                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0318
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRAVIS LEE DENNEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris, Judge.



      Travis Lee Denney appeals his conviction of indecent exposure in

violation of Iowa Code section 709.9 (2013). AFFIRMED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin R Cmelik and Tyler J.

Buller, Assistant Attorneys General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

      Travis Lee Denney appeals his conviction of indecent exposure in

violation of Iowa Code section 709.9 (2013).       Denney raises two issues on

appeal: (1) the district court abused its discretion in denying Denney’s motion for

mistrial when the court referred to Denney’s attorney as a public defender and (2)

the district court abused its discretion in ruling Denney’s prior theft convictions

were admissible for impeachment purposes in the event Denney testified.

      I.     Background Facts and Proceedings

      On August 25, 2014, both Denney and Krista Zahner were in the parking

lot of a Target store in Waterloo, Iowa.      At trial, Zahner testified that, when

returning to her car from putting her cart in the cart corral, Denney drove his car

up next to the driver’s side of Zahner’s vehicle. As Zahner was getting into her

vehicle, she caught a glimpse of Denney’s penis in a side-view mirror. Zahner

testified Denney yelled, “Hey,” at her a couple of times and then yelled, “Excuse

me.” When Zahner turned to look at Denney, she saw that he was masturbating.

Zahner testified, “[Denney’s] [p]ants were unbuttoned and unzipped. The penis

was out. It was erect, and he was stroking it.” Zahner identified Denney from a

photo array; Denney was subsequently arrested for indecent exposure, a serious

misdemeanor.

      At trial, Denney was represented by a public defender. During voir dire,

the court introduced Denney’s counsel as a member of the public defender’s

office. Following jury selection, Denney’s counsel moved for a mistrial based on

that reference, which the court denied.
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      At the close of the State’s case, Denney’s counsel indicated Denney

would take the stand and objected to the admission of Denney’s prior theft

convictions for impeachment purposes. The court overruled the objection, and

Denney testified about the convictions on direct examination.

      The jury found Denney guilty. Denney appeals.

      II.    Standard and Scope of Review

      We review the district court’s denial of a motion for mistrial for an abuse of

discretion. See State v. Newell, 710 N.W.2d 6, 32 (Iowa 2006). “A mistrial is

appropriate when ‘an impartial verdict cannot be reached’ or the verdict ‘would

have to be reversed on appeal due to an obvious procedural error in the trial.’”

Id. (citation omitted). “The pertinent question here is whether the trial court was

clearly unreasonable in concluding an impartial verdict could be reached

notwithstanding” reference to Denney’s counsel as being a public defender. Id.

      We review evidentiary rulings for abuse of discretion.         See State v.

Harrington, 800 N.W.2d 46, 48 (Iowa 2011). “A court abuses its discretion when

its ‘discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014)

(quoting State v. Long, 814 N.W.2d 572, 576 (Iowa 2012)). “A ground or reason

is untenable when it is not supported by substantial evidence or when it is based

on an erroneous application of the law.” Id. (quoting In re Det. of Stenzel, 827

N.W.2d 690, 697 (Iowa 2013)). Even if an abuse of discretion has occurred,

“reversal will not be warranted if error was harmless.” State v. Reynolds, 765

N.W.2d 283, 288 (Iowa 2009).
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       III.    Analysis

               A.     Reference to Counsel as Public Defender

       During voir dire, the district court introduced the attorneys to the potential

jury members, identifying defense counsel as a member of the public defender’s

office. Following jury selection, defense counsel moved for a mistrial, arguing

“any reference to the defendant’s financial status through them having court-

appointed counsel is inherently prejudicial to the defendant.” Defense counsel

admitted the statement by the court was a “passing reference” but argued there

was no probative value to the statement and, thus, it was outweighed by the

inherent prejudice, citing Iowa Rule of Evidence 5.403. Employing the balancing

approach under rule 5.403, the district court denied the motion for mistrial.

       On appeal, Denney makes two arguments: (1) the district court’s use of

the balancing test was improper, because the statement was not evidence,

relevant, nor possessing any probative value, and (2) the court improperly found

there was “no inherent prejudice” in introducing defense counsel as a member of

the public defender’s office. The State responds: (1) the district court looked to

rule 5.403 only for guidance, not as the sole basis for its decision, and did so at

the direction of defense counsel, and (2) the reference was not inherently

prejudicial and, even if it were, it does not entitle Denney to a mistrial.

       In support of his argument, Denney relies upon two cases, State v. Sallis,

574 N.W.2d 15 (Iowa 1998), and State v. Roghair, 353 N.W.2d 433 (Iowa Ct.

App. 1984), neither of which are directly on point. In Sallis, the defendant argued

he was prejudiced by the admission of his application for appointment of counsel

as evidence.     574 N.W.2d at 16.       Because the statement was admitted as
                                         5


evidence, the supreme court considered its relevance and whether the probative

value of the evidence was outweighed by the prejudicial effect. Id. at 17. The

Sallis court was “unwilling to adopt [a] bright line rule” that “evidence showing a

defendant is represented by appointed counsel is by its very nature prejudicial.”

