                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0999
                              Filed April 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIELLE ABANG-NTUEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



      Danielle Abang-Ntuen appeals her conviction of willful injury. AFFIRMED.




      John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




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


MULLINS, Judge.

       Danielle Abang-Ntuen appeals her conviction of willful injury following a joint

jury trial of her and her two codefendants. She claims the district court abused its

discretion in denying her repeated motions for a mistrial based on the behavior of

a codefendant during the trial.

I.     Background Facts and Proceedings

       On July 14, 2015, Danielle Abang-Ntuen, her sister, Beatrice Abang-Ntuen,

and their mother, Wonetah Einfeldt,1 went to the home of Mulika Vinson to resolve

a dispute between Danielle and Mulika. A physical altercation eventually ensued

between Danielle, Beatrice, and Wonetah against Mulika, but the parties dispute

the order of events and who initiated the exchange. Mulika was ultimately injured

as a result of the altercation.

       On August 5, Danielle, Beatrice, and Wonetah were all charged by trial

information with willful injury, a class “D” felony, in violation of Iowa Code sections

703.1, 703.2, and 708.4(2) (2015). On October 21, the State filed a motion to

consolidate the trials as the three were charged as codefendants and the charges

were based on the same incident. In response, Danielle filed a motion to sever

and a resistance to the motion to consolidate, arguing she would suffer prejudice

if tried with Beatrice and Wonetah.          Danielle contended Wonetah’s pretrial

statements and admissions implicated her and would thus violate Bruton.2


1
  Danielle and her sister share the same surname and were referred to by their first names
in both parties’ briefs. For clarity and consistency, we will refer to each codefendant by
her first name.
2
  See generally Bruton v. United States, 391 U.S. 123 (1968) (concluding right of
confrontation was violated when defendant was convicted after a joint trial in which a
codefendant’s confession was introduced in evidence but the codefendant was not subject
to cross-examination).
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Additionally, she argued Wonetah’s admissions during interrogation could

prejudice Danielle and violate her right to a fair trial as the jury could infer that

Danielle had the same or a similar intent as Wonetah. Danielle further argued that,

if Wonetah declined to testify, her right of confrontation, right to cross-examine

witnesses, and right to due process would be violated.

        On January 28, 2016, following a hearing, the court granted the State’s

motion to consolidate and denied Danielle’s motion to sever, ruling that Wonetah’s

pretrial statements and admissions concerned only her and her intent and did not,

expressly or by implication, identify or opine on Danielle or Beatrice or their intent,

thus distinguishing this case from Bruton.3 Danielle’s counsel renewed the motion

to sever twice, before and during the trial. The district court denied both motions,

ruling that severance was not warranted because the state of the case remained

the same.

        The three were tried together and Wonetah was disruptive during the

proceedings. Danielle’s counsel joined in several motions for a mistrial based

upon this behavior, arguing that Wonetah’s behavior prejudiced her and infringed

upon her right to a fair trial. The court denied each of these motions. The jury

found Danielle and Wonetah guilty of willful injury, as charged, while Beatrice was

found guilty of the lesser-included offense of simple assault.



3
   The court further denied Danielle’s motion to enlarge, addressing Danielle’s
confrontation issues, ruling that Wonetah’s statements did not inculpate either Danielle or
Beatrice. It further held that if the State relied on an aiding-and-abetting theory of liability,
Wonetah’s intent could be material with respect to the other two’s charges, whether tried
separately or together. However the State had not clarified its theory of liability at that
point. The court identified that the risk of Wonetah refusing to testify exists whether the
three were tried together or separately. The State later amended the trial information to
remove any language referring to aiding and abetting or joint criminal conduct.
                                            4


       As noted, Danielle appeals.

II.    Scope and Standards of Review

       This court reviews motions for mistrial for an abuse of discretion. 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. “[A] court is found to have abused

its discretion only when defendant shows prejudice which prevents him from

having a fair trial.” State v. Callender, 444 N.W.2d 768, 770 (Iowa Ct. App. 1989).

We will intervene only where the discretion has been clearly abused. Newell, 710

N.W.2d at 32.

III.   Analysis

       Because counsel made several motions for mistrial, we will discuss each

individually to determine if the court abused its discretion by denying each one.4

       A.      First Motion for Mistrial

       Danielle raised the first motion for mistrial on the second day of trial. At this

time, jury selection had already been conducted and the parties were giving their

opening statements. During the State’s opening statement, Wonetah said, “Lie.”

