                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1790
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYJUAN L. TUCKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      Tyjuan Tucker appeals from his convictions and sentences for three

offenses: assault causing bodily injury, assault on a peace officer, and assault on

a health care provider after a jury returned guilty verdicts. AFFIRMED.



      Nicholas Einwalter, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, John P. Sarcone, County Attorney, and Shannon Archer, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       Tyjuan Tucker appeals from his convictions and sentences for three

offenses: assault causing bodily injury, assault on a peace officer, and assault on

a health care provider after a jury trial.

       I. Factual and Procedural Background

       On July 11, 2013, a series of incidents occurred ultimately leading to three

criminal charges against Tucker.         The State and Tucker provided contrary

accounts of the events.

       The State’s case in chief included six eye-witnesses to the events.

According to the State’s witnesses, at approximately 11:00 in the morning in

question, Tucker was a passenger in a car driven by Juli Firestine. The car

pulled over against the curb. Detective Yanira Scarlett of the Des Moines Police

Department passed by the car and observed a black male inside who appeared

to be punching something or someone. She turned around to investigate.

       She pulled up in front of the car when she noticed Firestine standing

outside the car, visibly shaken. Tucker appeared from behind the car. He had

been in the back seat of the car, broken the back windshield, and climbed out

through the broken window. He began to approach Scarlett, who was not in

uniform. Scarlett identified herself as a police officer and ordered Tucker to stop

his approach. Tucker continued forward while Scarlett backed away, repeating

her identification and demanding that Tucker stop his advance. Tucker came

within arm’s length of Scarlett, and he punched at her. The punch grazed the

side of Scarlett’s face.    She drew her gun and fired one shot into Tucker’s

abdomen.
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        An ambulance arrived to take Tucker to the hospital. While en route to the

hospital in the back of the ambulance, Tucker punched his attending medic in the

face.

        Based on the events of July 11, the State charged Tucker with three

offenses: assault causing bodily injury, assault on a peace officer, and assault on

a health care provider. The first assault—that against Firestine—was charged as

a violation of Iowa Code section 708.2(2) (2013).1 The latter two assaults—those

against Scarlett and the medic—were charged as violations of Iowa Code section

708.3A(4).2

        Trial commenced on September 25, 2013. Tucker testified in his own

defense. In his account of events, he was not a passenger in Firestine’s car. He

had been walking along the road that morning while out searching for a second

job. He recognized Firestine’s car as it passed him. He watched the car pull

over on the side of the road and went towards the car to see what was going on.

He testified that Scarlett suddenly appeared on the scene and shot him without

provocation.


1
  “A person who commits an assault, as defined in section 708.1, and who causes bodily
injury or mental illness, is guilty of a serious misdemeanor.” Iowa Code § 708.2(2).
Iowa Code section 708.1(2) provides:
                   2. A person commits an assault when, without justification, the
         person does any of the following:
                   a. Any act which is intended to cause pain or injury to, or which is
         intended to result in physical contact which will be insulting or offensive to
         another, coupled with the apparent ability to execute the act.
                   b. Any act which is intended to place another in fear of immediate
         physical contact which will be painful, injurious, insulting, or offensive,
         coupled with the apparent ability to execute the act.
2
   “Any other assault, as defined in section 708.1, committed against a peace
officer . . . [or] health care provider . . . by a person who knows that the person against
whom the assault is committed is a peace officer . . . [or] health care provider . . . is a
serious misdemeanor.” Iowa Code § 708.3A(4).
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       After Tucker concluded his testimony and rested his case, the State called

Sergeant Daniel Blom as a rebuttal witness. Blom was a police officer working in

the internal affairs department who took phone calls from the public about the

actions of officers. On August 7, 2013, Blom received a phone call from a man

who identified himself as Tyjuan Tucker. Blom recorded the call. During the call,

Blom listened to the caller explain that he was upset by the media’s description of

the incident and that he wanted to give his side of the story. He went on tell

Blom his own version of the events of that day, a narrative that included several

specific details about the incidents.

       The caller’s description of the details of the incident in the car and on the

side of the road contradicted Tucker’s trial testimony. Tucker objected to the

admission of the recorded conversation both formally through counsel and by his

own personal statements in the jury’s presence. Tucker’s objection included his

claims he had not called Blom and the caller on the recording was not him. The

district court listened to the audio recording with defense counsel, Tucker, and

the prosecutor outside the presence of the jury. The court overruled Tucker’s

objection, and the recording was admitted into evidence and played for the jury.

The district court issued a jury instruction to guide the jury in its use of the

admissions on the phone call recording as evidence.

       The jury convicted Tucker on all three charges. Tucker appeals, claiming

the telephone call should have been ruled inadmissible. He further claims the

jury instruction regarding out-of-court admissions was given in error.
                                           5


       II. Standard and Scope of Review

       We review evidentiary rulings for an abuse of discretion, which occurs

when a court exercises its discretion on grounds or for reasons clearly untenable

or to an extent clearly unreasonable. See State v. Helmers, 753 N.W.2d 565,

567 (Iowa 2008). We review challenges to jury instructions for correction of

errors at law. See State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013).

