                 IN THE SUPREME COURT OF IOWA
                              No. 11–1685

                            Filed May 9, 2014


STATE OF IOWA,

      Appellee,

vs.

BRIAN M. KENNEDY,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Des Moines County,

Michael G. Dieterich, District Associate Judge.



      A defendant seeks further review of a court of appeals decision

finding the district court’s admission of certain evidence did not violate

the Confrontation Clauses of the United States and Iowa Constitutions.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.



      Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines,

for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Patrick C. Jackson, County Attorney, Tyron T. Rogers

and Justin C. Stonerook, Assistant County Attorneys, for appellee.
                                     2

WIGGINS, Justice.

      A defendant seeks further review of a court of appeals decision

finding the district court’s admission of a certified abstract of his driving

record and affidavits of the mailing of suspension notices did not violate

the Confrontation Clauses of the United States and Iowa Constitutions.

On further review, we find the admission of the certified abstract of the

defendant’s driving record does not violate the Confrontation Clauses.

We do find the district court’s admission of the affidavits of the mailing of

suspension notices violates the Confrontation Clauses. However, we also

find the district court’s admission of the affidavits was harmless error.

Therefore, we affirm the decision of the court of appeals and the

judgment of the district court.

      I. Background Facts and Proceedings.

      On November 30, 2010, a police officer observed Brian M. Kennedy

driving a vehicle in Danville.    The police officer knew the State had

previously revoked Kennedy’s driver’s license. The police officer initiated

a traffic stop and gave Kennedy a citation.       Subsequently, the State

charged Kennedy with driving under revocation in violation of Iowa Code

section 321J.21 (2011).

      On the morning of trial, the State presented Kennedy’s counsel

with a proposed exhibit entitled “Certified Abstract of Driving Record.”

The exhibit was a fifteen-page document containing four separate

certifications.   The first two pages contained an abstract of Kennedy’s

driving history as it appeared in the Iowa Department of Transportation

(IDOT) records.     The director of the Office of Driver Services signed a

certification stating the driving history was a true and accurate copy of

the official record.     The remaining thirteen pages contained three

certifications from the manager for the Office of Driver Services attesting
                                    3

to the process the IDOT uses to mail sanction notices and attesting the

IDOT mailed sanction notices that corresponded to Kennedy’s sanction

numbers.   Each of these certifications contained the official notices to

Kennedy and the corresponding certificates of bulk mailing associated

with each notice.

      Prior to trial, Kennedy made a motion in limine to exclude the

exhibit. His main challenge was the exhibit violated the Confrontation

Clauses contained in the Sixth Amendment of the United States

Constitution and article I, section 10 of the Iowa Constitution.      The

district court denied the motion and admitted the exhibit into evidence.

      Kennedy waived his right to a jury trial. The district court found

Kennedy guilty of driving under revocation in violation of Iowa Code

section 321J.21. Kennedy appealed and we transferred the case to the

court of appeals. The court of appeals affirmed the conviction. Kennedy

applied for further review, which we granted.

      II. Standard of Review.

      A defendant’s right to confront witnesses in a criminal trial is

found in the Sixth Amendment of the United States Constitution and

article I, section 10 of the Iowa Constitution. We review constitutional

claims, including Confrontation Clause claims, de novo. State v. Shipley,

757 N.W.2d 228, 231 (Iowa 2008).

      III. Preservation of Error.

      The court of appeals held Kennedy did not preserve error on his

claims involving the last thirteen pages of the exhibit.   These thirteen

pages contained the three certifications from the manager for the Office

of Driver Services attesting to the process the IDOT uses to mail sanction

notices and attesting the IDOT mailed the sanctions corresponding to

Kennedy’s sanction numbers.
                                    4

      The test to determine the sufficiency of an objection to preserve

error “is whether the exception taken alerted the trial court to the error

which is urged on appeal.” Dutcher v. Lewis, 221 N.W.2d 755, 759 (Iowa

1974). In making his motion in limine, trial counsel specifically referred

to the last thirteen pages of the exhibit as documents not part of what

the IDOT or an attorney would consider to be an abstract of a person’s

driving record. We believe the district court understood the substance of

trial counsel’s objection and was able to determine whether the objection

had merit as to each page of the exhibit. Accordingly, we find Kennedy

preserved error on this issue.