After this comment, the court warned her that “[i]f I hear another word, we’re going



4
  We address the claims of abuse of discretion on the motions for mistrial as the issues
on appeal. Counsel’s references during oral arguments to the motions for severance, the
weight of the evidence, and motion for new trial were raised in Danielle’s appellate brief;
but the focus of the brief was on why the motions for mistrial should have been granted.
No other issues were articulated beyond references in the facts section and in the scope
of review section. Additionally, we find that Danielle waived any claim regarding the
motions for severance in her brief, as she did not cite authority or claim the court abused
its discretion in denying the motions. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite
authority in support of an issue may be deemed waiver of that issue.”). Further, she
agreed with the court’s ruling and reasoning. Therefore, we do not address these issues.
                                          5


to take a recess. Okay?” The State then resumed its opening statement. At a

later point in the State’s opening, the following exchange occurred:

                [PROSECUTOR]: They did tell the officers that Ms. Vinson
       threw the first punch. They also told the officers that Ms. Vinson
       brandished a gun before the fight began. Defendant Wonetah
       Einfeldt told the officers, I’m telling you right now, I beat her ass.
                MS. EINFELDT: Sure did.
                [PROSECUTOR]: Jeremy Cooper is going to tell you Ms.
       Vinson did nothing to initiate that fight. Nicholas Hardcastle is going
       to tell you Ms. Vinson did nothing to initiate that fight. Jeremy Cooper
       is going to tell you he saw no gun. He heard nothing about a gun
       brandished by Ms. Vinson or anyone else. Nicholas Hardcastle is
       going to tell you there was no gun that he saw. He never heard
       anybody mention a gun.
                Defendant Wonetah Einfeldt, she did have some injuries. She
       had a scrape to her palm, and a scrape to her knee. The officers
       called EMTs to the police station to tend to her. They cleaned her
       knee and put a Band-Aid on it.
                MS. EINFELDT: No, they didn’t.

After this remark, the court took a recess and asked that the jury return to the jury

room. The court admonished Wonetah for her remarks. The admonishment

consisted of the following exchange:

                THE COURT: You may be seated. Okay. Ms. Einfeldt, I
       heard three exclamations from you during the state’s opening
       statement. I warned you once that we would be taking a recess if I
       heard anything else, and you didn’t stop. Now, ma’am, I’m going to
       ask you, are you able to control yourself during the rest of this trial?
       When an attorney is standing before the jury and making a
       statement, when an attorney is asking a witness questions, when a
       witness is answering those questions, you must be quiet. Can you
       do that, ma’am?
                MS. EINFELDT: Your Honor, I’m confused right here because
       I don’t understand. I didn’t understand how the Court can knowingly
       just lie. She knows she was 17 when she committed the crime. It’s
       a blatant lie.
                THE COURT: Ma’am, your attorney, you are represented by
       competent counsel.
                MS. EINFELDT: He’s not doing anything.
                THE COURT: Ma’am, there’s nothing—
                MS. EINFELDT: Forget it.
                THE COURT: Are you telling me you can’t control yourself?
                                   6