       III. Discussion

       Tucker asserts the district court abused its discretion in admitting the

recording of and testimony regarding the telephone call Blom received because

the State failed to lay a sufficient foundation to establish the identity of the caller.

Authentication of evidence is a condition precedent to its admissibility, and that

requirement is satisfied “by evidence sufficient to support a finding that the matter

in question is what its proponent claims.” Iowa R. Evid. 5.901.

       The advisory committee’s note to the identical federal rule states the

“mere assertion of his identity by a person . . . is not sufficient evidence of the

authenticity of the conversation[;3] . . . additional evidence of his identity is

required. The additional evidence need not fall in any set pattern. Thus the

content of his statements . . . may furnish the necessary foundation.” Fed. R.

Evid. 901 advisory committee’s note (emphasis added).

       As the advisory committee note suggests, when circumstantial evidence of

authenticity is strong enough to establish a sufficient foundation, the proffered

3
  Though Iowa courts have not recently considered self-identifying callers, there is case
law to confirm the advisory committee’s note. See Barber v. City Drug Store, 155 N.W.
992, 994 (Iowa 1916) (holding a “naked statement that the talker is the named person,
where the witness knows neither the man nor his voice” is not a sufficient basis to
authenticate it).
                                         6

evidence may be admitted. See, e.g., State v. Holderness, 293 N.W.2d 226,

233–34 (Iowa 1980) (citing United States v. Stearns, 550 F.2d 1167, 1171 (9th

Cir. 1977)) (finding photographic evidence supported by strong circumstantial

evidence admissible).

      In this case, the circumstantial evidence bearing upon the identity of the

caller indicates that it was indeed Tucker who called Blom. The caller relayed

detailed information about the incident, including how the incident began, how he

broke out and exited through the rear window of the car, and the nature of the

medical care he received while in the hospital. The caller’s intimate knowledge

of the events taken alongside his self-identification constitutes substantial

circumstantial evidence supporting a finding that the recording of the call was

what the State claimed it to be: prior out-of-court admissions by Tucker. The

authentication requirement of our rule of evidence was satisfied.

      Tucker was adamant at trial that he was not the man speaking on the

phone in the recording, and his counsel made clear in cross-examination of Blom

that the identity of the caller could not be definitively shown by hard evidence. It

was then the jury’s role to determine whether Tucker’s claim was credible.

“When the district court has determined that the State has established a sufficient

foundation for the admission of the . . . evidence, speculation to the contrary

affects the weight and not the admissibility of the evidence.” State v. Biddle, 652

N.W.2d 191, 196–97 (Iowa 2002) (emphasis added) (citing State v. Orozco, 290

N.W.2d 6,10 (Iowa 1980)).

      The district court’s admission of the telephone call was based on a

showing of circumstantial evidence sufficient to “support a finding that the
                                              7


[telephone call] in question is what its proponent claims.” Iowa R. Evid. 5.901(a).

The court therefore did not abuse its discretion in admitting the evidence.

          Tucker next claims that the district court’s instruction to the jury regarding

out-of-court admissions and his credibility4 was given improperly and “begged the

jury to make unfair inferences.” We will only find error in jury instructions if they

fail to correctly state the law or are not supported by substantial evidence. See

State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010).

          The instruction may have been improper if the telephone call had been

erroneously admitted into evidence; however, having concluded the call was

admissible, we can identify no error in the instruction. Tucker does not claim that

the instruction incorrectly states the law or is not supported by substantial

evidence. Instead, he claims, “After reviewing that instruction, a reasonable juror

could have been misled on how to give weight to . . . inconsistencies [in the

alleged prior admissions].”

          We do not agree the instruction is misleading. The instruction is taken

verbatim from a model instruction used to guide the jury in its credibility

determinations. It makes explicit that the jury could have disregarded the phone

call entirely if it believed Tucker’s claim that he never spoke with Blom. It gives


4
    Jury instruction 12A stated:
                   Evidence has been offered to show that the defendant made
          statements at an earlier time and place.
                   If you find any of the statements were made, then you may
          consider them as part of the evidence, just as if they had been made at
          this trial.
                   You may also use these statements to help you decide if you
          believe the defendant. You may disregard all or any part of the
          defendant’s testimony given at trial, but you are not required to do so. Do
          not disregard the defendant’s testimony if other evidence you believe
          supports it or you believe it for any other reason.
                                             8


the jury a fair opportunity to give credit to Tucker’s recounting of the facts. The

district court did not err in its instructions to the jury.

       Because the district court’s admission of the phone call was a proper

exercise of its discretion and the jury instructions were also proper, we affirm.

       AFFIRMED.
