                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0414
                               Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY MARK CORNELIOUS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

District Associate Judge.



      Cornelious appeals his conviction of domestic abuse causing bodily injury,

second offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds and

Rachel C. Regenold (until her withdrawal), Assistant Appellate Defenders, for

appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Katherine M.

Krickbaum (until her withdrawal), Assistant Attorneys General, for appellee.



      Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

      Gary Mark Cornelious was convicted of domestic abuse causing bodily

injury, second offense, on January 14, 2015, and was sentenced accordingly.

Cornelious has appealed.

   I. Factual Background

      Cornelious and Carol Sill began living together in September 2014. They

had an intimate relationship and shared expenses. After shopping for groceries,

Sill came home to the shared apartment on October 13, 2014. It appeared to Sill

that Cornelious had been drinking. The parties were sitting on the couch when

Sill mentioned she had been talking to a man in the parking lot. Cornelious

grabbed her wrists and began squeezing them. Cornelious told her to get out,

but when she tried to leave, he slammed the door and pushed her back onto the

couch. When she got up a second time, he again pushed her down on the

couch, locked the door, and sat on her. She tried to scream but Cornelious put

his hand over her mouth to muffle her screams. His other arm was around her

neck. Sill thought she was going to die and continued to cry and scream.

      Two neighbors, Brenda Gillespie, who lived across the hall, and Carey

Lindsey, the landlord, who lived below, heard the screams and came to the

apartment shared by Cornelious and Sill. Gillespie arrived at the apartment first

but found it locked. She asked Sill through the door if she was okay, and Sill

replied, “No.” Lindsey arrived shortly after obtaining a key, opened the door, and

found Cornelious straddling Sill on the couch. Lindsey ordered Cornelious off of

Sill, and he eventually complied. Lindsey held Cornelious and told Sill to get out
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and go to Gillespie’s apartment. The police were called. Cornelious insisted he

was going after Sill, and he and Lindsey got into a shoving match.

         Two Ames police officers arrived and found the apartment in disarray. Sill

was taken to the hospital where she was found to have suffered bruises on her

arms and neck, and a cut lip. She suffered neck and back pain for a week.

         The officers interviewed Sill and Cornelious and determined that probable

cause existed for charging Cornelious with domestic abuse assault causing

bodily injury.   A trial information was filed, enhancing the charge by a prior

offense.

         Cornelious filed a motion to suppress, alleging statements he made to the

officer were in violation of his Fifth Amendment rights. The motion was granted

as to statements made after the arrest. The statements made before the arrest

were held to have been made in the investigatory stage of the event. He also

filed a motion in limine attacking statements made by the officers that indicated

they had previous contact with Cornelious and comments about his demeanor at

the time of his arrest as being prejudicial and not relevant to the charges made.

The motion in limine was not ruled on but deferred until the time of trial in order

for the court to determine the context of the allegedly inadmissible statements.

Cornelious’s counsel was advised to renew the objection when the objectionable

testimony was offered. Cornelious has appealed, alleging it was error to overrule

his motion to suppress and to permit the testimony objected to in his motion in

limine. In addition, Cornelious has filed a pro se supplement to his counsel’s

brief.
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   II. Motion to Suppress

       A. Error Preservation

       Cornelious raised the issue of the admissibility of his statements to law

enforcement before his arrest in the motion to suppress. It is not necessary to

renew an objection at trial when a motion to suppress has been overruled as to

the same evidence. See State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).

Error has been preserved.

       B. Standard of Review

       Refusal of a trial court to suppress a statement alleged to have been

made in violation of a constitutional right is reviewed de novo. State v. Palmer,

791 N.W.2d 840, 844 (Iowa 2010). Deference is given to the trial court’s findings

but we are not bound by them. Id. An independent evaluation of the totality of

the circumstances, including both the suppression hearing and the testimony at

trial, is considered.   Id.    Statements made by a suspect in the custodial

interrogation are inadmissible unless there is an adequate recitation of a Miranda

warning and a valid waiver of those rights. Id. at 844-45.

       C. Discussion

       The record does not disclose that a Miranda warning was given to

Cornelious. The issue in this case is whether Cornelious was in custody when

the challenged statements were made. Four factors that are to be considered in

determining whether a suspect is in custody are: (1) language used to summon

the individual; (2) the purpose, place, and manner of the interrogation; (3) the

extent in which the individual is confronted with evidence of guilt; and (4) whether

he or she is free to leave. State v. Countryman, 572 N.W.2d 553, 558 (Iowa
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1997).      In-home interrogations are generally considered noncustodial for

purposes of requiring a Miranda warning. State v. Evans, 495 N.W.2d 760, 762

(Iowa 1993).

         Officer Clewell and Officer Thorpe responded to the 911 call.       Officer

Clewell arrived first and immediately knocked on Cornelious’s apartment door.

Cornelious opened the door, Officer Thayer arrived soon after, and a search of

Cornelious and the immediate vicinity was made for weapons. Cornelious would

not stand up to complete the weapons search, so Officer Thayer pulled him up in

order to complete the search. Cornelious sat back on the couch but wanted to

move around. For purposes of safety, Officer Thayer told him to stop trying to

move around or he would restrain him.