        MS. EINFELDT: I don’t know why I have to be here.
        THE COURT: You have to be here because you are accused
of a serious crime. While you’re here, you will abide by the rules.
Can you abide by the rules?
        MS. EINFELDT: Yeah. And she keeps calling me a savage.
She’s a savage. She’s a liar.
        THE COURT: Ma’am, I’m going to ask you if you can be quiet
during the rest of this trial. The only time you speak on the record is
when you’re on that witness stand, if you elect to take the stand. You
don’t have to. [Wonetah’s counsel] can talk to you about that, but
otherwise you be quiet.
        MS. EINFELDT: Yes, sir.
        THE COURT: And, ma’am, I’m not joking.
        MS. EINFELDT: I’m not joking either.
        THE COURT: I will tell when you can speak. Do you
understand that? You will speak when I tell you you can speak.
        MS. EINFELDT: Yes, sir.
        THE COURT: Now, if you don’t, what I’m going to do is I’m
going to ask you if you want to remain in this courtroom. If you
remain in this courtroom, I’m going to have you bound and gagged.
If you don’t want to remain in the courtroom, and your attorney
agrees, I will excuse you from this courtroom. I may find you in
contempt and order you to serve jail time for the contempt. Ma’am,
this is serious.
        MS. EINFELDT: It is.
        THE COURT: And what I’m telling you is serious. Now, can
you control yourself during the rest of this trial? Do you promise me
that?
        MS. EINFELDT: Yes, sir.
        THE COURT: I will do everything I can to make sure you get
a fair trial. [Wonetah’s counsel] will do everything he can to make
sure that you get a fair trial. But you are prejudicing your own right
to a fair trial by these exclamations. If you think that jury is more
likely to find you not guilty because of what you’re saying while [the
prosecutor] is speaking, you are mistaken, and you are seriously
mistaken, and you’re mistaken to the point where it may put you in
prison. Do you understand all of that?
        MS. EINFELDT: Yes, sir.
        THE COURT: Okay. Now, do you need a little bit of time to
collect yourself?
        MS. EINFELDT: Yes.
        THE COURT: Okay. We’re going to take a brief recess.
        [BEATRICE’S COUNSEL]: Your Honor, I think [Danielle’s
counsel] and I have some record we need to make before that
happens. I think I need to move at this time for a mistrial because
Ms. Einfeldt’s outburst will affect not only her, but her daughters, and
I believe her outbursts may have affected Beatrice’s case, that if
                                          7


       they’re judged together by Ms. Einfeldt’s bad behavior, that Beatrice
       is less likely to get a fair trial.
               THE COURT: I will assume that [Danielle’s counsel] is joining
       in that. I’m not going to declare a mistrial. I believe that what has
       happened up to this point has been relatively minor. She did make
       some exclamations. It was not overly prejudicial. I also think that
       this jury is going to be able to distinguish. They know who made
       these statements, I’ll put it that way. So I’m going to deny the motion
       for a mistrial at this point. But here’s what’s going to happen. If I
       have to declare a mistrial, I’m going to decide which of these
       defendants is going to finish this trial. Then we’ll reschedule the
       others. Okay?
               [BEATRICE’S COUNSEL]: Yes, Your Honor.
               [DANIELLE’S COUNSEL]: Your Honor, I would like to make
       sure the record is clear. I formally also am requesting a mistrial. I
       believe that my client’s rights to a fair trial in the United States and
       Iowa Constitutions have been violated.
               THE COURT: I understand.
               [DANIELLE’S COUNSEL]: I understand your ruling, but I
       would like to state that for the record.
               THE COURT: Okay. I understand that you joined in the
       motion, and I well understand the basis of the motion. And if this
       behavior continues, believe me, we will back and revisit that. But at
       this point I don’t believe the harm is irreparably done. Okay? Okay.

       On appellate review, the district court enjoys wide discretion in denying a

motion for mistrial because “it is in the best position to appraise the effect of any

alleged misconduct.” State v. Frei, 831 N.W.2d 70, 80 (Iowa 2013), overruled on

other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). Iowa

Rule of Criminal Procedure 2.27(4)(a) identifies several steps the court may

employ to ensure the decorum of the court:

             (1) Cite the defendant for contempt.
             (2) Take the defendant out of the courtroom until the
       defendant promises to behave properly.
             (3) Bind and gag the defendant, thereby keeping the
       defendant present.

Whether to employ the alternatives of this rule is a judgment call depending on the

circumstance of each case. State v. Webb, 516 N.W.2d 824, 830 (Iowa 1994).
                                           8


This rule gives trial courts discretion on whether and to what extent to use any of

the alternatives. State v. Edwards, 507 N.W.2d 393, 399 (Iowa, 1993).

       Upon a review of the transcript leading up to the time of the first motion for

mistrial, we find only a few remarks were made by Wonetah in front of the jury and

a warning was given by the court. Additionally, a recess was taken and the jury

was removed from the courtroom while the court admonished Wonetah. We do

not find the court’s assessment of outbursts up to this point as minor to be

unreasonable given the limited disruptions, and thus we do not find the court

abused its exercise of discretion in denying the motion for a mistrial.

