                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1431
                             Filed October 12, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONNY JUNIOR WEST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (North) County, John G. Linn,

Judge.



      A defendant appeals from his convictions and sentence. CONVICTION

AFFIRMED,       SENTENCES            VACATED,    AND     REMANDED         FOR

RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Donny West appeals his convictions for reckless use of a firearm, in

violation of Iowa Code section 724.30(4) (2013), and possession of a firearm by

a felon, in violation of Iowa Code section 724.26(1). West claims the district

court erred in determining two witnesses were unavailable and admitting their

depositions, as well as admitting dash cam audio evidence, over his hearsay

objections. West also asserts there was insufficient evidence to establish he

intentionally discharged a firearm and the district court failed to provide specific

reasons for imposing consecutive sentences. We conclude the depositions and

the audio evidence fell within exceptions to the prohibition of hearsay evidence

and there was sufficient evidence to support West’s conviction for reckless use of

a firearm. However, we agree the district court did not give specific reasons for

imposing consecutive sentences. Therefore, we affirm West’s convictions, but

we vacate West’s sentences and remand for resentencing consistent with State

v. Hill, 878 N.W.2d 269, 273–74 (Iowa 2016).

       I.     Background Facts and Proceedings

       Just after midnight on April 5, 2015, a Fort Madison Police Department

officer received a call from dispatch regarding a shooting at a residence in Fort

Madison. The officer arrived at the residence within a minute but quickly pursued

a vehicle leaving the residence. When the officer stopped the vehicle, West was

identified as the driver. A .22 caliber revolver was later discovered in a parking

lot along the route West traveled after leaving the residence.

       Meanwhile, a second officer arrived at the residence and was called to the

back of the house by Melissa Fraise. Fraise’s son had a gunshot wound in his
                                          3


leg, and he told the officer the gun used was a .22 caliber revolver. The officer

described Fraise as “extremely upset” and “frazzled.” Fraise told the officer she

and West had a disagreement after a night of drinking. Fraise further explained

West punched her during a physical altercation, her son had an altercation with

West while trying to help Fraise, and she had seen West with a gun during the

altercation. Fraise said she did not see West brandish the gun or pull the trigger.

When an ambulance arrived to take Fraise’s son to the hospital, Fraise moved

outside. She spoke briefly with one of the officers, and that conversation was

captured by the audio recorder in the officer’s patrol car.

       On April 15, 2015, the State charged West by trial information with five

counts stemming from the incident.1 On May 27, 2015, West deposed Fraise

and her son. Fraise described the incident in substantially the same way she

described it to the officers on the night it happened. She believed the shooting

was an accident. At the deposition, Fraise’s son stated that he came downstairs

after hearing Fraise and West arguing and saw Fraise’s face was red and

swollen. He then got into a physical altercation with West while trying to get him

to leave, and he saw West pull a gun out. Fraise’s son said the gun went off

when “I like tripped or fell or something, but then [West] tackled her and her back

hit the space heater in the kitchen. And then the gun went off and it shot my leg.

And then [West] ran.” Like his mother, he thought the shooting was an accident.

       On June 9, 2015, the State subpoenaed Fraise and her son to testify at

trial. Fraise told the officer who served the subpoenas that she and her son were


1
  The State filed an amended trial information on June 24, 2015, which only included
three counts. West was acquitted of assault causing bodily injury.
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moving to Florida. The officer told her that it was possible the county attorney

could assist with travel arrangements for their return and explained “at length” the

consequences of failing to appear. Fraise also discussed the subpoenas and

assistance with travel expenses with the assistant county attorney later that day

and indicated that she would likely be able to return for trial.

       On July 7, 2015, Fraise informed the assistant county attorney her car had

broken down, she did not have funds to repair it, and she was not able to return

for trial; the assistant county attorney again warned her of the consequences of

failing to comply with the subpoenas. Later that day, the State filed a motion to

declare the witnesses unavailable. After a hearing, the district court made a

preliminary determination the State had “undertaken good faith and reasonable

efforts to secure the attendance” of Fraise and her son and the witnesses were

unavailable. However, the court ordered the State to continue efforts to secure

the attendance of Fraise and her son.

