                       IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1641
                                Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROGER BERNELL ENNENGA,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



       Roger Bernell Ennenga appeals his conviction and sentence for

unauthorized use of a credit card. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant

Attorney General, for appellee.




       Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J.* Blane,

S.J., takes no part.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, Senior Judge.

      Roger Bernell Ennenga appeals his conviction and sentence for

unauthorized use of a credit card in violation of Iowa Code section 715A.6

(2013). Ennenga contends (1) the court improperly admitted evidence that thirty

dollars was missing from the victim’s purse; (2) his trial counsel was ineffective

for failing to move for a mistrial based on a statement made by the prosecution in

closing arguments; and (3) there was insufficient evidence to support his

conviction. We affirm.

      I.     Background Facts and Proceedings

      On January 8, 2014, Ennenga appeared unannounced at the home of

Patricia Irwin, Ennenga’s step-mother.      Ennenga and Irwin were not well-

acquainted, having interacted only five or six times in the previous decade.

Ennenga told Irwin he was there to introduce her to his new wife, Denise. While

Denise and Irwin spoke in the kitchen, Ennenga wandered around Irwin’s house.

Ennenga reappeared in the kitchen, following which Ennenga and Denise stayed

for approximately ten minutes and then left. After their departure, Irwin noticed

her purse in the hallway, looked inside, and found two credit cards and thirty

dollars were missing.

      Irwin contacted her bank and learned of an unauthorized charge at

Walgreens in the amount of $165.42. In the course of their investigation, the

police found video recordings of Ennenga at Walgreens purchasing $165.42

worth of cigarettes and gift cards on Irwin’s credit card. Ennenga was charged

with unauthorized use of a credit card, an aggravated misdemeanor.
                                          3


         Before trial, Ennenga moved in limine to exclude the evidence that thirty

dollars was also taken from the purse, which the district court denied. The jury

found Ennenga guilty. Ennenga appeals.

         II.      Standard and Scope of Review

         “We review evidentiary rulings for abuse of discretion.” State v. Huston,

825 N.W.2d 531, 536 (Iowa 2013).          “A court abuses its discretion when its

‘discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” State v. Putnam, 848 N.W.2d 1, 8 (Iowa 2014)

(quoting State v. Long, 814 N.W.2d 572, 576 (Iowa 2012)). “A ground or reason

is untenable when it is not supported by substantial evidence or when it is based

on an erroneous application of the law.” Id. (quoting In re Det. of Stenzel, 827

N.W.2d 690, 697 (Iowa 2013)). Even if an abuse of discretion has occurred,

“reversal will not be warranted if error was harmless.” State v. Reynolds, 765

N.W.2d 283, 288 (Iowa 2009).

         In order to prove an ineffective-assistance-of-counsel claim, an appellant

must show by a preponderance of the evidence that counsel (1) failed to perform

an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,

701 (Iowa 2012).        We can resolve ineffective-assistance claims under either

prong.         State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).      We review

ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa

2013).

         “A guilty verdict must be supported by substantial evidence.”    State v.

Serrato, 787 N.W.2d 462, 465 (Iowa 2010). “‘Substantial evidence’ is that upon

which a rational trier of fact could find the defendant guilty beyond a reasonable
                                         4

doubt.” Id. (quoting State v. Hagedorn, 679 N.W.2d 666, 668-69 (Iowa 2004)).

In making this determination, we “view the ‘evidence in the light most favorable to

the State, including legitimate inferences and presumptions that may fairly and

reasonably be deduced from the record evidence.’” Id. (quoting State v. Quinn,

691 N.W.2d 403, 407 (Iowa 2005)).

       III.   Analysis

       Ennenga makes three challenges to his conviction: (1) the district court

erred by allowing testimony that thirty dollars was also missing from the victim’s

purse; (2) trial counsel was ineffective by failing to move for a mistrial after the

prosecutor said in closing arguments that defense counsel on cross-examination

had “attacked a little old lady”—the victim; and (3) there was not substantial

evidence to support his conviction, as there was insufficient evidence Ennenga

lacked authorization to use the credit card. We consider each argument in turn.

              A.     Evidentiary Ruling

       Ennenga challenged the admission of the evidence that thirty dollars was

taken from Irwin’s purse by motion in limine. This motion was denied. During

trial, Ennenga did not object when the State sought to introduce the evidence.

On appeal, Ennenga claims the evidence was impermissible propensity evidence

that was not relevant to the issues at trial. We assume, without deciding, error

was preserved by the motion in limine.