       B.     Second Motion for Mistrial

       After the testimony of a police officer, Danielle’s counsel renewed her

previous motion for mistrial in conjunction with Beatrice’s counsel. Beatrice’s

attorney identified that Wonetah had her head down for much of the testimony,

had her eyes closed, and had loudly pulled tissues from a box and then stuffed

them back in the box. Danielle’s attorney explained that she had not seen all of

this behavior because of her line of sight but had observed some. The court again

denied the motion and remarked:

       Here’s my sense of it, though, and that is that by this point in the trial,
       the jury well understands that three separate defendants are being
       tried. There’s been substantial evidence about what each individual
       defendant’s participation or non participation in this altercation was.
       If Ms. Einfeldt’s behavior prejudices anyone, I believe it prejudices
       her. I don’t believe it unfairly prejudices either of the other two
       defendants. So your summary of the facts I accept. I believe it’s
       accurate. But I’m denying the motion for mistrial.

       A review of the transcript for the time preceding the second motion for

mistrial shows that after the first motion was denied, the trial proceeded and the
                                            9


State and defense counsel both gave their opening statements without

interruption.   The victim testified and, during cross-examination by Beatrice’s

counsel, Wonetah sighed, which the court reporter noted. Neither counsel nor the

court remarked on this. During the next witness’s testimony, Wonetah objected.

The witness had personally observed the altercation and testified on cross-

examination by Danielle’s attorney that it was “pretty obvious that the defendants

initiated the fight and that, you know, that’s what they were there to do. But—.” At

this point Wonetah said “objection.” The court responded by asking who made the

objection but made no further inquiry or comment about Wonetah’s remark.

Neither did any of the defense attorneys. No other interruptions are noted for the

remainder of the day.

       At the beginning of the next day of trial and before the jury reentered the

courtroom, the court noted:

       [W]e did have a rough patch during the state’s opening. That was
       on Monday. There were a couple of disruptions. They were not—in
       my view, they were distracting. They were not loud to the point of, in
       my view, irreparably poisoning the jury pool.
               Yesterday, quite honestly, I think we pretty much got through
       the day uneventfully, at least from . . . my perspective, except when
       Ms. Einfeldt objected to a question. That, again, I did not consider
       that to be so disruptive or so prejudicial that this jury cannot consider
       the evidence in this case.

After further discussion of other matters, the court again reminded Wonetah that

there should be no interruptions. There were no noted disruptions during the

testimony of the first witness called to the stand that day, but during the second

witness’s testimony, an officer who responded to the scene, Wonetah again made

an outburst, saying “[l]iar” after the officer testified that the victim’s injuries were on

the high end of what he saw in assault cases. The court responded to this by
                                           10


saying “ma’am.” No further response was made by the court or from any of the

attorneys. No further disruption occurred during this witness’s testimony.

       During the testimony of the third witness of that day, another officer who

responded to the scene, Wonetah remarked “I never said that” in response to

testimony about Wonetah’s statements to police during the day in question. No

response was made by the court or by any of the attorneys. On cross-examination

by Danielle’s attorney, the witness identified that when looking at a picture of

Danielle from that day, she saw a mosquito bite in response to questioning about

whether they observed any injuries on Danielle’s face. After the witness answered,

Wonetah said “[h]a ha ha” and slammed her hand on counsel table twice. The

court responded by shushing her.           Once cross-examination of the witness

concluded, the court released the jury for lunch.

       The verbal outbursts were isolated in nature and Wonetah stopped each

time after the court admonished her. We find the trial court did not draw attention

to every outburst Wonetah made and the court’s reasoning for denying the motion

that Wonetah’s behavior prejudices herself only is reasonable given that most of

the remarks she made were in reference to testimony about herself and her

actions. Regarding her physical actions of putting her head down, having her eyes

closed, and manipulating tissues in and out of its box, we find that “[t]he trial court

was in a better position to observe the matter complained of and its effect on the

jury.” Callender, 444 N.W.2d at 770. Based on the record before us, we find the

trial court’s denial of the first renewal of the motion for mistrial did not constitute an

abuse of discretion.

       C.      Third motion for mistrial
                                        11


      Danielle’s counsel made a final motion for mistrial, in conjunction with

Beatrice’s counsel, after closing arguments were completed and the jury began its

deliberations. The court again denied the motions for mistrial.