         Officer Clewell went to interview Sill, and Officer Thayer remained in

Cornelious’s apartment to interview him. The officer asked Cornelious what had

happened, and Cornelious’s answer was evasive and rambling. He eventually

denied there was an altercation, but when asked why there was an injured party

across the hall, Cornelious explained he had been straddling Sill on the couch,

kissing her, but she was not hurt. Cornelious offered no further explanation of

Sills’s injuries or the condition of the apartment. When Officer Clewell came back

after his interview with Sill, the officers determined probable cause existed for an

arrest, the arrest was made, and Cornelious was handcuffed.

         After the suppression hearing, the trial court determined Cornelious was

not in custody until the formal arrest was made. We concur. The officers did not

summon Cornelious to interrogate him about a crime. Instead, the officers had

been called to the site of the disturbance to end it and to investigate its cause.
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The purpose of the questions was to determine what had happened. There was

no evidence that Cornelious was confronted with evidence of his guilt as a part of

the questioning process. The questions were not coercive or confrontational but

were directed at determining what had happened. The questioning was done

quickly and in Cornelious’s home. If Cornelious had tried to leave, he probably

would have been restrained. He did not ask to leave, and he was not told he

could not leave. Not every minor restraint from the freedom of movement by

authorities requires a Miranda warning before questioning.         See Berkemer v.

McCarty, 468 U.S. 420, 435-36 (1984). A reasonable person in Cornelious’s

position would not have thought he was in custody or under arrest. Further, he

made no prejudicial admissions or statements, only denials.            Even if the

admission of his statements was in error, it was harmless error.

   III. Testimony Claimed to be Prejudicial and Not Relevant

      A. Error Preservation

      Cornelious challenged the admission of law-enforcement testimony as to

his demeanor and the officers’ prior contact with him by a motion in limine,

claiming it was not relevant and was prejudicial. In ruling on the motion, the court

indicated that the evidence may or may not be relevant, depending on the

circumstances in which it came in and advised Cornelious’s counsel , “[I]f you

think it is objectionable as it comes in, raise the issue by objection at trial and

then I will made the determination.” No objection was entered to the testimony

regarding Cornelious’s demeanor at the time of arrest. When a motion in limine

is filed requesting certain testimony be declared inadmissible and it is overruled,

the movant is generally required to renew the objection when the testimony is
                                        7

introduced at the trial in order to preserve error. State v. Tangie, 616 N.W.2d

564, 568 (Iowa 2000). An exception exists when the ruling is clear that the

testimony will not be permitted. Id. at 568-69. In this case, the court made it

clear further objection was required, but none was made.            Error was not

preserved as to the demeanor evidence.

      After each officer testified regarding past contact with Cornelious, a motion

for mistrial was lodged.   An immediate motion for mistrial after objectionable

evidence comes into the record preserves any error made.           Carter v. Wiese

Corp., 360 N.W.2d 122, 129 (Iowa Ct. App. 1982). Error has been preserved as

to testimony concerning law enforcement’s previous contact with Cornelious.

      B. Scope of Review

      A trial court’s denial of a motion for mistrial is reviewed for an abuse of

discretion. State v. Frei, 831 N.W.2d 70, 73-74 (Iowa 2013). Evidence of an

accused’s prior criminal activity is generally not relevant and therefore not

admissible.   Iowa R. Evid. 5.404(b).       Generally, an adequate safeguard is

created when the objectionable evidence is stricken from the record and the jury

admonished to disregard it. State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998).

An exception exists when the matter forbidden by the ruling is so prejudicial that

it could not be erased by the court’s admonition. Id.

      C. Discussion

      Officer Clewell testified that he recognized Cornelious as soon as he

opened the door. He also testified he had seen Cornelious intoxicated at a prior

time. A motion for mistrial was immediately lodged. Officer Thayer testified that

Cornelious    had   expressed   dissatisfaction   with   law   enforcement’s   prior
                                           8


investigation, which was conducted as the result of a report he had made. Again,

counsel moved for a mistrial. Counsel maintained that the officers’ statements

raised an insinuation of past criminal activity on his part.

       After denying the first motion for mistrial the court admonished the jury to

disregard Officer Clewell’s testimony as to any prior contact with Cornelious. He

summed up the admonishment by stating, “[S]o if you heard that testimony you

are to disregard it and treat it as if it were not given and is not in evidence.”

       Immediately after Thayer’s comments, the second motion for mistrial was

lodged, and it was also overruled by the court. In overruling the second motion

for mistrial, the court stated it did not consider the statement prejudicial.       It

appeared to refer to an investigation that Cornelious had requested.

       Neither officer directly referred to any prior criminal activity or accusation

against Cornelious.     In the first instance, the context of seeing Cornelious

intoxicated was not included in the officer’s statement, and there was no

suggestion made of why Officer Clewell knew him. The prior contact could well

have been purely social. It was not so prejudicial as to require anything more

than the admonishment made. As the trial court noted, the second reference to

prior contact appears to relate to circumstances in which Cornelious sought the

assistance of law enforcement.        No prejudice was created by the comment.

Furthermore, when the evidence of guilt is strong, as it is in this case, that factor

may be taken into consideration when considering the prejudicial effect of an

isolated incident. See State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976).
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   IV. Cornelious’s Pro Se Brief

         Cornelious filed a pro se brief that includes the words, “ineffective

assistance of counsel” and “sufficient evidence” and “not given fair chance to

give testimony.” No authorities are cited, and it is not possible to determine with

any certainty what issue or issues he is attempting to raise. To the extent he is

attempting to raise an ineffective-assistance-of-counsel claim, the record is not

adequate to resolve the matter, and accordingly, it is preserved for a possible

postconviction-relief proceeding. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006).

         AFFIRMED.
