                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1265
                           Filed December 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALAN LEE HERGENRADER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Monona County, Patrick H. Tott,

Judge.



      Defendant appeals his conviction for operating while intoxicated.

AFFIRMED.



      Bryan R. Goodman of Goodman Law Firm, LLC, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

       Alan Hergenrader appeals his conviction and sentence for the crime of

operating while intoxicated, first offense.1 First, Hergenrader argues his booking

video should have been admitted in its entirety with sound, citing Iowa Rule of

Evidence 5.106. Second, Hergenrader argues the video, The Truth is in the Eyes,

should not have been admitted as a demonstrative exhibit because the State did

not lay a proper foundation and it was irrelevant and unfairly prejudicial. Since

defense counsel conceded the audio was not critical to Hergenrader’s defense, we

find the district court did not abuse its discretion by playing the entire booking video

without audio. In addition, we find the district court did not abuse its discretion by

admitting the demonstrative video.

    I. Background Facts and Proceedings

       On July 1, 2016, in the late afternoon, Sergeant Michael Kober with the Iowa

State Patrol pulled over a vehicle for speeding; Hergenrader was the driver.

Sergeant Kober testified he noticed some empty beer bottles on the floorboard

behind the driver’s seat and detected “a slight odor of alcohol coming from the

vehicle.”

       Sergeant Kober administered the horizontal gaze nystagmus (HGN) test

and found Hergenrader scored four out of six clues indicating intoxication.

Additionally, Sergeant Kober had Hergenrader perform the walk-and-turn and the

one-leg-stand field sobriety tests. Sergeant Kober determined Hergenrader failed


1
  Iowa Code section 321J.2(1)(b) (2016) provides, “A person commits the offense of
operating while intoxicated if the person operates a motor vehicle in this state . . . [w]hile
having an alcohol concentration of .08 or more.” A first offense is a serious misdemeanor.
Iowa Code § 321J.2(2)(a).
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both of those tests. Hergenrader was then transported to the county jail where he

provided a breath sample, which revealed his blood alcohol content was .094

percent.

      Hergenrader was charged with the offense of operating while intoxicated,

first offense. A jury trial was held from June 6 to 9, 2017. On July 21, 2017,

Hergenrader was convicted and sentenced to thirty days in jail, with twenty-eight

of those days suspended; ordered to complete Drinker Driving School; ordered to

pay fines plus surcharges; placed on a one-year probation; and ordered to receive

a substance abuse evaluation. Additionally, Hergenrader’s privilege to operate a

motor vehicle was suspended for 180 days. Hergenrader appeals.

   II. Standard of Review

       We review a district court’s ruling on the admissibility of evidence based on

Iowa Rule of Evidence 5.106 for an abuse of discretion. State v. Austin, 585

N.W.2d 241, 243 (Iowa 1998). “We find an abuse of discretion only when the party

claiming such shows that the court exercised the discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee,

573 N.W.2d 1, 5 (Iowa 1997).          Furthermore, “[a]dmission or exclusion of

demonstrative evidence rests largely within the trial court’s discretion; therefore,

we will not interfere unless the trial court has abused that discretion.” State v.

Thornton, 498 N.W.2d 670, 674 (Iowa 1993).

   III. Admissibility of the Booking Video

      On appeal, Hergenrader argues the district court should have admitted the

entire booking video with audio. He asserts the court “allowed the State to present

a very lopsided version of events through law enforcement testimony and
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statements” where only the defendant’s incriminating statements were played. At

the pretrial conference, defense counsel argued that under Iowa Rule of Evidence

5.106, Hergenrader “should be able to supplement the remaining portions of the

video to give a fair and accurate picture of what actually happened in the booking

room, rather than let the jury speculate.” The prosecutor stated that “requir[ing]

the State to play the whole video with the defendant’s statements which he made

not under oath, not subject to cross-examination, not with that same indicia of

reliability, would be unfair.” Hergenrader’s defense counsel responded:

      [I]f the State is concerned about the audio component, Your Honor
      can order that it be played and presented if it goes back to the jury
      with no audio available. But the more important part, and the part
      that I think we think is important, is the visual things that are
      happening on that tape, or that recording, to show his physical
      manifestations as to sitting down, standing up, walking, that kind of
      thing . . . .

Following this concession, the district court admitted the entire booking video,

which was approximately ninety minutes in duration, to be played without audio.

