                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0898
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN LEE STOCKBAUER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      A defendant appeals his convictions for operating while intoxicated and

possession of methamphetamine. AFFIRMED.



      Thomas A. Hurd of Glazebrook & Hurd, L.L.P., Des Moines, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                            2


TABOR, Judge.

       A jury found Ryan Stockbauer guilty of operating while intoxicated (OWI)

and possession of a controlled substance. On appeal, Stockbauer contends his

trial counsel was ineffective for failing to object to alleged prosecutorial error or

misconduct in the form of (1) voir dire questions, (2) opening and closing

statements, and (3) photographic exhibits—all intended to “inflame the passions”

of the jurors. Because the record is not adequate to decide whether counsel

followed a reasonable strategy in not objecting, we affirm the convictions but

preserve Stockbauer’s ineffective-assistance claims for possible postconviction-

relief proceedings.

       I. Facts and Prior Proceedings

       In the early morning hours of August 3, 2016, Des Moines police

investigated the crash of a pickup truck into a tree at a T intersection. When Officer

Lucas Kramer arrived, he saw Ryan Stockbauer crawling out of the driver-side

window. Two other passengers suffered injuries requiring attention at the hospital.

Officer Kramer testified the heavy front-end damage to the truck was “consistent

with a high speed of travel.” In his brief conversation with Stockbauer, the officer

detected signs of intoxication, including unsteady balance, the smell of alcoholic

beverages, and bloodshot watery eyes.1 The officer asked how much Stockbauer

had to drink, and Stockbauer answered, “I’m alright.” The officer repeated the

question, and Stockbauer replied, “A beer or something.”




1
 At the scene, the officer did not realize Stockbauer had one prosthetic eye but testified
at trial that Stockbauer’s natural eye was bloodshot and watery.
                                         3


       Stockbauer told a second officer, Benjamin Ihde, the truck had bad brakes.

During their conversation, Stockbauer denied consuming alcohol, but Officer Ihde

noticed Stockbauer had slurred speech and was “swaying in his stance.” The

officer conducted the horizontal gaze nystagmus (HGN) field sobriety test and

observed two out of six indicators of intoxication.2        Stockbauer refused a

preliminary breath test. The officer did not perform any additional field sobriety

tests because Stockbauer began complaining of injuries. Officer Ihde transported

Stockbauer to the hospital where a nurse discovered a small baggie containing

methamphetamine concealed in the waistband of Stockbauer’s underwear. The

officer then read Stockbauer the implied consent advisory, and Stockbauer refused

to submit to chemical testing.

       The State charged Stockbauer with possession of a controlled substance

and OWI. The case proceeded to a jury trial. Stockbauer points to several actions

by the State during trial that he now deems objectionable. First, the assistant

county attorney probed potential jurors about their “personal experience, either

yourself or a loved one,” with controlled substances. In response, several potential

jurors discussed the devastating effect methamphetamine has had on their lives

and families. Second, during the State’s opening statement, the assistant county

attorney spent time describing the passengers’ injuries, saying the female

passenger appeared to be “in dire straits” before she was “rushed” to the hospital.

Third, the State offered sixteen photographs of the crash scene, some showing the

truck’s deployed airbags and blood-stained seats. Fourth, in closing argument, the


2
 The officer testified field-sobriety training manuals do not address whether the HGN
should be administered differently for a person with only one eye.
                                              4


assistant county attorney returned to a photographic exhibit depicting the crash

scene, telling the jurors:

       There’s the house.       There’s the tree. This is a residential
       neighborhood that this defendant ended up crashing in. It’s at night.
       People are at home. Kids are in bed. Adults are in bed. Otherwise
       good citizens who are sleeping before they go to work in the morning
       or resting and minding their own business.

The jury found Stockbauer guilty on both counts. He now appeals, contending his

trial attorney was ineffective in not lodging objections to the prosecutor’s attempts

to arouse the passions of the jurors.3

       II. Analysis

       Stockbauer complains his attorney should have objected to several

instances of prosecutorial error or misconduct.4 Assuming without deciding the

prosecutor’s actions—either separately or cumulatively—could be viewed as error

or misconduct, we believe Stockbauer’s complaints would be better settled through

postconviction relief (PCR).5 We ordinarily reserve ineffective-assistance claims

for PCR proceedings so the parties may develop the record.                    See State v.




3
  We review ineffective-assistance-of-counsel claims de novo. See State v. Henderson,
908 N.W.2d 868, 874 (Iowa 2018). To prevail, Stockbauer must prove by a preponderance
of the evidence that counsel breached an essential duty resulting in actual prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
4
  Our supreme court recently drew a distinction between misconduct and less egregious
missteps by a prosecutor. State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016).
Prosecutorial misconduct means an intentional violation of “a clear and unambiguous
obligation or standard imposed by law, applicable rule or professional conduct,” as well as
reckless disregard of a duty to comply with an obligation or standard. Id. (citation omitted).
Prosecutorial error covers instances of “poor judgment,” “mistake,” and “excusable human
error, despite the use of reasonable care.” Id. (citation omitted).
5
  The State argues Stockbauer cannot show Strickland prejudice because the evidence of
his guilt was overwhelming. While the State offered substantial evidence Stockbauer was
driving the truck while under the influence of alcohol or drugs, with abbreviated field
sobriety testing and no chemical testing, we cannot find the evidence was so strong as to
preclude a finding of prejudice.
                                         5

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). We will resolve the claims on direct

appeal only when the record is adequate. Id.

       Here Stockbauer’s trial counsel should be given the chance to explain the

failure to object to the prosecutor’s voir dire questions, the opening statement, the

proffer of multiple accident-scene photographs, and the closing arguments.

“There are potential strategic considerations in not lodging an objection, such as a

desire to avoid drawing the jury’s attention to a particular remark or line of

questioning.” See State v. Houston, No. 16-2155, 2018 WL 1099085, at *5 (Iowa

Ct. App. Feb. 21, 2018). Because we find the record inadequate to address

Stockbauer’s claims, we preserve them for possible PCR proceedings. See id.

       AFFIRMED.
