                    IN THE COURT OF APPEALS OF IOWA

                                 No. 18-1060
                             Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARKUS EARL HARDING,
     Defendant-Appellant.
________________________________________________________________


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

Fangman, Judge.



      Markus Harding appeals from his convictions of first-degree burglary,

domestic abuse assault while using or displaying a dangerous weapon, false

imprisonment, and fourth-degree theft. AFFIRMED.



      Rees Conrad Douglas, Sioux City, for appellant.

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

General, for appellee.



      Considered by Bower, C.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

          Markus Harding appeals from his convictions of first-degree burglary,

domestic abuse assault while using or displaying a dangerous weapon, false

imprisonment, and fourth-degree theft. Harding contends the district court erred

in applying the “forfeiture by wrongdoing” exception to the Confrontation Clause to

allow admission of hearsay statements made by the victim. Upon our review, we

affirm.

I.        Background Facts and Proceedings

          In December 2017, Harding was arrested following an incident involving

K.J., during which it was alleged he broke into her home, assaulted her, held her

captive, and accompanied her to fulfill his demand that she withdraw money from

her bank account to give to him. Over the course of several months while Harding

was in jail awaiting trial, Waterloo police learned through recorded jail calls that

Harding had, directly and through third parties, made contact with K.J. 1 and

threatened her not to come to court.

          The State filed a notice of intent to rely on forfeiture by wrongdoing, and an

evidentiary hearing was held in March 2018. The State presented the court with

recordings of jail phone calls. On February 13, while another inmate was the

middle man for a conversation between Harding and K.J., Harding repeatedly

stated from the background, “Don’t come to court at all,” “Don’t come”; on February

14, Harding told K.J., “I suggest you do move and not let no[body] know your

address,” “That way they can’t serve you to come to court, so if they can’t serve


1Following a separate hearing, the court concluded Harding’s contact with K.J.
was in violation of a no-contact order.
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you, you ain’t gotta go to court”; on February 18, another inmate and K.J. discussed

whether the charges would be dropped if K.J. did not testify and that Harding would

be out of jail by the weekend; on February 19—the day before trial was originally

scheduled to start2—another inmate told K.J. that “he said to stay in the crib tonight

. . . and he going to call you tomorrow when he get out”; and on February 20,

another inmate told K.J. there had been a continuance and “he said stay out of

Dodge.”

       Waterloo police officer and domestic assault response investigator Stacy

Hesse testified she recognized K.J.’s voice on the calls, stating she had talked to

K.J. “either by phone or in person . . . three to four times since December” 2017.

Hesse testified she recognized Harding’s voice because she had listened to

“hundreds” of his calls “from the end of December through today.”              Hesse

explained that during calls, in addition to threatening K.J., Harding “order[ed]

people to make contact” with K.J. and retaliate against her, “instruct[ed] those

people to pass on messages” to K.J., and offered money for affidavits. Hesse

stated that K.J. was “unwilling” to provide her location to police because she “was

tired of getting threatened.” Hesse testified a subpoena was issued for K.J. on

February 21, but police had been unable to locate her. Police believed K.J. had

changed residences, and they did not “know where she live[d].”

       Upon consideration of the parties’ arguments, the district court concluded

that “the forfeiture by wrongdoing has been proved and that the issue of

confrontation has been waived.” Specifically, the court stated:


2Trial was continued due to “because [K.J.] had reported that she had moved out
of state.”
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               To suggest that Mr. Harding only did a little bit of wrongdoing
       so he keeps his confrontation rights doesn’t sit with this court.
       There’s no little bit of wrongdoing. He’s contacted her. He’s
       threatened her. He’s told her not to come repeatedly to court. He’s
       talked to her about moving out of town. And so it’s clear that his goal
       in this matter was for her not to testify.

The court also acknowledged Harding’s threats to K.J. through third parties,

finding, “Clearly the threats are to get [K.J.] to do what he wants her to do”; “So

there would be no surprise after doing—giving those threats, telling people to beat

her up, telling people to flatten her tires, telling people to throw a brick through the

window that when he says ‘don’t show up in court’ she takes that seriously.” And

with regard to the efforts taken to serve K.J., the court found:

              The fact that there has been a subpoena out for [K.J.] since
       February 21, 2018, in which both the Black Hawk County Sheriff’s
       Department as well as the Waterloo Police Department have been
       looking for her and that law enforcement has been unable to find her
       in over a month’s time is significant to the Court. It’s not as if nobody
       is looking or a subpoena wasn’t issued or it was only issued last
       week.
              She no longer appears to reside at the residence. And it’s
       been over a month, and law enforcement is not able to locate her,
       which is consistent with her conversation with Mr. Harding that she
       was intending to move out of the state so she would not have to come
       to court to testify as he directed.