      IV. Issue.

      We must decide if any part of the fifteen-page exhibit entitled

“Certified Abstract of Driving Record” is admissible over Confrontation

Clause objections.

     V. Elements the State Needs to Prove for Conviction of the
Crime of Driving Under Revocation Under Iowa Code Section
321J.21.

      The Code defines driving under revocation as follows:

      A person whose driver’s license or nonresident operating
      privilege has been suspended, denied, revoked, or barred
      due to a violation of this chapter and who drives a motor
      vehicle while the license or privilege is suspended, denied,
      revoked, or barred commits a serious misdemeanor.

Iowa Code § 321J.21(1).     To prove Kennedy violated this statute, the

State must prove Kennedy drove a motor vehicle while his license was

revoked due to a violation of chapter 321J. See id. There is no question

Kennedy was driving a motor vehicle at the time of his arrest.        The

questions in this appeal are when was Kennedy’s license revoked under

chapter 321J and does any admissible evidence in the record support the

fact his license was revoked.
                                     5

      The State claims the IDOT revoked Kennedy’s license three

different times and each revocation remained in effect on November 30,

the day the police officer initiated the traffic stop. The IDOT claims it

first revoked Kennedy’s license for “OWI test refusal.” Iowa Code section

321J.9 governs revocation for an operating a motor vehicle while

intoxicated (OWI) chemical test refusal. This section requires the IDOT,

under certain conditions, to revoke a license when a driver refuses OWI

chemical testing. Id. § 321J.9(1). It provides in relevant part as to the

effective date of a revocation under this section:

      The effective date of revocation shall be ten days after the
      department has mailed notice of revocation to the person by
      first class mail, notwithstanding chapter 17A. The peace
      officer who requested or directed the administration of a
      chemical test may, on behalf of the department, serve
      immediate notice of intention to revoke and of revocation on
      a person who refuses to permit chemical testing. If the
      peace officer serves immediate notice, the peace officer shall
      take the Iowa license or permit of the driver, if any, and
      issue a temporary license effective for ten days.

Id. § 321J.9(4).

      The IDOT also claims it revoked Kennedy’s license for “OWI test

failure.”   Iowa Code section 321J.12 governs revocation for an OWI

chemical test failure.     This section requires the IDOT, under certain

conditions, to revoke a license when a driver fails an OWI chemical test.

Id. § 321J.12(1). It provides as to the effective date of a revocation under

this section as follows:

      The effective date of the revocation shall be ten days after the
      department has mailed notice of revocation to the person by
      first class mail, notwithstanding chapter 17A. The peace
      officer who requested or directed the administration of the
      chemical test may, on behalf of the department, serve
      immediate notice of revocation on a person whose test
      results indicated the presence of a controlled substance or
      other drug, or an alcohol concentration equal to or in excess
                                     6
      of the level prohibited by section 321J.2, or a combination of
      alcohol and another controlled substance or drug in violation
      of section 321J.2.

Id. § 321J.12(3).

      Finally, the IDOT claims it revoked Kennedy’s license for “operating

while intoxicated.” Iowa Code section 321J.4 governs revocation for OWI.

This section requires the IDOT to revoke a license “[i]f a defendant is

convicted of a violation of section 321J.2.”       See id. § 321J.4(1).    In a

criminal proceeding, a conviction is the judgment of conviction entered

after sentencing. See Iowa R. Crim. P. 2.23(1), (3)(d). Consequently, the

effective date of a revocation for operating while intoxicated is the date of

conviction.

      Therefore, to prove its case, the State must prove Kennedy drove

his vehicle after the effective date of a revocation and before the IDOT

reinstated his license.

