                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1904
                                  Filed June 7, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHARY LEE CHURCH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      A defendant appeals his convictions for assault of a peace officer,

possession of a controlled substance with intent to deliver, and operating while

intoxicated. AFFIRMED.



      Benjamin D. Bergmann of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



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


VOGEL, Judge.

      Zachary Church appeals his convictions for assault of a peace officer, in

violation of Iowa Code section 708.3A(4) (2013); possession of a controlled

substance with intent to deliver, in violation of Iowa Code section 124.401(1)(d);

and operating while intoxicated, in violation of Iowa Code section 321J.21.

Specifically, Church claims the district court erred in excluding evidence he

sought to admit regarding the officer’s prior conduct, allowing testimony which

referenced evidence he claims was inadmissible hearsay, and denying his

motion to sever the charges.

      I.     Background Facts and Proceedings

      During the early morning hours of December 25, 2013, a Cedar Falls

police officer was patrolling in his vehicle when he saw a car stopped in the

street. The car’s lights were on; the engine was running, and the officer noticed

one occupant inside.

      After pulling up next to the car, the officer observed a male slumped

forward in the driver’s seat who did not react to the officer’s presence or the

officer’s flashing his flashlight on the occupant. The officer then positioned his

vehicle behind the car. The officer approached the car on foot and noticed the

occupant was still slumped forward. As the driver’s side door was unlocked, the

officer opened the door.    The officer testified that he immediately smelled a

strong odor of alcohol, as well as burnt marijuana. The occupant of the vehicle

began to stir and reach for the ignition. The officer then reached in the car and

removed the keys.
                                         3


       The occupant then sat back, and the officer noticed the occupant had

bloodshot, watery eyes and his face was flush. As the officer believed he was

observing signs of intoxication, he radioed police dispatch and requested another

officer be sent to the scene. After asking the occupant to step out of the car, the

officer requested identification, which the occupant provided.          The officer

identified the man as Church. Because he believed Church may be intoxicated,

the officer walked Church back to the squad car.

       Upon reaching the squad car, the officer opened the rear, passenger-side

door and told Church to have a seat in the car. Rather than doing so, Church

struck the officer in the head with his fist, knocking the officer to his knees. From

that position, the officer grabbed Church around the legs; Church struck the

officer several more times. The officer struggled to get to his feet and attempted

to radio for help. As he was hunched over and still trying to deflect blows from

Church, the officer felt Church pulling on the officer’s gun. Church knocked the

officer on his back, and the officer said, “Stop, or I will shoot you.”      Church

continued to strike the officer; the officer then shot Church once in the torso.

Initially, Church was knocked back by the shot, but then he started moving

towards the officer again. The officer then shot Church two more times. Church

backed up and ran to his vehicle. About that time, several other officers arrived

and detained Church. The officers found marijuana, a scale, plastic bags, and

money in the car. A blood test taken several hours later revealed THC and

alcohol in Church’s system.

       On February 5, 2014, the State charged Church with assault of a peace

officer with intent to inflict serious injury, possession of a controlled substance
                                          4


with intent to deliver, and operating while intoxicated. Prior to trial, Church filed a

motion to sever the assault-of-a-peace-officer count from the other two counts,

claiming the allegations were not part of the same transaction or a common

scheme and good cause existed to sever the charges.                The district court

disagreed and denied the motion.

       At trial, the State sought to admit testimony that referenced the existence

of text messages from Church’s phone suggesting Church was involved in

purchasing and selling marijuana. Church objected to the testimony on hearsay

grounds; the State argued the text messages—which themselves were not

offered into evidence—were not hearsay. Further, the State argued that Church

had opened the door to the introduction of the testimony while cross-examining a

police investigator about the lack of evidence of records or ledgers tracking drug-

distribution activity. The court overruled the objection and allowed the State to

admit the testimony. Church attempted to introduce evidence of other incidences

involving this officer, suggesting he had previously been accused of using

excessive force. The State objected on relevance grounds. The district court

excluded the evidence, concluding it was irrelevant and even if it was relevant, its

probative value was substantially outweighed by the unfairly prejudicial nature of

the evidence.