Id. The court concluded, “[i]n the proper case a defendant’s affidavit of financial

condition might prove crucial to establishing the elements of the offense

charged.” Id.

      Similarly, in Roghair, the challenged issue was the admission of

evidence—specifically, questions regarding the defendant’s financial status as

reflected on his affidavit of indigency. 353 N.W.2d at 434. The court concluded

“[t]he evidence was irrelevant and immaterial to any matters in issue.” Id. at 435.

      Here, the challenge is not based upon an admission of evidence. There

was no evidence presented that Denney’s counsel was a public defender or that

he was in any other way indigent, nor was an evidentiary challenge or ruling

made. Instead, at issue is a “passing reference” made by the district court before

the jury was impaneled. “The pertinent question is whether the trial court was

clearly unreasonable in concluding an impartial verdict could be reached

notwithstanding” this statement. Newell, 710 N.W.2d at 32.

      Numerous courts outside this state have considered this question and,

based on the circumstances and applicable standards, found references to

defense counsel as a public defender did not necessitate a mistrial, see e.g.,

Landreth v. State, 960 S.W.2d 434, 439 (Ark. 1998) (affirming the denial of

mistrial, reasoning “[a]ny prejudice caused by reference to defense counsel as

‘public defenders’ is speculative at best”); State v. Fayne, No. W2012-01488-
                                          6


CCA-R3-CD, 2013 WL 8844096, at *7 (Tenn. Crim. App. July 2, 2013) (affirming

denial of mistrial where prosecutor introduced himself as “with the district

attorney’s office” and then introduced defense counsel as “with the public

defender’s office” to the venire members); Commonwealth v. Palm, 903 A.2d

1244, 1247 (Pa. Super. Ct. 2006) (“[A]ny reference to counsel as the public

defender is insignificant and does not violate equal protection.” (citation omitted));

People v. Dembry, 91 P.3d 431, 436 (Colo. App. 2003) (“[W]e cannot conclude

that defendant was unfairly prejudiced when the prosecution’s expert witness

referred to defense counsel as the public defender.            Defendant offers no

evidence or authority for the proposition that being represented by the public

defender’s office is prejudicial in any way.”), particularly where the reference was

isolated or innocently made, see, e.g., State v. Atkinson, 774 N.W.2d 584, 596

(Minn. 2009) (“As for the public defender reference, the witness’s offhand remark

that an investigator gathering evidence related to the case worked for the ‘Public

Defender’s Office’ was indirect and fleeting, and any prejudice attributable to the

comment was insignificant.”); State v. Reed, 2008 WL 4901297, at *6 (N.J.

Super. Ct. App. Div. Nov. 17, 2008) (per curiam) (“Even if the mention of the

Public Defender’s Office can be viewed as error, it is no doubt harmless error. In

light of [the evidence], we do not find that the mere one-time mention of the

Public Defender’s Office could be capable of influencing the jury’s ultimate

decision.” (citation omitted)); People v. James, 117 P.3d 91, 96 (Colo. App. 2004)

(“[W]e conclude that the witness’s fleeting reference here to ‘the public defender’

did not substantially prejudice defendant.”); People v. Tabata, No. B168099,

2004 WL 859188, at *7 (Cal. Ct. App. Apr. 22, 2004) (“In this case, the minimal
                                             7


reference to the public defender was innocently made by a witness without

accompanying implication that defendant’s poverty dictated a need either for

public representation or motive for the robberies.”); State v. Williams, 458 So. 2d

1315, 1342 (La. Ct. App. 1987) (“[T]wo brief references to the public defender’s

office did not affect defendant’s right to a fair trial.”).1

       The court’s single comment, though not well-advised, was prior to the

commencement of trial and merely an introduction of the parties. It was not

evidence to be considered by the jury. We acknowledge “the trial court is in a

better position than this court ‘to gauge the effect of the [statement] on the jury.’”

State v. Hunt, 801 N.W.2d 366, 373 (Iowa Ct. App. 2011) (citation omitted). We

conclude this isolated reference alone did not preclude an impartial verdict; thus,

the district court did not abuse its broad discretion in denying the motion for

mistrial. See State v. Brown, 397 N.W.2d 689, 699 (Iowa 1986) (“Trial court has

broad discretion on ruling on motions for mistrial.”).