      VI. Confrontation Clauses.

      Kennedy challenges the introduction of the fifteen-page exhibit as a

violation of the Confrontation Clauses under the Sixth Amendment of the

United States Constitution and under article I, section 10 of the Iowa

Constitution.       The   Confrontation   Clause     of   the   United    States
Constitution states the accused has the right “to be confronted with the

witnesses against him.”       U.S. Const. amend. VI.            Identically, the

confrontation clause of the Iowa Constitution states the accused has the

right “to be confronted with the witnesses against him.” Iowa Const. art.

I, § 10.      “[W]e jealously protect this court’s authority to follow an

independent approach under our state constitution” for provisions of the

Iowa Constitution that are the same or nearly identical to provisions in

the United States Constitution. State v. Pals, 805 N.W.2d 767, 771 (Iowa

2011).     However, in his appellate brief, Kennedy does not propose a
                                    7

specific test we should apply under article I, section 10 of the Iowa

Constitution. Rather he only cites caselaw analyzing the Confrontation

Clause under the United States Constitution. Thus, under the facts of

this case, we choose not to interpret the Iowa Constitution any differently

from the United States Constitution.    See Shipley, 757 N.W.2d at 234

(“Because Shipley has not contended that the Iowa Constitution should

be interpreted differently than the Confrontation Clause in the Sixth

Amendment to the United States Constitution, we construe the

provisions identically.”).

      The Supreme Court interpreted the Confrontation Clause in

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004). There, the Supreme Court recognized the Confrontation Clause

was intended to protect against the principal evil of testimonial

statements in the absence of the declarant. See id. at 50, 124 S. Ct. at

1363, 158 L. Ed. 2d at 192. Courts can only admit these testimonial

statements in subsequent proceedings if the declarant is unavailable and

there has been a prior opportunity for cross-examination. Id. at 59, 124

S. Ct. at 1369, 158 L. Ed. 2d at 197.         Thus, the first inquiry in

Confrontation Clause analysis is whether the evidence is testimonial.

      Though the Supreme Court did not specifically identify a

comprehensive definition of “testimonial,” it provided some guidance in

determining which evidence is testimonial.     First, the Supreme Court

held grand jury testimony, preliminary hearing testimony, former trial

testimony, and statements resulting from police interrogation are

testimonial. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Next,

the Supreme Court identified several formulations for courts to use to

identify testimonial evidence. Id. at 51–52, 124 S. Ct. at 1364, 158 L.

Ed. 2d at 193. The relevant formulation here is whether the evidence
                                      8

contains statements made in circumstances that would lead witnesses to

objectively believe the statements might be used at trial. See id. at 51–

52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193.

      For our analysis, we will divide the fifteen-page exhibit into two

types of documents. The first two pages of the exhibit are the certified

abstract of Kennedy’s driving record. We will consider these two pages

separately from the last thirteen pages, which consist of three notices of

revocation and an affidavit of mailing and certificate of bulk mailing

attached to each notice.    For clarity, we will identify the last thirteen

pages as the affidavits of mailing.

      A.    Certified Abstract of Kennedy’s Driving Record.              We

previously determined a certified abstract of a driving record was

nontestimonial. Shipley, 757 N.W.2d at 238. Kennedy argues we should

revisit the Shipley decision and overrule Shipley based on two

subsequent Supreme Court decisions.

      In Shipley, the defendant challenged the admission of a certified

abstract of his driving record as violating the Confrontation Clauses of

the United States and Iowa Constitutions.       Id. at 234.   The defendant

argued the district court could only admit the certified abstract of driving

record if the custodian of his driving records was available for cross-

examination. Id. In determining otherwise, we identified two different

confrontation issues with the certified abstract of driving record. Id. at

234–35.    The first issue was whether the underlying public record

required a live witness, and the second issue was whether the record

could be authenticated without the custodian’s testimony. Id.