       On July 6, 2015, the jury found Church guilty of the lesser-included

offense of assault on a peace officer, as well as guilty of possession with intent to

deliver and operating while intoxicated. Church appeals.
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      II.    Scope and Standard of Review

      Generally, we review evidentiary rulings for abuse of discretion. State v.

Tyler, 867 N.W.2d 136, 152 (Iowa 2015). “An abuse of discretion occurs ‘when

the district court exercises its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’” State v. Miller, 841 N.W.2d

583, 586 (Iowa 2014) (quoting Rowedder v. Anderson, 814 N.W.2d 585, 589

(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.”

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

      When an evidentiary ruling admitting evidence challenged as hearsay is

appealed, our review is for correction of errors at law.            See State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003).

      We review rulings on a motion to sever charges for abuse of discretion.

State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992). “To prove the district court

abused its discretion in refusing to sever charges, [the defendant] bears the

burden of showing prejudice resulting from joinder outweighed the State’s

interest in judicial economy.” State v. Elston, 735 N.W.2d 196, 199 (Iowa 2007).

      III.   Exclusion of Past Accusations of Excessive Force

      Church argues the district court erred in excluding evidence he sought to

introduce regarding prior incidences where the officer had been accused of using

excessive force. The State claims this evidence was inadmissible.

      Iowa Rule of Evidence 5.404(b)(1) provides “[e]vidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in in accordance with the character.”
                                        6


However, “[t]his evidence may be admissible for another purpose such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”       Iowa R. Evid. 5.404(b)(2).     To

determine whether prior-bad-acts evidence is admissible, courts undertake a

three-step analysis. State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004).

      The three steps are (1) “the evidence must be relevant and material
      to a legitimate issue in the case other than a general propensity to
      commit wrongful acts”; (2) “there must be clear proof the individual
      against whom the evidence is offered committed the bad act or
      crime”; and (3) if the first two prongs are satisfied, “the court must
      then decide if [the evidence’s] probative value is substantially
      outweighed by the danger of unfair prejudice to the defendant.”

State v. Richards, 879 N.W.2d 140, 145 (Iowa 2016) (alteration in original)

(quoting Sullivan, 679 N.W.2d at 25).

      Church claims he should have been allowed to introduce testimony from

two witnesses: one who would testify that, about fourteen years prior, the officer

had flashed his weapon at the witness while off-duty in an apparent incident of

road rage and one witness who would testify that—seven or eight years prior—

the officer used excessive force against the witness in an incident involving a

taser. Church claims the testimony was admissible because it showed the officer

was prone to aggression and was therefore relevant to the officer’s credibility.

The district court determined the evidence was not relevant, stating: “[T]he court

does not find the issue or the issues under whether it’s modus operandi or motive

or frankly any of the other ones outlined to be relevant. Or if they are relevant,

they are marginally relevant.”

      Upon our review of the record, we agree with the district court.         The

evidence of the alleged past incidences involving the officer are not relevant to
                                          7

any of the acceptable purposes for admitting prior-bad-acts evidence. See Iowa

R. Evid. 5.404(b)(2).    The purposes of admitting the evidence proffered by

Church—proneness to aggression and credibility—are merely repackaged

versions of the improper purpose rule 5.404(b)(1) aims to exclude, that is,

asserting the officer was prone to aggression to show that he acted aggressively

on the night of the altercation with Church. Prior-bad-acts evidence is explicitly

prohibited from admission for this purpose. Accordingly, we discern no abuse of

discretion in the district court’s decision to exclude the evidence.

       IV.    Testimony Regarding the Text Messages

       Church asserts the district court erred in allowing testimony that referred

to text messages sent to Church from various senders that appear to request

Church sell them drugs. Church claims the text messages were hearsay and

should not have been discussed in testimony.1 The State contends the text

messages—which were not offered into evidence—are not hearsay and even if

they are, Church opened the door to their use.