      Hergenrader’s issue presented on appeal goes beyond what he agreed to

at the pretrial conference. He may not argue on appeal that which he conceded

at pretrial. See State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997) (holding the

defendant had waived his objection to the admission of evidence when counsel

withdrew the objection at trial); State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981)

(finding error had been waived after defense counsel consented to the introduction

of evidence at trial and explaining a defendant “cannot both object and consent to

evidence if he [or she] expects to preserve error for appeal.”). Therefore, with

Hergenrader’s concession below, the district court did not abuse its discretion in

allowing the video to be played without audio.
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   IV. Admissibility of The Truth is in the Eyes

       Next, Hergenrader argues the video, The Truth is in the Eyes, depicting the

HGN test, should not have been played during trial. Prior to the trial, Hergenrader

filed a motion in limine, claiming “[t]here [was] no foundation for the use or

introduction of this video and there [was] no nexus between the video and this

case.” The court reviewed the video and allowed redacted portions to be admitted

but with no audio. The admitted portion of the video depicted two different people

partaking in an HGN test and was approximately two minutes in duration.

Hergenrader argues the video lacked proper foundation, it is irrelevant because it

“does not tend to make any consequential fact more or less probable,” and “its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” The State argues the admission

of the video was proper, relevant, and not prejudicial.

       Regarding proper foundation, “[d]emonstrative evidence is usually received

if it affords a reasonable inference on a point in issue.” Thornton, 498 N.W.2d at

674. A witness who authenticates demonstrative evidence, “need only know about

the facts represented or the scene or objects photographed, and once this

knowledge is shown he [or she] can say whether the [exhibit] correctly and

adequately portrays these facts.” State v. Sayles, 662 N.W.2d 1, 8 (Iowa 2003)

(quoting Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 890 (Iowa 1994)).

Before deciding to arrest Hergenrader, Sergeant Kober performed various field

sobriety tests, including the HGN test. To the jury, Sergeant Kober described each

of the tests in detail and what clues indicated whether a person was under the

influence of alcohol. With regard to the HGN test, Sergeant Kober first described
                                          6


the test and then the video was played while Sergeant Kober explained the

meaning of both smooth and jerky, or involuntary, eye movements. The sergeant

testified that the video was an accurate portrayal of how alcohol affects a person

by way of involuntary eye movement. Because the sergeant discussed how the

test was performed, explained the clues that indicate potential intoxication, and

noted the accuracy of the demonstration, we find proper foundation was laid for

the video. See id. (holding proper foundation was laid for a demonstrative slide

presentation because a witness “knew of the facts represented by the slide

presentation and . . . was able to positively state that the slides adequately

portrayed those facts.”).

       “The relevancy of demonstrative evidence is usually a question to be

determined by the proper exercise of the trial court’s discretion.” State v. Badgett,

167 N.W.2d 680, 688 (Iowa 1969). Evidence is considered relevant if “[i]t has any

tendency to make a fact more or less probable than it would be without the

evidence” and “[t]he fact is of consequence in determining the action.” Iowa R.

Evid. 5.401. At the pretrial conference, the district court found the video “would be

beneficial for demonstrative purposes only to allow the jury to see what nystagmus

looks like.” Since the district court could have reasonably found the video helpful

to establish the impairment or intoxication of Hergenrader, we find the district court

did not abuse its discretion in finding the video to be relevant. See Badgett, 167

N.W.2d at 688.

       Finally, Hergenrader argues even if the video had proper foundation and

was relevant, it should be inadmissible because it is unfairly prejudicial. “The court

may exclude relevant evidence if its probative value is substantially outweighed by
                                         7


a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Iowa R. Evid.

5.403. “Evidence is unfairly prejudicial if it, ‘[a]ppeals to the jury’s sympathies,

arouses its sense of horror, provokes its instinct to punish, or triggers other

mainsprings of human action that may cause the jury to base its decision on

something other than the established propositions in the case.’” State v. Price,

692 N.W.2d 1, 5 (Iowa 2005) (quoting State v. White, 668 N.W.2d 850, 854 (Iowa

2003)). Sergeant Kober did not compare the video to Hergenrader’s test results

but instead pointed out the eye movements—smooth or jerky—and how those

certain clues indicate possible intoxication. The district court limited the video by

only allowing portions that depicted human eye movements rather than

animations. No reference to the title of the video was made in the presence of the

jury. Additionally, the district court required the video to be played without audio

and the text in the video to be removed. The district court took various precautions

to mitigate any unfair prejudice from this video, and therefore, we find it did not

abuse its discretion.

   V. Conclusion

       We find the district court did not abuse its discretion in playing the entire

booking video without audio and admitting the demonstrative video.

       AFFIRMED.