       The State purchased two round-trip bus tickets for Fraise and her son and

left voicemails on Fraise’s phone with instructions to pick them up. Fraise told

the assistant county attorney that she received the voicemails but could not leave

her other two children in Florida. The tickets were not used, and Fraise and her

son did not return for trial. At trial, the State renewed its motion to declare the

witnesses unavailable and indicated that it intended to present the witnesses’

depositions. West objected, claiming use of the depositions was hearsay and the

State had not made reasonable efforts to secure the attendance of the

witnesses. West also claimed use of the depositions violated the Confrontation

Clause. The district court determined the witnesses were unavailable, the State
                                         5


made reasonable efforts to secure the attendance of the witnesses, and

admission of the depositions did not violate the Confrontation Clause.           The

depositions were read to the jury. The district court also admitted the dash cam

audio of Fraise’s statements to the officer over West’s hearsay objection.

       On July 15, 2015, a jury convicted West of reckless use of a firearm and

possession of a firearm by a felon.      On August 21, 2015, the district court

discussed West’s criminal record and concluded confinement was necessary.

The court sentenced West to thirty-days imprisonment and a fine on the reckless-

use-of-a-firearm charge and five-years imprisonment and a fine on the felon-in-

possession-of-a-firearm charge.      The court ordered the sentences to run

consecutive without further comment. West appeals.

       II.    Standard of Review

       Evidentiary rulings are reviewed for an abuse of discretion.          State v.

Huston, 825 N.W.2d 531, 536 (Iowa 2013). “[T]he admission of claimed hearsay

evidence is reviewed for correction of errors at law.”      State v. Shipley, 757

N.W.2d 228, 231 (Iowa 2008). Claims stemming from the Confrontation Clause

are reviewed de novo. Id. “Sufficiency of evidence claims are reviewed for a

correction of errors at law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Finally, when a sentence falls within statutory limits, the sentence is reviewed for

abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015).

       III.   Deposition Testimony

       West argues the district court erred in determining the witnesses were

unavailable and determining the depositions fell within the declarant-unavailable

exception to the rule prohibiting the admission of hearsay evidence. West also
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claims admission of the depositions violated the Confrontation Clause. The State

takes the opposite position on both issues.

       “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Iowa R. Evid. 5.801(c). “Hearsay is not admissible unless it

falls within one of several enumerated exceptions.” State v. Newell, 710 N.W.2d

6, 18 (Iowa 2006).     The depositions admitted in this case were out-of-court

statements asserted for their truth; therefore, the depositions were hearsay and

were inadmissible unless they fell within an exception. Our rules of evidence

allow the admission of certain hearsay evidence, including former testimony, if

the declarant is unavailable as a witness. See Iowa R. Evid. 5.804(a), (b)(1).

Additionally, the Confrontation Clause permits admission of “testimonial”2

statements “only if the declarant was unavailable and there had been a prior

opportunity for cross-examination.” Shipley, 757 N.W.2d at 235.

               A.    Unavailability

       A witness is “unavailable” when the witness “[i]s absent from the trial or

hearing and the proponent of a statement has been unable to procure the

witness’s attendance by process or other reasonable means.” Iowa R. Evid.

5.804(a)(5).   Further, “[a] witness is not unavailable for confrontation clause

purposes ‘unless the prosecutorial authorities have made a good faith effort to

obtain his presence at trial.’” State v. Holland, 389 N.W.2d 375, 379 (Iowa 1986)

(quoting Barber v. Page, 390 U.S. 719, 724–25 (1968)). Fraise and her son were


2
  Depositions are generally considered testimonial under the formulation “formalized
testimonial materials.” See Shipley, 757 N.W.2d at 235.
                                           7


absent from the hearing even though the State: (1) obtained subpoenas requiring

them to testify, (2) warned Fraise of the consequences of not appearing, (3)

offered assistance with travel and accommodation expenses, and (4) provided

bus tickets for Fraise and her son. West argues the State should have provided

bus tickets for all of Fraise’s children or attempted to obtain subpoenas through

the Florida court system.         The district court found the State undertook

reasonable, good-faith efforts to secure Fraise and her son as witnesses. Upon

our review of the record, we agree. The State contacted Fraise several times,

both before and after she decided to move to Florida. After her move, the State

continued the contacts and initiated steps to bring Fraise and her son back to

testify at the trial.    Fraise’s reasons for not accepting the State’s offers of

assistance do not undercut the State’s efforts in securing her presence. We

affirm the district court on its finding the witnesses were unavailable.