      We   first   recognized   the   underlying public   record   was   not

testimonial when we considered the purpose of the right of cross-

examination. Id. at 237. The IDOT created the driving record prior to
                                      9

the criminal prosecution and it would have existed even if there was not

a subsequent criminal prosecution. Id. Thus, the primary evil Crawford

sought to avoid, namely information gathered by an inquisitory

investigation, did not exist.    Id. at 238.    We came to this conclusion

based on a particularized analysis of the purpose of the Confrontation

Clause and the nature of the information in the public record, rather

than a broad view that all public records would be admissible.        Id. at

237.

        We next recognized the certification of authenticity of the public

record was not testimonial.       Id. at 239.    In Shipley, we specifically

compared a certification of a driving record to a certification of other

forensics, and determined these certifications were sufficiently distinct.

Id.    Unlike forensic certificates, the driving record certification merely

certified the authenticity of a copy of a preexisting document. Id. at 238–

39.    Further, access to a driving-record certification is not limited to

governmental interrogation, but is available to anyone. Id. at 239. We

concluded the certificate of authenticity did not violate the Confrontation

Clauses of the United States and Iowa Constitutions. Id.

        Kennedy argues Shipley is no longer good law because of two

subsequent Supreme Court decisions: Melendez-Diaz v. Massachusetts,

557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming

v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).

Both of these cases consider whether forensic certificates of analysis

violate the Confrontation Clause of the United States Constitution.

        In Melendez-Diaz, the Supreme Court determined certificates of

analysis stating several seized bags contained cocaine were testimonial

and thus subject to the Confrontation Clause. 557 U.S. at 308–11, 129

S. Ct. at 2531–32, 174 L. Ed. 2d at 320–22. The certificates showed the
                                    10

results of the forensic analysis, reported the weight of the bags, and

indicated the bags contained cocaine. Id. at 308, 129 S. Ct. at 2531, 174

L. Ed. 2d at 320. The Supreme Court determined the certificates were

testimonial for three reasons.      First, the description of testimonial

statements from Crawford included affidavits. Id. at 310, 129 S. Ct. at

2532, 174 L. Ed. 2d at 321. These certificates were affidavits because

they were “ ‘declaration[s] of facts written down and sworn to by the

declarant before an officer authorized to administer oaths.’ ” Id. at 310,

129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Black’s Law Dictionary

62 (8th ed. 2004)).     Second, the court noted these documents were

“functionally identical to live, in-court testimony.” Id. at 310–11, 129 S.

Ct. at 2532, 174 L. Ed. 2d at 321.        Third, the sole purpose of the

affidavits under state law was to provide evidence of the net weight,

quality, and composition of the substances being tested, and the

analysts were aware of the evidentiary purpose of the affidavits. Id. at

311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.

      The Supreme Court addressed whether the analysts themselves

were witnesses providing testimony against the defendant. Id. at 313,

129 S. Ct. at 2533, 174 L. Ed. 2d at 323.             The Supreme Court

determined the analysts were witnesses because they provided testimony

against the defendant that the substance he possessed was cocaine, and

this fact was necessary for his conviction. Id. at 313, 129 S. Ct. at 2533,

174 L. Ed. 2d at 323.

      The   Supreme     Court   specifically   differentiated   between   the

affidavits in that case and a clerk’s certificate authenticating an official

record for use as evidence. Id. at 322–23, 129 S. Ct. at 2538–39, 174 L.

Ed. 2d at 328–29. The Supreme Court stated “[a] clerk could by affidavit

authenticate or provide a copy of an otherwise admissible record, but
                                    11

could not do what the analysts did here: create a record for the sole

purpose of providing evidence against a defendant.” Id. at 322–23, 129

S. Ct. at 2539, 174 L. Ed. 2d at 329.

      In Bullcoming, the Supreme Court determined a forensic laboratory

report certifying the defendant’s blood alcohol content violated the

Confrontation Clause when an analyst who had not prepared the report

testified. 564 U.S. at ___, 131 S. Ct. at 2709–10, 180 L. Ed. 2d at 616.

The Supreme Court considered whether a substitute analyst who did not

prepare the report could give proper testimony under the Confrontation

Clause when the report itself was testimonial. Id. at ___, 131 S. Ct. at

2710, 180 L. Ed. 2d at 616. The Supreme Court reasoned the analyst

could not be a proper substitute because this testimony could not convey

what the actual analyst knew about the particular testing process

employed. Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622.

