                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0665
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFFROE DELIDE WASHINGTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James D. Coil,

District Associate Judge.



      Jeffroe Delide Washington appeals his conviction and sentence for

domestic abuse assault causing bodily injury, enhanced.       REVERSED AND

REMANDED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Alexandra Link (until withdrawal)

and Kevin R. Cmelik, Assistant Attorneys General, for appellee.



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

       Jeffroe Delide Washington appeals his conviction and sentence for

domestic abuse assault causing bodily injury, enhanced, in violation of Iowa

Code section 708.2A(3)(b) (2013). Washington raises two arguments: (1) the

district court erred in overruling his objection that certain testimony presented at

trial exceeded the scope of the minutes of evidence and (2) the district court

erred in denying his motion for new trial because the weight of the evidence did

not support the jury’s finding.     Because we find the challenged testimony

exceeded the scope of the minutes of evidence, we reverse and remand.

       I.     Background Facts and Procedure

       On December 25, 2014, Washington was involved in an altercation with

Samantha Fliss, his long-time girlfriend and the mother of their infant son.

Washington had picked up Fliss and their son at Fliss’s mother’s house.

Washington allegedly hit Fliss while Fliss was in the car. Fliss then exited the

vehicle at a gas station and ultimately walked back to her mother’s house. When

Fliss left the house, she was without injury; when she returned, she had

sustained an injury to her eye. At trial Fliss denied Washington had hit her,

alleging the injury was likely sustained when she had attempted to hit

Washington and he had blocked her blow. Contrary to Fliss’s rendition of events,

Fliss’s mother, Mary Olmstead, testified Fliss had admitted Washington hit her.

Olmstead also testified about a phone conversation she had with her daughter

while Fliss was at the gas station. A responding police officer also testified Fliss

had told him Washington had hit her. The officer later clarified he was uncertain

whether it was Fliss or Olmstead who had made the comment.
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       Washington was charged and convicted of domestic abuse assault

causing bodily injury, enhanced. Washington timely appealed.

       II.    Standard and Scope of Review

       We review a ruling on an objection that certain testimony was beyond the

scope of the minutes of evidence for an abuse of discretion. State v. Hayes, 532

N.W.2d 472, 476 (Iowa Ct. App. 1995); see also State v. McMillen, No. 09-0487,

2010 WL 786037, at *2 (Iowa Ct. App. Mar. 10, 2010). “The minutes of testimony

need only be sufficient to alert the defendant generally to the source and nature

of the evidence against him.”      State v. Mehner, 480 N.W.2d 872, 878 (Iowa

1992). “Whether testimony is within the scope of the minutes must be decided

on a case-by-case basis.” State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984).

       III.   Analysis

       Iowa Rule of Criminal Procedure 2.5(3) requires the prosecuting attorney

to “file the minutes of evidence of the witnesses which shall consist of a notice in

writing stating the name and occupation of each witness upon whose expected

testimony the information is based, and a full and fair statement of the witness’

expected testimony.”1      See Mehner, 480 N.W.2d at 877 (“The minutes of

evidence must provide a full and fair statement of the witness’ expected

testimony.”). While “[t]he minutes need not list each detail to which a witness will

testify,” they must alert the defendant “to the source and nature of the information

against him.” Ellis, 350 N.W.2d at 181. “[W]hen the challenged minutes, though


1
  Rule 2.5(3) uses the terms “minutes of evidence” and “statement of the witness’
expected testimony.” In this case, the document filed by the prosecuting attorney as
intended compliance with this rule was captioned “minutes of testimony.” In this opinion
we use the terms interchangeably.
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incomplete, put defendant ‘on notice of the necessity of further investigation of

the witness’ probable testimony,’ reversal need not follow admission of matters

they do not disclose.” State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987) (citation

omitted). “We generally will not reverse on the ground of technical defects in

procedure [including defects relating to minutes of evidence] unless it appears in

some way to have prejudiced the complaining party or deprived him or her of full

opportunity to make defense to the charge presented in the indictment or

information.” State v. Braun, 495 N.W.2d 735, 741 (Iowa 1993).

        The day before trial, the State filed additional minutes of testimony adding

Fliss’s mother, Olmstead, as a testifying witness. Those minutes provided as

follows:

               This witness will testify in accordance with the police
        report/statement which is attached and made part of these minutes
        by this reference. This witness will testify to any statements or
        admissions by the Defendant. This witness will testify to any other
        facts or circumstances surrounding this case.

        No police reports or statements were attached to the additional minutes.

However, a police report was filed with the original minutes of testimony.

Olmstead was listed as a witness in that report, but no other reference to her was

made.      Washington claims the additional minutes were not a full and fair

disclosure. In response, the State argues Washington failed to preserve issue on

this matter and, even if a technical error had occurred in the minutes, no

prejudice resulted.