       Iowa Rule of Evidence 5.404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show that the person acted in
       conformity therewith. It may, however, be admissible for other
       purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident.
                                           5



       “The rule ‘exclude[s] evidence that serves no purpose except to show the

defendant is a bad person, from which the jury is likely to infer he or she

committed the crime in question.’”        Putnam, 848 N.W.2d at 8 (alteration in

original) (quoting State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001)); see

also State v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004) (“[A] defendant must be

tried for what he did, not for who he is.” (citation omitted)).

       For evidence of prior bad acts to be admissible, the State “must articulate

a noncharacter theory of relevance.” See State v. Elliott, 806 N.W.2d 660, 675

(Iowa 2011).     The court then determines whether to admit the evidence by

engaging in a three-step analysis. See Putnam, 848 N.W.2d at 8 (setting forth

the three-step process); see also Elliott, 806 N.W.2d at 675 (noting that after a

noncharacter theory is proffered, the court considers relevancy and the danger of

unfair prejudice).

       First, a court considers whether the evidence is relevant. Putnam, 848

N.W.2d at 9. Then, a court must conclude if there is clear proof the acts were

actually committed.      Id.    Finally, the court “must determine whether the

evidence’s ‘probative value is substantially outweighed by the danger of unfair

prejudice to the defendant.’” Id. (quoting Sullivan, 679 N.W.2d at 25).

       “Relevant evidence is evidence ‘having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.’” State v.

Taylor, 689 N.W.2d 116, 123 (Iowa 2004) (quoting Iowa R. Evid. 5.401). “The

general test of relevancy is ‘whether a reasonable [person] might believe the
                                            6


probability of the truth of the consequential fact to be different if [the person]

knew of the proffered evidence.’”          Putnam, 848 N.W.2d at 9 (alterations in

original) (quoting State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988)).

       The State argues the evidence came in to prove intent, as the primary

issue at trial was whether or not Ennenga had authorization to use the credit

card. State v. Richards, ___ N.W.2d ___, ___, 2016 WL 2609526, at * 6 (Iowa

2016) (“Intent is one valid, noncharacter theory of admissibility.”). The State

argues the evidence was relevant to show Ennenga did not have authorization to

take the credit cards, because a reasonable juror could believe Ennenga would

be less likely to steal thirty dollars from Irwin had she given him permission to

use her credit card. We agree that the evidence was relevant to the issues in

dispute, namely Ennenga’s intent at the time he used Irwin’s credit card.

       Ennenga argues clear proof is lacking. However, the evidence at trial

supports the cash was in Irwin’s house before Ennenga and Denise came to visit.

Denise was with Irwin in the kitchen while Ennenga wandered around the house,

and the cash was gone after Ennenga and Denise left. “In assessing whether

there is clear proof of prior misconduct, it is not required that the prior act be

established beyond a reasonable doubt . . . .”         Taylor, 689 N.W.2d at 130.

“There simply needs to be sufficient proof to ‘prevent the jury from engaging in

speculation or drawing inferences based on mere suspicion.’”         Putnam, 848

N.W.2d at 9 (citation omitted). This burden was met.

       Finally, Ennenga claims the evidence’s probative value was substantially

outweighed by the danger of unfair prejudice. In resolving this question, courts

consider a series of factors, including:
                                         7


         the need for the evidence in light of the issues and the other
         evidence available to the prosecution, whether there is clear proof
         the defendant committed the prior bad acts, the strength or
         weakness of the evidence on the relevant issue, and the degree to
         which the fact finder will be prompted to decide the case on an
         improper basis.

Id. at 9-10 (quoting Taylor, 689 N.W.2d at 124). Because this weighing process

“is not an exact science,” the district court that made the judgment call is given a

great deal of leeway. Id. (quoting State v. Newell, 710 N.W.2d 6, 20-21 (Iowa

2006)).

         We conclude the probative value was not substantially outweighed by the

danger of unfair prejudice. The evidence was admitted to prove intent—i.e., that

Ennenga used the credit card knowing it was stolen or knowing he did not have

authorization to use the card—and thus went directly to the only element at

issue.    As discussed above, clear proof was met.       Finally, the theft of thirty

dollars is no more offensive than the alleged theft and use of Irwin’s credit cards

and was not likely to “rouse the jury to ‘overmastering hostility.’” State v. White,

668 N.W.2d 850, 855 (Iowa 2003) (citation omitted); see also State v. Larsen,

512 N.W.2d 803, 808 (Iowa Ct. App. 1993) (noting the potential prejudice of the

uncharged crime was “neutralized by the equally reprehensible nature of the

charged crime”).