      We hold the rulings in Melendez-Diaz and Bullcoming do not

overrule or undermine our decision in Shipley. A certified abstract of a

driving record is significantly different from a forensic report analyzing

drugs or blood alcohol content. A certified abstract of a driving record

encompasses the information contained in the IDOT records.             That

information existed well before the alleged criminal act. The compiling of

the record does not require a scientist or technician to do any tests in

order to report what already exists in the IDOT records. In other words,

the certified abstract of a driving record is nothing more than a historical

report of what is contained in the records of the IDOT.

      Accordingly, the certified abstract of Kennedy’s driving record, the

first two pages of the exhibit, is not testimonial and the admission of

these two pages did not violate the Confrontation Clauses of the United

States or Iowa Constitutions.
                                      12

        B.   Affidavits of Mailing.   These documents require us to do a

different analysis.    We have not previously considered whether an

affidavit of mailing and its attachments are testimonial. In Shipley, we

recognized our task in that case was “limited to the consideration of the

admissibility of a copy of an existing driving record kept by the custodian

of records.” 757 N.W.2d at 237 n.2.

        The last thirteen pages of the exhibit contained three affidavits of

mailing with attachments.         Each affidavit addressed a separate

revocation of Kennedy’s driving privileges. The first affidavit addressed a

notice of revocation mailed on May 21, 2010.           The notice revoked

Kennedy’s license for refusing OWI chemical testing.          It stated the

effective date of the revocation was June 3, 2010.         The notice also

provided the revocation would last until June 2, 2012.

        The second affidavit addressed a notice of revocation mailed on

June 16, 2010.      The notice revoked Kennedy’s license for failing OWI

chemical testing. It stated the effective date of the revocation was June

29, 2010. The notice also provided the revocation would last until June

28, 2011.

        The third affidavit addressed a notice of revocation mailed on

August 30, 2010.      The notice revoked Kennedy’s license for his OWI

conviction.    It stated the effective date of the revocation was July 30,

2010. The notice also provided the revocation would last until July 29,

2016.

        Each affidavit of mailing contained the following language:

               I, Kathy McLear, being first duly sworn on oath, state
        as follows:

        That I am a Manager for the Office of Driver Services, Iowa
        Department of Transportation, an agency of the State of Iowa
        which generates and maintains all the official records of the
                                        13
         lowa Department of Transportation relating to driver
         licenses, license suspensions, revocations, cancellations,
         denials, disqualifications and barrment matters, and the
         mailing of sanction notices concerning the same. As part of
         my job duties with the Department, I know the process the
         Department uses to mail sanction notices to drivers.

         That as a part of the regularly conducted and regularly
         recorded activities of the Office of Driver Services of the lowa
         Department of Transportation, the Department caused to be
         mailed by first class mail on or about [date of mailing notice],
         at the United States Postal Service, 1165 2nd Avenue,
         Des Moines, Iowa, and to driver(s) at each driver’s last
         known address as shown in the records of the Department,
         the following sanction notices:

         Sanction Notices Number(s): [identifying number on notice]

         Proof of said mailing is set out in the attached United States
         Postal Service Certificate of Bulk Mailing, certified to by a
         knowledgeable employee of the United States Postal Service
         and prepared in the regular course of its business at its
         location at 1165 2nd Avenue, Des Moines, Iowa at the time
         of said mailing.

         To determine whether these thirteen pages are testimonial, we

must determine whether either the underlying public record or the

certificate of authenticity contain statements made in circumstances that

would lead a witness to objectively believe the statements might be used

at trial. See Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364, 158 L. Ed.

2d at 193. At least two other states’ highest courts have addressed this

issue.