      A review of the transcript reveals that during the testimony of another

witness to the altercation, Wonetah made the comment “[s]ide by side” after

Danielle’s attorney asked the witness to review his deposition testimony. No

response was made by the court or by any of the attorneys. Wonetah then made

the comment “[n]o relation” when Beatrice’s attorney began his cross-examination,

as both the witness and the attorney shared the same surname. There was no

response by the court or the other attorneys. We find both of these comments to

be insignificant and conclude no response was required by the court. We note that

Wonetah made a more involved outburst during the testimony of a witness called

for an offer of proof, however this was made outside the presence of the jury.

      The transcript also reveals that, outside the presence of the jury, Wonetah

stated she wanted to testify and was questioned on the record by her counsel

regarding this decision. The court then admonished her that if and when she

testified, she would need to restrain her answers only to the questions asked by

counsel and that if she tried to testify to issues the court already decided were

inadmissible, she would possibly face contempt charges. The court asked her if

she could promise to only answer the questions asked, to which she affirmatively

responded.

      Further, during Danielle’s testimony and in front of the jury, Wonetah said

“[y]eah” after Danielle testified “[n]o, I think the video shows, excuse me, you

bitches want to jump me?” The Court did not respond to this remark and there is
                                         12


no further disruption noted during the remainder of Danielle’s testimony or

Beatrice’s testimony.      Additionally, during closing arguments by Wonetah’s

counsel, she corrected him on which daughter made a statement before the

altercation and then clapped when her counsel finished. We again find that these

interruptions are minor.

       During the State’s rebuttal, Wonetah did interrupt several times:

       [PROSECUTOR]: Here’s the apartment building where the
       defendants live, and here’s Perkins Park over here. Let’s see the
       most direct route.
               MS. EINFELDT: Right behind our house.
               THE COURT: Ma’am.
               MS. RITCHIE: To get to Perkins Park.
               MS. EINFELDT: Um-hum.
               ....
               [PROSECUTOR]: . . . .
               The recording shows you the exact extent of Danielle and
       Wonetah’s anger and hatred for Nikki Vinson, and none of it looks
       like fear. Danielle testified in court that she doesn’t get angry, and I
       asked her if Ms. Vinson was screaming and pleading for help. She
       said, no, she was saying bitch. Remember that? Well, let’s take a
       listen.
               MS. EINFELDT: Let’s listen.
       (Video played.)
               ....
               [PROSECUTOR]: . . . .
               Ms. Vinson told you she does not have a gun. Now they want
       to make a large deal out of her shooting a firearm—
               MS. EINFELDT: Yeah, we do.
               THE COURT: Ma’am, one more time, and you’re going to be
       out of the courtroom.

The transcript notes that Wonetah then left the courtroom voluntarily. After the

court released the jury to begin deliberations, the court made a record about

Wonetah’s departure. The defense attorneys renewed their motions for mistrial,

which were collectively denied.
                                         13


       As noted above, most of the disruptions by Wonetah were brief, one- or

two-word remarks. When she interrupted closing arguments, the court warned her

that if she continued she would be removed from the courtroom as allowed under

Iowa Rule of Criminal Procedure 2.27(4). Given that Wonetah voluntarily left, the

court did not need to take the step of removing her.

       A mistrial is a drastic measure and a review of the record reveals that the

trial court utilized different tactics throughout the trial to manage Wonetah’s

behavior in order to permit the trial to be completed, including ignoring minor

disruptions, admonishing her and, finally, warning her that if she continued, she

would be removed from the courtroom.

       The jury instructions also indicate that the jury was to judge each defendant

individually based solely upon each defendant’s individual participation in the

crime, what could and could not be considered evidence, and that any statement

made by Wonetah regarding her specific intent was not relevant to prove the

specific intent of Beatrice or Danielle. A jury is presumed to follow the instructions

of the court. State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). There is no

evidence indicating the jury did not follow the court’s instructions in this case.

Beatrice being found guilty of a lesser-included offense confirms the presumption

that the jury followed instructions and individually judged each defendant.

       As noted, the trial court was in a better position to observe the matters

complained of and any effect it might have had on the jury. Throughout the entire

trial, most of the disruptions were minor, and many of the protracted outbursts by

Wonetah, including those Danielle identified in her brief, were not in the presence
                                          14


of the jury. Based on the record, we find the court’s repeated denials of the motions

for mistrial did not constitute an abuse of discretion.

       AFFIRMED.