         Even were the evidence improperly admitted, the admission was harmless

error. “Reversal is not required for the erroneous admission of evidence unless

prejudice results.” Rodriquez, 636 N.W.2d at 244. “We presume prejudice under

this approach unless the contrary is affirmatively established.” State v. Parker,

747 N.W.2d 196, 209 (Iowa 2008). “When a nonconstitutional error is claimed,
                                         8


as in this case, the test is whether the rights of the objecting party have been

‘injuriously affected by the error’ or whether the party has ‘suffered a miscarriage

of justice.’” Id. (citation omitted). “[W]here the other evidence overwhelmingly

establishes the defendant’s guilt, we have applied the harmless error doctrine.”

Rodriquez, 636 N.W.2d at 244; see also State v. Caples, 857 N.W.2d 641, 648

(Iowa Ct. App. 2014). Here, the evidence establishes that Ennenga appeared

unannounced at Irwin’s door, though the parties had rarely seen each other in

the last ten years. Ennenga wandered around Irwin’s house while Irwin was

speaking with Denise; the couple then left within an hour of their arrival. After

Denise and Ennenga departed, Irwin discovered the cash and her credit cards

were gone. It is undisputed that Ennenga had and used the credit card. We

conclude any error was harmless.

              B.     Ineffective Assistance of Counsel

       In closing arguments, the prosecution stated, referring to Irwin, “[defense

counsel] wants to attack a little old lady.”     Ennenga argues this statement

constitutes prosecutorial misconduct.        To prove prosecutorial misconduct,

Ennenga must demonstrate both that the prosecution engaged in misconduct

and that prejudice resulted. See State v. Graves, 668 N.W.2d 860, 869 (Iowa

2003). When determining whether prejudice resulted, the court must consider:

       (1) the severity and pervasiveness of the misconduct; (2) the
       significance of the misconduct to the central issues in the case; (3)
       the strength of the state’s evidence; (4) the use of cautionary
       instructions or other curative measures; and (5) the extent to which
       the defense invited the misconduct.

Id. (citations omitted).    Although we agree the statement made by the

prosecution was misconduct, Ennenga cannot demonstrate the requisite
                                        9


prejudice. Here, at issue is a single comment directed at the conduct of defense

counsel in cross-examining a witness. Defense counsel had an obligation to

attempt to discredit the witness.      While the comment was improper, the

prosecutor’s conduct was neither severe nor pervasive. See Martin v. State, No.

12-2240, 2014 WL 69542, at *8 (Iowa Ct. App. Jan. 9, 2014) (“Regarding the

severity and the pervasiveness of the conduct, we note [the defendant’s]

complaints solely arise in the context of closing argument.”). Further, the single

comment did not go to the central issue of the case. The primary dispute was

whether Ennenga had authorization to use the card, not his trial counsel’s

treatment of a testifying witness.     The State had strong evidence against

Ennenga—it had video evidence of Ennenga using the credit card and testimony

from the credit card owner that this use was not authorized. Additionally, the jury

was specifically instructed that statements by the attorneys did not constitute

evidence the jury could consider in reaching its verdict. See State v. Musser,

721 N.W.2d 734, 756 (Iowa 2006) (“In addition, the jurors were instructed they

were to decide the defendant’s guilt or innocence ‘from the evidence and the law

in these instructions,’ and that evidence did not include ‘[s]tatements, arguments,

and comments by the lawyers.’” (alteration in original)).     Upon balancing the

above factors, we conclude any misconduct by the prosecution in closing

argument did not create sufficient prejudice.     See id. (noting the statements

made in opening and closing arguments were not prejudicial where “[t]he

evidence against the defendant was strong, the comments did not go to a central

issue of the case, and the improper statements by the prosecution were

isolated”). Accordingly, Ennenga’s trial counsel cannot have been ineffective in
                                          10

failing to perform a duty. See State v. Brothern, 832 N.W.2d 187, 192 (Iowa

2013) (“We will not find counsel incompetent for failing to pursue a meritless

issue.” (citation omitted)).

                C.    Substantial Evidence

         Ennenga argues there was insufficient evidence presented at trial to

support he lacked authorization to use his step-mother’s credit card or that he

knew the credit card was stolen. Irwin testified at trial she had not given her

credit card to Ennenga and had not authorized him to use it. Ennenga contends

this evidence is insufficient because Irwin was taking several medications at the

time, which could have impacted her memory. The jury is free to accept or reject

the testimony of any witness and give whatever weight to testimony they believe

it should receive. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006);

see also State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014) (“In our system of

justice, it is the jury’s function to determine the credibility of witnesses.” (citation

omitted)).     There was substantial evidence to support the jury’s conclusion

Ennenga lacked authorization to use the credit card; thus, we affirm the district

court.

         IV.    Conclusion

         For the reasons stated above, we affirm Ennenga’s conviction and

sentence.

         AFFIRMED.
