                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1914
                                Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MALIEK TODD-HARRIS,
     Defendant-Appellant.
________________________________________________________________


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

Stigler, Judge.



       Maliek Todd-Harris appeals his conviction for second-degree burglary.

AFFIRMED.



       Mark C. Smith, State Appellate Defender, (until his withdrawal) and Maria

Ruhtenberg, Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



       Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.

       A jury found Maliek Todd-Harris guilty on one count of second-degree

burglary. He challenges his conviction on direct appeal, claiming the district court

abused its discretion by denying his motion for mistrial.

       Todd-Harris moved for mistrial on the second afternoon of trial after noticing

one of the jurors “dozing off.” After excusing the rest of the jury at the end of the

day, the court informed the juror that there was “some concern as to whether you’re

tired” and that he was perceived to have “nodded off once or twice.” The juror

admitted that he could “get a little drowsy” but did not admit that he had “ever really

[fallen] asleep.” After reminding the juror that his full attention was required during

trial, the court told him to request a break to refresh if he felt drowsy.

       The next day, defense counsel renewed the motion for mistrial, alleging the

juror “repeatedly dozed off, took a nap.” Counsel alleged that after the jury

attendant noticed the juror sleeping and gave him a drink of water, the juror

“continued to nod off and show no interest in this trial.” The court again denied the

motion, explaining that it had directed the court attendant to give the juror water

after noting the juror’s difficulty staying awake. It denied the motion a third time

after counsel renewed it at the close of evidence.

       We review a denial of a motion for a new trial based upon juror misconduct

for an abuse of discretion. State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).

A mistrial is appropriate if the jury cannot reach an impartial verdict. See State v.

Newell, 710 N.W.2d 6, 32 (Iowa 2006). The question is whether the court was

clearly unreasonable in concluding the jury could reach an impartial verdict. See

id.
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       We are unable to find the district court abused its discretion on the record

before us. The juror admitted to becoming drowsy during some portions of the trial

but did not agree that he had fallen asleep. See State v. Cuevas, 281 N.W.2d 627,

632 (Iowa 1979) (finding defendant failed to establish misconduct of two jurors who

appeared to be sleeping where one juror denied sleeping, the other was not called,

and the bailiff did not observe any jurors sleeping); State v. Goldensoph, No. 17-

0479, 2018 WL 4360893, at *3 (Iowa Ct. App. Sept. 12, 2018) (finding no abuse of

discretion in district court’s denial of motion for mistrial where jurors denied falling

asleep). The court could observe the juror firsthand and determine the effect his

drowsiness had on his ability to render a verdict. See State v. Hunt, 801 N.W.2d

366, 373 (Iowa Ct. App. 2011) (noting that the trial court has broad discretion in

ruling on a motion for mistrial because it is in a better position “to gauge the effect

of the matter on the jury” (citation omitted)). The court acted reasonably by

informing the juror of the need to pay careful attention during trial, asking him to

request a break when necessary, and sending water to the juror when he exhibited

signs of drowsiness.

       On appeal, Todd-Harris asserts that the court “should be required to

conduct an investigation into how much the juror had missed.” However, he never

requested such an investigation below.           Accordingly, Todd-Harris failed to

preserve error for our review. See State v. Dewitt, 811 N.W.2d 460, 467 (Iowa

2012) (“We do not review issues that have not been raised or decided by the district

court.”).

       We affirm Todd-Harris’s conviction for second-degree burglary.

       AFFIRMED.