              B.        Former Testimony

       “[A] deposition taken in compliance with law in the course of the same or

another proceeding” qualifies as former testimony “if the party against whom the

testimony is now offered . . . had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.” Iowa R. Evid. 5.804(b)(1);

see also Crawford v. Washington, 541 U.S. 36, 59 (2004) (“Testimonial

statements of witnesses absent from trial have been admitted only where the

declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.”). West contends he did not have a similar motive

to cross-examine the witnesses because his purpose at the deposition was to
                                          8


gather evidence, rather than attack the witness’s credibility. Yet, the district court

noted defense counsel

       did a very good job not in conducting just a discovery deposition to
       discover the facts, but there’s a significant amount of cross-
       examination, questions where you pushed and probed the
       witnesses’ memory, the use of alcohol and possibly drugs by the
       adult witness, prior bad acts of the adult witness, also probing
       questions of the juvenile as far as what he saw, heard, and did.

While West may have preferred to probe the witnesses further at trial, an

opportunity and similar motive for cross-examination does not extend “in

whatever way, and to whatever extent, the defense might wish.”               State v.

Tompkins, 859 N.W.2d 631, 640 (Iowa 2015) (quoting United States v. Owens,

484 U.S. 554, 559 (1988)). West’s similar motive for cross-examination at the

depositions is demonstrated by the substance of his questions, which challenged

the perceptions, memories, and overall credibility of the witnesses. Accordingly,

we agree with the district court that West had an opportunity and similar motive

to cross-examine the witnesses at the deposition.

       Because we agree the witnesses were unavailable and West had a prior

opportunity and similar motive for cross-examination, we affirm the district court’s

admission of the depositions.

       IV.    Dash Cam Audio

       West argues the district court erred in determining dash cam audio of

Fraise’s description of the events surrounding the shooting fell into the “excited

utterance” and “present sense impression” exceptions to the ban on hearsay

evidence. The State asserts the court properly determined the recording fell
                                          9


within an exception to the hearsay prohibition and any error by the district court

was harmless.

              A.     Excited Utterance

       The recording admitted in this case contained an out-of-court statement

asserted for its truth; therefore, the recording was hearsay and was inadmissible

unless it fell within an exception.    See Iowa R. Evid. 5.801(c); Newell, 710

N.W.2d at 18. Iowa Rule of Evidence 5.803(2) allows the admission of hearsay

evidence that qualifies as an excited utterance. The rule defines an excited

utterance as: “A statement relating to a startling event or condition made while

the declarant was under the stress of excitement caused by the event or

condition.” Iowa R. Evid. 5.803(2).

       The application of the exclusion lies largely within the discretion of
       the trial court, which should consider (1) the time lapse between the
       event and the statement, (2) the extent to which questioning elicited
       the statements that otherwise would not have been volunteered, (3)
       the age and condition of the declarant, (4) the characteristics of the
       event being described, and (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). The crucial question is

whether the statement was “made under the influence of the excitement of the

incident rather than upon reflection or deliberation.” Id.

       In this case, the audio contains Fraise’s brief statement to the officer

pertaining to the shooting. It was made on the street while Fraise’s son was

receiving medical attention in an ambulance. Fraise can be heard crying and

breathing heavily. The district court found “very little time passed” between the

shooting and the statement.       The statement was made in response to the

officer’s general questions about what happened.
                                          10


       The time lapse between the shooting and the statement was shorter than

those lapses previously upheld for excited utterances. See id. at 782 (finding

excited utterance with a time lapse of two hours). While Fraise’s statement was

made in response to questions, the questions were brief, general, and sought a

description of events, which Fraise was likely to volunteer.3 See State v. Mateer,

383 N.W.2d 533, 535 (Iowa 1986) (finding an excited utterance where questions

“merely anticipated excited descriptions of the incident which the complainant

and her girlfriend were bound to volunteer to the officer in any event”). Fraise

and her son had just been in a physical altercation that escalated to a shooting;

Fraise had been struck; her son had been shot; and she was talking to a police

officer while her son received medical attention in an ambulance nearby. Both

the audio and the officer’s testimony indicate that Fraise was crying and upset

when she made the statement. The circumstances taken as a whole support a

finding that Fraise’s statement was “made under the influence of the excitement

of the incident rather than upon reflection or deliberation.” See Atwood, 602

N.W.2d at 782.       Therefore, the district court correctly determined Fraise’s

statement was an excited utterance.

