprint records admitted during the habitual offender

sentencing enhancement proceeding.

      The Confrontation Clause of the United States Constitution grants a

person accused of crimes the right “to be confronted with the witnesses against

him.” U.S. Const. amend. VI. The clause prohibits the admission of “testimonial”

evidence without affording the defendant the opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 36, 51 (2003). Moore asserts,

“There is no doubt the exhibits were testimonial and subject to the restrictions of

the Confrontation Clause.” The State responds that the Confrontation Clause is

inapplicable to sentencing enhancement proceedings but, in any event, the

fingerprint evidence was not “testimonial.”

      We assume without deciding the Confrontation Clause of the United

States Constitution applies to sentencing enhancement proceedings.             We

proceed to the question of whether the fingerprint records were testimonial. Our
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appellate courts have not addressed this precise issue. However, similar records

have been found to be nontestimonial.

       In State v. Shipley, the Iowa Supreme Court concluded the admission of a

driving record abstract withstood a Confrontation Clause challenge.         State v.

Shipley, 757 N.W.2d 228, 230-31, 234-35 (Iowa 2008). The court specifically

held the “underlying driving record is ‘nontestimonial’ under Crawford and

admissible without the testimony of a live witness.”        Id. at 238.   The court

reasoned as follows: “[The driving record] was created prior to the events leading

up to [Shipley’s] criminal prosecution. As a result, Shipley’s driving record would

exist even if there had been no subsequent criminal prosecution.” Id. at 237.

       The Shipley court also rejected a Confrontation Clause challenge to the

certification of authenticity for the driving record. The court reasoned as follows:

       The purpose of the certification in this case is simply to confirm that
       a copy of a record is a true and accurate copy of a document that
       exists in a government data bank. The purpose of offering the
       certification is not to avoid cross-examination or to advance an
       inquisition, but only to allow the admission of an underlying record
       that was prepared in a nonadversarial setting prior to the institution
       of the criminal proceeding.

Id. at 238-39.

       The Iowa Supreme Court reaffirmed these holdings in State v. Kennedy,

846 N.W.2d 517, 523-24 (Iowa 2014). Faced with recent United States Supreme

Court opinions expounding on this issue, the court held the opinions did not

undermine Shipley. Kennedy, 846 N.W.2d at 524-25 (citing Melendez–Diaz v.

Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011)). The court reasoned as follows:
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       The compiling of the record does not require a scientist or
       technician to do any tests in order to report what already exists in
       the IDOT records. In other words, the certified abstract of a driving
       record is nothing more than a historical report of what is contained
       in the records of the IDOT.

Id., at 524-25; see also State v. Willet, No. 12-1628, 2013 WL 3830157, at *1-2

(Iowa Ct. App. July 24, 2013) (concluding records of judgment are

“nontestimonial and do not carry with them the right to confront the preparers as

witnesses” even “[t]hough the use of the records could be anticipated in a

subsequent proceeding, due to our escalating operating-while-intoxicated

punishment scheme,” because “this is [not] a primary purpose for the creation of

the records”); State v. Redmond, No. 10-1392, 2011 WL 3115845, at *2-5 (Iowa

Ct. App. July 27, 2011) (holding certified copies of records of prior convictions

were nontestimonial).

       Other jurisdictions considering the admission of fingerprint records have

concluded they are nontestimonial and admission of the records without live

testimony does not violate the Confrontation Clause.         See United States v.

Williams, 720 F.3d 674, 698-99 (8th Cir. 2013) (holding fingerprint cards “were

created as part of a routine booking procedure and not in anticipation of litigation,

i.e., ‘for the administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial’”); United States v. Diaz-Lopez, 403 F.