         In   Michigan,   the    Michigan    Department   of   State   (DOS)   is

responsible for mailing notices of revocation to drivers. People v. Nunley,

821 N.W.2d 642, 643 (Mich. 2012), cert. denied, 133 S. Ct. 667 (2012).

In June 2009, the DOS sent a notice of revocation to the defendant. Id.

at 643–44. Contemporaneous with sending the notice, the DOS prepared

a certificate of mailing and maintained the certificate in its official

records.      Id. at 644.       In September 2009, the police stopped the
                                     14

defendant and charged him with driving while his license was revoked.

Id. At trial, the court would not admit the certificate of mailing due to a

Confrontation Clause objection under the United States Constitution. Id.

The case reached the Supreme Court of Michigan. See id. at 647.

        The Michigan court determined a certificate of mailing was not

testimonial because the certificate of mailing was a business record

created for administrative reasons. Id. at 653. The court recognized the

certificate was an objective cataloging intended to show the agency

performed its statutory responsibilities. Id. Further, the court pointed

out the DOS created the certificate of mailing before any crime, and the

mailing was contemporaneous with the notice. Id. Thus, the certificate

did not violate the Confrontation Clause because “it was not made under

circumstances that would lead an objective witness reasonably to believe

that it would be available for use at a later trial.” Id. at 654 (emphasis

omitted).

        In Massachusetts, the supreme judicial court considered whether a

certificate of mailing violated the Confrontation Clause of the United

States Constitution when the certificate was created exclusively for trial.

Commonwealth v. Parenteau, 948 N.E.2d 883, 885–86, 891 (Mass. 2011).

On May 30, 2009, an officer stopped the defendant’s vehicle, and he

arrested the defendant for operating a motor vehicle after his license had

been revoked.       Id. at 886–87.    In the subsequent jury trial, the

commonwealth introduced the certificate attesting a notice of license

suspension or revocation was mailed to the defendant on May 2, 2007.

Id. at 887. The registry prepared and dated the certificate on July 24,

2009.     Id. at 887.   The district court admitted the certificate into

evidence.     Id.   The case reached the Supreme Judicial Court of

Massachusetts. Id. at 885–86.
                                     15

      The Massachusetts court noted the certificate was dated two

months after the criminal complaint was issued and clearly was made for

use at the defendant’s trial. Id. at 890. Further, the certificate did not

merely authenticate and attest to the existence of a record, but made a

factual representation that the agency mailed notice on a particular date.

Id.   Nor could the agency show it mailed the notice by proving the

existence of a copy of the notice in the agency’s filing system. Id.

      The Michigan and Massachusetts cases contain the proper

analysis under the Confrontation Clause. The Michigan court found the

DOS made and kept the certificate of mailing well before any prosecution

of the criminal charges. Thus, an affidavit of mailing prepared prior to

criminal charges kept in the regular course of business as an

administrative record does not violate the Confrontation Clause. On the

other hand, the Massachusetts court found the registry prepared the

certificate of mailing after the complaint and the commonwealth was

using the factual representations in the certificate as testimony to prove

when the mailing occurred.      Thus, the Confrontation Clause prohibits

the admission of an affidavit of mailing when the affidavit is both

prepared after the criminal charges and the affidavit makes a factual

representation intended as testimony.

      We find the last thirteen pages contained in the exhibit at issue,

the affidavits of mailing and attachments, squarely fit under the

reasoning of the Massachusetts court.       The affidavits of mailing were

prepared after the State filed the complaint against Kennedy. All three

affidavits are dated December 10, 2010, after Kennedy’s traffic stop on

November 30. The affidavits did not merely authenticate and attest to

the existence of a record in the IDOT’s possession, but made factual

representations the IDOT mailed the notices on particular dates.
                                     16

Applying the Crawford test, we find the IDOT created the affidavits under

circumstances that would lead an objective witness to reasonably believe

the affidavits would be available for use at a later trial. Therefore, the

affidavits of mailing and attachments violated the Confrontation Clauses

of the United States and Iowa Constitutions and were not admissible.

      VII. Harmless Error.

      Reversal of a criminal conviction is not required for a federal

constitutional error if the error is harmless. See Chapman v. California,

386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 709 (1967). The

erroneous admission of evidence in violation of the Confrontation Clause

is a constitutional error subject to a harmless-error analysis. Delaware

v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d

674, 686 (1986).