3
 This conversation took place over approximately thirty-five seconds. While the audio
quality is poor, Fraise can be heard breathing heavily, crying, and struggling to speak.
We discern the conversation as:
                Officer: Hi, can you tell me where he had the car parked? Fraise:
        Where [West] had his car parked?
                Officer: Uh huh. Fraise: Out back here.
                Officer: Oh, he was out back? Ok, and from here he went where?
        Fraise: I don’t know.
                Officer: I mean, how’d he leave the house? Through the door
        here or out the front? Fraise: I mean, he, I know that he had the gun in
        his hands and he said, “I’m leaving; I’m leaving.” And I said, “please,
        please [crying].”
           Officer: Yeah, which way did he go? Out this door? Fraise: Uh huh.
                                        11


             B.     Harmless Error

      The State adds that even if the dash cam audio was wrongly admitted into

evidence, the admission was harmless. The wrongful admission of evidence

does not require reversal if the error is harmless. State v. Walls, 761 N.W.2d

683, 686 (Iowa 2009).      “To establish harmless error, the State must ‘prove

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.’” State v. Peterson, 663 N.W.2d 417, 431 (Iowa 2003) (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). We evaluate this standard with

a two-step analysis to determine: (1) “what evidence the jury actually considered

in reaching its verdict,” and (2) based on the weight of the evidence considered,

whether the jury’s verdict would have been the same without the wrongly-

admitted evidence. Walls, 761 N.W.2d at 686–87.

      Here, the jury was free to consider Fraise and her son’s depositions, the

testimony of the officers about the events surrounding the shooting and their

investigation, the discovery of the gun, the statements West made to the police,

and West’s testimony at trial. Even if the dash cam audio was wrongly admitted,

Fraise recounted substantially the same account in her deposition, which we

have already determined was properly admitted. See Newell, 710 N.W.2d at 19

(“[E]rroneously admitted hearsay will not be considered prejudicial if substantially

the same evidence is properly in the record.”). Because substantially the same

evidence as the evidence contained in the dash cam audio was already properly

in the record, we conclude any error in admitting the dash cam audio was

harmless.
                                        12


      V.     Insufficient Evidence

      West claims there was insufficient evidence to support his conviction for

reckless use of a firearm. Specifically, West claims a reasonable jury could not

have determined he “intentionally” fired the gun. The State contends the jury

could have properly concluded West intentionally fired the gun.

      “In reviewing challenges to the sufficiency of evidence supporting a guilty

verdict, courts consider all of the record evidence viewed ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly

drawn from the evidence.’”      Sanford, 814 N.W.2d at 615 (quoting State v.

Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002)). The jury’s verdict will not

be disturbed if there was substantial evidence in the record to support it. Id.

“Evidence is considered substantial if, when viewed in the light most favorable to

the State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.” Id. Further, the jury is free to accept or reject whichever

evidence it chooses. Id.

      We believe the jury reasonably could have concluded West intended to

fire the gun based on West’s general behavior, his possession of the gun, and

Fraise’s son’s testimony that West pulled the gun out. In addition, the State’s

expert testified the particular type of gun, which most likely was the weapon

used, was not the type which would “accidently discharge”; rather, it would

require substantial pressure to actually pull the trigger. Taken together, these

facts amount to substantial evidence in the record supporting the jury’s verdict;

therefore, we conclude there was sufficient evidence in the record to support

West’s conviction for reckless use of a firearm.
                                        13


      VI.    Sentences

      Finally, West asserts the district court abused its discretion in imposing

consecutive sentences because the court did not provide specific reasons to

justify the consecutive sentences. The State argues the district court articulated

its reason for imposing consecutive sentences when discussing the overall

sentencing plan.

      Iowa Rule of Criminal Procedure 2.23(3)(d) requires a sentencing court to

“state on the record its reason for selecting the particular sentence.” In Hill, the

Iowa Supreme Court held this rule applied to a court’s decision to impose

consecutive sentences. 878 N.W.2d at 273–74. “Sentencing courts should also

explicitly state the reasons for imposing a consecutive sentence.” Id. at 275.

Further, the Hill court overruled its own precedent allowing appellate courts to

infer the same reasons from a sentencing court’s overall sentencing plan. Id.

(overruling State v. Hennings, 791 N.W.2d 828, 839 (Iowa 2010) and State v.

Johnson, 445 N.W.2d 337, 343 (Iowa 1989)).

      Here, the district court explained in detail its reasons for imposing a

sentence of incarceration on West.      However, without the benefit of the Hill

decision, the court ordered the sentences to run consecutively without further

explanation. In keeping with Hill, we vacate West’s sentences and remand for

resentencing. See id.

      VII.   Conclusion

      As we conclude the depositions and dash cam audio fell within exceptions

to the general exclusion of hearsay evidence and there was sufficient evidence to

support West’s conviction for reckless use of a firearm, we affirm the district
                                     14


court’s rulings and West’s convictions. We vacate West’s sentences and remand

for resentencing.

      CONVICTION AFFIRMED, SENTENCES VACATED, AND REMANDED

FOR RESENTENCING.