App’x 199, 202 (9th Cir. 2010) (holding fingerprint card “contains only ministerial,

objective observations” and “was not created in anticipation of litigation and is not

testimonial”); United States v. Segundo, 306 F. App’x 378, 380 (9th Cir. 2009)

(concluding the relevant information on the fingerprint card was not testimonial

because the fingerprints were “rolled” and “recorded . . . as part of the
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administrative process” to “book new detainees”); United States v. Thornton, 209

F. App’x 297, 299 (4th Cir. 2006) (“We conclude that the fingerprint cards were

not ‘testimonial,’ and that the admission of such business or public records does

not violate the rule in Crawford.”); United States v. Weiland, 420 F.3d 1062,

1076-77 (9th Cir. 2005) (holding with respect to “the records of conviction and the

information contained therein, the fingerprints, and the photograph,” that “public

records, such as judgments, are not themselves testimonial in nature and that

these records do not fall within the prohibition established by the Supreme Court

in Crawford”); Hamilton v. Lee, ___ F. Supp. 3d ___, ___, 2015 WL 1402316, at

*3, *8 (E.D.N.Y. 2015) (holding palm print photographs and the notation

indicating the detective took the prints from the defendant on the night of a

murder “were not directly accusatory and are therefore not ‘testimonial’ under the

confrontation clause” because “[t]hey were made primarily to identify defendant

in order to process his arrest, not to create evidence for a trial”); Colvin v. State,

No. 09-11-00206-CR, 2013 WL 2732050, at *12 (Tex. App. June 12, 2013)

(holding fingerprint records were nontestimonial, and not within ambit of the

Confrontation Clause).      We find these opinions persuasive, especially in

combination with our courts’ rejection of Confrontation Clause challenges to

similar types of records.

       Like the records at issue in Shipley and Kennedy, the fingerprint records

admitted in Moore’s habitual offender sentencing enhancement proceeding were

historical records prepared before his criminal prosecution.           Although the

fingerprints could not be tied to Moore without expert analysis, the person who

conducted the analysis was the person who testified. Cf. Bullcoming, 131 S. Ct.
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at 2717 (holding report of blood alcohol analysis was testimonial and presence of

the preparer of the report rather than a surrogate was required at trial);

Melendez-Diaz, 129 S. Ct. at 2532 (holding affidavits identifying seized material

as cocaine were testimonial and Melendez-Diaz had a right to be confronted with

the analysts at trial).

         We conclude the fingerprint records admitted during Moore’s habitual

offender enhancement proceeding were not testimonial.               Accordingly, the

admission of these records without live testimony from the preparer of the

records did not violate the Confrontation Clause of the Sixth Amendment to the

United States Constitution.

         II.    Ineffective-Assistance-of-Counsel Claim

         Moore contends his trial attorney was ineffective in failing to challenge the

reliability of the fingerprint expert’s testimony. He asserts the expert “provided no

principles or methodology by which to determine whether his conclusions could

be deemed reliable.”

         To succeed, Moore must establish the breach of an essential duty and

prejudice.     Strickland v. Washington, 466 U.S. 668, 687 (1984).         While we

normally preserve ineffective-assistance-of-counsel claims for postconviction

relief to permit development of the record, we find the record in this case

adequate to decide the issue. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa

1990).

         Iowa subscribes to an “expansive” test for admission of expert testimony.

See Iowa R. Evid. 5.702; Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525,

530 (Iowa 1999). The only requirements for admission are as follows: (1) the
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evidence must be relevant, (2) the testimony must be in the form of “scientific,

technical, or other specialized knowledge [that] will assist the trier of fact to

understand the evidence or to determine a fact in issue,” and (3) the expert must

be “qualified as an expert by knowledge, skill, experience, training, or education.”

Leaf, 590 N.W.2d at 533.

       The State easily satisfied these requirements. The fingerprint evidence

bore on the fighting issue in the enhancement proceedings: Moore’s identity.

The testimony was technical and specialized: the expert examined the

characteristics of the fingerprints to determine whether they were similar. Finally,

the expert was clearly qualified to render an opinion on this topic: he had over

twenty-five years of training and experience working with fingerprints. On our de

novo review, we conclude counsel did not breach an essential duty in failing to

object to the reliability of the expert testimony. See State v. Galbo, No. 13-1143,

2014 WL 4230206, at *2-3 (Iowa Ct. App. Aug. 27, 2014) (rejecting ineffective-

assistance-of-counsel claim premised on attorney’s failure to seek exclusion of

fingerprint evidence).

       We affirm Moore’s judgment and sentence for operating a motor vehicle

while intoxicated, third offense as a habitual offender.

       AFFIRMED.