1
  Courts have also reasoned that such a comment can be cured by timely admonishment
by the court, see, e.g., Ploof v. State, 856 A.2d 539, 547 (Del. 2004) (affirming trial
court’s denial of mistrial where the prosecutor referred to defense counsel as public
defender, despite the reference implicating a central issue in the case—the defendant’s
resources—because the reference was cumulative and the judge took immediate
mitigating steps); Jackson v. State, 698 N.E.2d 809, 812 (Ind. Ct. App. 1998) (“While we
agree that the prosecutor’s remark [identifying defense counsel as a public defender]
was improper, the trial court’s admonishment to the jury cured any harm that may have
inured to [the defendant].”), that a mistrial is not warranted where the other evidence
admitted demonstrates the statement did not contribute to the conviction, see, e.g., State
v. Huntsman, 199 P.3d 155, 165 (Idaho Ct. App. 2008) (finding, based on the evidence
presented at trial, “there is no reasonable possibility that the jury’s knowledge that [the
defendant] was being represented by a public defender contributed to his conviction”),
and that a finding of prejudice is precluded where the defendant invited the response,
see, e.g., State v. Handwork, 2004-Ohio-6181, at ¶ 49, 2004 WL 2648011, at *5 (Ohio
Ct. App. Nov. 19, 2004) (finding the defendant failed to show he suffered prejudice as a
result of a witness’s inadvertent reference to the public defender’s office where the
defendant’s counsel had elicited the response).
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              B.     Prior Theft Convictions

       The admission of prior convictions for impeachment purposes is governed

by Iowa Rule of Evidence 5.609. See Harrington, 800 N.W.2d at 48-49. Rule

5.609 provides, in relevant part, that “[e]vidence that any witness has been

convicted of a crime shall be admitted if it involved dishonesty or false statement,

regardless of the punishment” in order to “attack[] the credibility of [that] witness.”

Iowa R. Evid. 5.609(a).

       Denney contends the district court erred in finding the theft convictions

were inherently dishonest acts as neither of the shoplifting incidents involved

theft “by fraudulent or deceitful means.”

       Historically, “[o]ur common law cases have repeatedly held theft and

burglary with the intent to commit theft are crimes of dishonesty.” Harrington,

800 N.W.2d at 51 (listing cases). However, “our longstanding construction of the

term ‘dishonesty’ is derived from common law cases predating our adoption of

the Iowa Rules of Evidence in 1983.” Id. at 51 n.4. Our supreme court has not

ruled on whether this historical interpretation of “dishonesty” is equally applicable

to rule 5.609. See id.

       When previously presented with this issue, this court reasoned “we do not

believe that we, as an intermediate appellate court, are at liberty to overturn

longstanding precedent from the Iowa Supreme Court consistently recognizing

theft as a crime that per se involves dishonesty.” See State v. O’Neal, No. 11-

0915, 2012 WL 4513809, at *5 (Iowa Ct. App. Oct. 3, 2012). We also noted “that

this precedent is at odds with the federal courts’ narrow interpretation of the rule.”

Id. Ultimately, we declined to predict “which path our supreme court will follow”
                                           9

because the admission of the theft conviction did not result in prejudice. Id. at *7

(“[W]e do not believe a substantial right of [the defendant] was affected by the

admission of his alibi witness’s fifth-degree theft conviction.”).

       “Reversal is not required for the erroneous admission of evidence unless

prejudice results.” State v. Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001); see

also Iowa R. Evid. 5.103(a) (“Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party is

affected . . . .”); State v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011).           “We

presume prejudice under this approach, unless the contrary is affirmatively

established.”   State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008).           “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. (citation omitted). “[W]here the

other evidence overwhelmingly establishes the defendant’s guilt, we have

applied the harmless error doctrine.” Rodriquez, 636 N.W.2d at 244; see also

State v. Caples, 857 N.W.2d 641, 648 (Iowa Ct. App. 2014).

       At trial, Denney admitted he was in the Target parking lot at the time at

issue, he stopped “near the end of the parking lot, and there was only one car,”

and Zahner saw him.          Zahner testified Denney called out to her, was

masturbating, and responded to her expression of disgust by smiling and

continuing to masturbate. While admitting he had unzipped his pants and his

hands were inside of his pants, Denney explained he was simply relieving

himself of an itch.
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       In addition to this evidence, Denney testified about his prior convictions in

his case in chief, as a result of the district court’s ruling.

              Q. Now, have you ever been convicted of any crime before?
       A. Yes. I have two thefts.
              Q. And when were those? A. They were August—in the
       20th. I’m not sure which day, but I know it was in August.
              Q. And what year? A. 2013.
              Q. And what was your situation at the time? A. My wife
       was just found out to be pregnant, and we had no food, and food
       stamps was having a mess-up, so we didn’t have food for a month,
       and I needed to have food for her.

       The prior convictions were not addressed by the State on cross-

examination. Based on the evidence presented at trial establishing Denney’s

guilt and the brief testimony provided on Denney’s prior convictions that largely

pertained to the mitigating circumstances of those thefts, we cannot find Denney

was injuriously affected by any potential error or that he suffered a miscarriage of

justice.

       IV.     Conclusion

       For the foregoing reasons, we affirm Denney’s conviction.

       AFFIRMED.