      “Harmless-error review looks . . . to the basis on which ‘the jury

actually rested its verdict.’ ” Sullivan v. Louisiana, 508 U.S. 275, 279, 113

S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993) (quoting Yates v. Evatt,

500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d 432, 449

(1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72

n.4 (1991)). The inquiry

      is not whether, in a trial that occurred without the error, a
      guilty verdict would surely have been rendered, but whether
      the guilty verdict actually rendered in this trial was surely
      unattributable to the error.

Id. at 279, 113 S. Ct. at 2081, 124 L. Ed. 2d at 189.        “[A]ny time an

appellate court conducts harmless-error review it necessarily engages in

some speculation as to the jury’s decisionmaking process; for in the end

no judge can know for certain what factors led to the jury’s verdict.” Id.

at 284, 113 S. Ct. at 2084, 124 L. Ed. 2d at 192. (Rehnquist, C.J.,

concurring).
                                     17

      The State must “prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained” for it to

establish harmless error. Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17

L. Ed. 2d at 710.     We are required to follow a two-step analysis to

determine whether the State has met its burden. Yates, 500 U.S. at 404,

111 S. Ct. at 1893, 114 L. Ed. 2d at 449; State v. Hensley, 534 N.W.2d

379, 383 (Iowa 1995). The first step of the analysis requires us to ask

what evidence the fact finder actually considered to reach its verdict.

Yates, 500 U.S. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. We do

not conduct a subjective inquiry into the fact finder’s mind when doing

so. Id. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449.

      In the second step of the analysis, we weigh the probative force of

that evidence against the probative force of the erroneously admitted

evidence standing alone. Id. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at

449. Again, we cannot inquire subjectively into the fact finder’s mind.

Id. at 404–05, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. We are required

to ask whether the force of the evidence “is so overwhelming as to leave it

beyond a reasonable doubt that the verdict resting on that evidence

would have been the same” without the erroneously admitted evidence.

Id. at 405, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. “It is only when the

effect of the incorrectly admitted evidence is comparatively minimal to

this degree that it can be said . . . there is no reasonable possibility that

such evidence might have contributed to the conviction.” Hensley, 534

N.W.2d at 383 (citing Yates, 500 U.S. at 404–05, 111 S. Ct. at 1893–94,

114 L. Ed. 2d at 449, and Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17

L. Ed. 2d at 710).

      Here, the district court considered the admissible certified abstract

of Kennedy’s driving record and the inadmissible affidavits of mailing and
                                    18

attachments to find Kennedy’s license was revoked at the time of his

arrest.   If we compare the probative force of the admissible certified

abstract with the probative force of the inadmissible affidavits, the effect

of the erroneously admitted evidence is comparatively minimal to such a

degree that we can say there is no reasonable possibility such evidence

might have contributed to the conviction.
      We reach this conclusion because the admissible certified abstract
contained the same information as the inadmissible affidavits.          The
certified abstract contained the effective date of the revocation for the
OWI chemical testing refusal, the effective date of the revocation for the
OWI chemical testing failure, and the effective date of the revocation for
the OWI conviction.        The certified abstract also indicated these
revocations were in effect at the time Kennedy was arrested.            The
information contained in the admissible certified abstract of driving
record was sufficient to convict Kennedy of driving under revocation in
violation of Iowa Code section 321J.21 without the need for the district
court to consider the inadmissible affidavits of mailing. Therefore, the
inadmissible affidavits of mailing did not have an effect on the verdict
and the district court’s admission of the affidavits of mailing constituted
harmless error.
      VIII. Disposition.
      The district court properly admitted the certified abstract of driving
record over Kennedy’s objections. Although the district court should not
have admitted the affidavits of mailing and attachments over the
Confrontation Clause objections, we find their admission into evidence to
be harmless error.    Therefore, we affirm the decision of the court of
appeals and the judgment of the district court.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