       The case proceeded to trial, during which K.J.’s hearsay statements about

Harding’s acts were admitted into evidence. The jury found Harding guilty on all

counts. On appeal, Harding contends “[t]he court erred in finding forfeiture by

wrongdoing” and “[b]ut for the finding of forfeiture by wrongdoing, most of K.J.’s

statements during the trial would have been deemed testimonial requiring

protection of the Sixth Amendment’s Confrontation Clause.”
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II.      Forfeiture by Wrongdoing

         “When a court finds that a defendant has procured a witness’s unavailability,

the defendant is precluded from asserting his constitutional right to confront the

witnesses against him as a basis to prevent the admission of prior statements

given by the witness. Hearsay objections are also forfeited.” State v. Hallum, 606

N.W.2d 351, 357 (Iowa 2000); accord State v. Campbell, No. 10-0117, 2013 WL

4011071, at *5 (Iowa Ct. App. Aug. 7, 2013); see also Iowa R. Evid. 5.804(a)(5)

(setting forth exceptions to the rule against hearsay when the declarant is

unavailable as a witness). The determination of whether Harding procured K.J.’s

unavailability at trial must be made in an evidentiary hearing in the absence of the

jury, which took place before the presentation of evidence here. See Hallum, 606

N.W.2d at 355–56. At the hearing, the court received evidence that Harding

communicated with K.J., directly and through third parties, on recorded jail phone

calls.   He instructed her to stay home to avoid being subpoenaed, change

residences, and not to come to court. The court heard that despite K.J. being

subpoenaed for over one month, police had been unable to locate her.

         Upon our de novo review,3 “[w]e agree with the district court that the

statements on the recording[s] demonstrate [Harding] intended to prevent [K.J.]

from testifying.” See Campbell, 2013 WL 4011071, at *6 (“The comments include

Campbell instructing A.S. to flee to a friend’s house to avoid being subpoenaed,

telling her she would be arrested and jailed if she did not flee, and instructing her

that she should not testify and that if she was found in contempt of court that was


3 “We review constitutional claims, including Confrontation Clause claims, de
novo.” State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014).
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nothing to worry about. He tells her to tell prosecutors she didn’t want anything to

do with the case. He tells her she should not have spoken with police. In the end,

A.S. was served with a subpoena but did not appear in court. Clearly Campbell

intended for her not to testify.”); see also State v. Gordon, No. 15-1841, 2016 WL

6636792, at *2 (Iowa Ct. App. Nov. 9, 2016) (“While Gordon asserts there were no

threats, promises, or instructions, the male caller told S.T. ‘the best way is not to

come’ and told her to ‘call the county and tell them you’re moving.’ The male caller

also related to S.T. that other inmates had charges dropped when the victim

refused to testify and responded approvingly when S.T. stated she did not want to

testify. When viewed in the light most favorable to the State, we find the evidence

sufficient to support the district court’s finding Gordon intended to prevent the

witness from testifying.”).

       In reaching this conclusion, we have considered the fact that Harding spoke

to K.J. on February 22 and said, “Why don’t you just come to court.”4 But as the

district court observed, “by that time, Mr. Harding has been charged with violating

the no contact order. He knows that he’s been charged with violating the no

contact order because he speaks about it during the conversation with [his brother

on that day].” In that context, Harding’s self-serving and isolated comment to K.J.

on February 22 bolsters our conclusion that he intended K.J. not to appear in court.


4 The conversation continued with K.J. responding, “If they don’t subpoena me, I
ain’t coming to court,” to which Harding said, “I don’t know who this ‘I’ is that you’re
talking to,” and K.J. corrected herself by stating, “She ain’t coming to court. She
already gone.” As the district court noted, “It’s clear he’s trying to hide the
conversation as if the law enforcement won’t realize when he switches mid-
statement from ‘you’ to ‘she’ that he was talking to [K.J.]” These comments evince
that Harding knew that police were listening to his conversations, all the more
reason to change his tune that K.J. should appear for court.
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In sum, because Harding procured K.J.’s absence at trial, he forfeited hearsay

objections based on her statements to other witnesses. See Hallum, 606 N.W.2d

at 357. We affirm the court’s ruling.

       AFFIRMED.