        The only statement defense counsel objected to at trial as “beyond the

scope” was “did [Fliss] say if she’d been in any type of physical altercation?” The

resulting answer was “No.”      No further objection on scope was made—only
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objections on hearsay or other grounds—as to any other testimony by Olmstead

regarding statements made by Fliss.       However, the trial transcript reflects a

bench conference occurred shortly after Olmstead took the stand.         Following

Olmstead’s testimony, the parties made a record outside the presence of the jury

where defense counsel specified her objection was to the entirety of Olmstead’s

testimony and, specifically, that Olmstead’s testimony concerning statements

made by Fliss were outside the scope of the minutes of testimony. In reaching

its ruling, the court stated:

              Well, the minutes for Ms. Olmstead is filed—for the record it
       was filed March 16th, yesterday. It’s a very brief minute of
       testimony but makes reference to the police reports and statements
       that are in the minutes of testimony, and so that is the reason I
       overruled the defendant’s objection made at the bench conference
       and allowed the witness to testify.

(Emphasis added.) We find error was preserved.           See Gacke v. Pork Xtra,

L.L.C., 684 N.W.2d 168, 181 (Iowa 2004) (“[O]nce a proper objection has been

urged and overruled, it is not required that repeated objections be made to

questions calling for the same type of evidence.” (citation omitted)).

       In the alternative, the State argues that, even if the minutes were not in

technical compliance, Washington was otherwise apprised of the evidence; thus,

no surprise or prejudice resulted.

       Here, the additional minutes of testimony filed by the State simply

indicated Olmstead would testify “in accordance with the police report/statement

which is attached and made a part of these minutes by reference.” No police

report was attached to the additional minutes, although a police report was filed

with the initial minutes of testimony.       In that report, the sole reference to
                                         6


Olmstead was to identify her as a witness. The report makes no reference to any

conversation held with Olmstead, the incidents Olmstead bore witness to, the

statements Olmstead heard, or any potential testimony Olmstead might provide.

In fact, the narrative provided in the police report makes no mention of Olmstead

at all.    Instead, the report contains descriptions, including an account of the

police interrogation of Washington, to which Olmstead clearly was not privy. It is

entirely unclear what portion of the report could have pertained to or was

intended to pertain to Olmstead.

          The State argues that, despite this “technical error,” there was no

prejudice because the report generally stated Fliss admitted “her eye was

swollen from being punched” and “Washington punched her in the face.” What

the report does not say, however, is that Olmstead was present at the time these

statements were made. See State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct. App.

1994) (noting the trial information is meant to “alert the defendant to the source

and nature of the testimony” (emphasis added)). Further, the report makes no

reference to the phone conversation that occurred between Olmstead and her

daughter. See State v. Walker, 281 N.W.2d 612, 614-15 (Iowa 1979) (finding

testimony was outside the scope of the minutes where the minutes indicated the

witness would testify to seeing the defendant with another individual near the

stolen items but the witness also testified to business records showing there was

no evidence of the sale of the stolen goods); State v. Gilleland, No. 08-0847,

2009 WL 2392054, at *2 (Iowa Ct. App. Aug. 6, 2009) (reversing where the

minutes of testimony said the witness would testify to his residence, that he was

at the residence when it caught fire, and “to any and all relevant facts herein,” but
                                          7


the witness also testified about a conversation had with the defendant two weeks

later where the defendant admitted guilt). The State argues the phone call was

known by defense counsel because Olmstead had called 911 following the call

with her daughter, and the recording of this 911 call was shared with defense

counsel. True though this may be, the 911 call was not entered into evidence;

thus, this court is unable to discern what, if any, meaningful disclosure this

provided to Washington and his counsel.         Similarly, the State points to the

officer’s body microphone recording of his conversations with Olmstead and

Fliss—again, this recording was not put in evidence and cannot be considered by

this court.

       The State next argues there was no surprise because defense counsel

conceded at trial that the State had disclosed Olmstead was being called to

testify as to the victim’s lack of injury when she left and presence of injury when

she returned. This, however, merely informed defense counsel that Olmstead

would testify as to her observations of Fliss’s physical appearance. It did not

communicate that Olmstead would testify about an otherwise undisclosed

telephone conversation or that, as part of those observations, Olmstead also

heard Fliss admit Washington had injured her.        See State v. Caldwell, 404

N.W.2d 186, 188 (Iowa Ct. App. 1987) (noting courts will find error where “the

minutes identified one general subject of testimony, but the witness testified

about an additional subject” (citations omitted)).

       Ultimately, the additional minutes were devoid of any factual detail. The

police report referenced and incorporated into the additional minutes equally

lacked any meaningful discussion of Olmstead’s potential testimony. Thus, the
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minutes failed “to alert the defendant generally to the source and nature of the

witness’ specific testimony.” State v. Lord, 341 N.W.2d 741, 743 (Iowa 1983)

(emphasis added). Both Washington and Fliss denied Washington had hit her.

Countering this rendition of events was the officer’s account and Olmstead’s

testimony that Fliss had admitted Washington hit her. In subsequent testimony,

the officer clarified he was not certain if this statement came directly from Fliss or

from Olmstead. This court cannot find Washington was not prejudiced by the

State’s failure to fully and fairly disclose the testimony Olmstead was to provide.

       IV.    Conclusion

       For the foregoing reasons, we reverse Washington’s conviction and

sentence and remand for new trial.

       REVERSED AND REMANDED.