       Iowa Rule of Evidence 5.802 prohibits the use of hearsay evidence unless

an exception applies. Hearsay is defined as an out-of-court statement offered to

prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). If a statement is

offered for a reason other than its truth, it is not hearsay. State v. Dullard, 668

N.W.2d 585, 589–90 (Iowa 2003).



1
  Church also argues discussion of the text messages in testimony violated State v.
Turecek, 456 N.W.2d 219 (Iowa 1990). But, the State did not “place a witness on the
stand who is expected to give unfavorable testimony and then, in the guise of
impeachment, offer evidence which is otherwise inadmissible.” See id. at 225. The
investigator was a favorable witness for the State, and the State did not impeach him;
rather, it elicited testimony to help explain answers given on cross-examination.
                                           8


       At trial, a police investigator2 testified that, after reviewing the drug-related

evidence against Church found in his car, he concluded Church possessed the

drugs for the purpose of distribution and not personal use.                 On cross-

examination, defense counsel questioned the investigator about the lack of other

evidence indicating drug distribution:

              Q. . . . The things that I listed to you that you said were
       indicia of drug trafficking or distribution, were any of those present
       in Zach Church’s case? A. Can you go through them again so I
       can—so we can notate if one of those was?
              Q. Okay. Just stop me. A. Yep.
              Q. Books, records, receipts, notes, ledgers, money orders,
       bank records, currency? A. Correct.
              Q. Safe deposit box keys, telephone calling cards, address
       books, photographs and papers relating to transportation and
       storage, order, sale, and distribution of controlled substances?
       Anything else so far out of that group? A. No.

In response to that exchange, on redirect examination, the State sought

testimony from the investigator regarding the text messages:

               Q. Investigator . . . , you were asked whether there were any
       ledgers or documentation or writing that shows any sales of
       marijuana. Do you remember those questions? A. Yes, I do.
               Q. And in today’s day and age, do people who are selling
       marijuana use their cell phones to keep track of that? A. They use
       their cell phones to conduct their narcotics trafficking.
               Q. Okay. And might they be using text messaging? A. That
       is correct.
               Q. And those text messages would be documentation
       showing sales, wouldn’t they? A. That is correct.
               Q. Would show amounts that are being sold or requested?
       A. Sometimes.
               Q. In fact, in your investigations is it common that you will
       also ask to seize a phone and search a phone? A. That’s correct.
               Q. And is that because there’s information contained on
       those phones that help you determine whether somebody is, in fact,
       selling drugs? A. Absolutely.

2
  Church also objected to testimony from an agent for the Iowa Division of Criminal
Investigation that referenced the text messages. For purposes of our analysis, both
testimonies are addressed as one.
                                         9


              Q. Now in this particular case were you made aware that
       there was, in fact, a search of Mr. Church’s phone? A. That is
       correct.
              Q. And were you made aware that there were text messages
       found on Mr. Church’s phone? A. That is correct.

       We conclude the testimony referencing the text messages was not

hearsay because the text messages themselves were not offered in to evidence,

nor were they quoted in any fashion. Even if they had been, none of the short

messages were offered to prove the truth of the matters asserted.               The

investigator was not testifying regarding the specific content, let alone the

truthfulness of the messages, that is, citing the messages as evidence that the

transactions took place. Rather, the investigator was citing the existence of the

messages as support for his conclusion that Church was distributing drugs

because the messages were the type of records he would expect to find when a

person is distributing drugs. See State v. Elliott, 806 N.W.2d 660, 667 (Iowa

2011) (“Generally, an investigating officer may explain his or her actions by

testifying as to what information he or she had, including its source, regarding the

crime and the criminal.”).

       Even if the testimony about the text messages did constitute hearsay, we

conclude it was proper because Church opened the door to the testimony. “On

occasion, defense tactics which . . . seek to gain extraordinary advantage from

the fact of suppression of certain evidence may . . . be deemed to have ‘opened

the door’ to at least limited receipt of that evidence.” State v. Brockman, 725

N.W.2d 653, 656 (Iowa Ct. App. 2006) (omissions in original) (quoting 6 Wayne

R. LaFave, Search & Seizure § 11.6 at 411 (4th ed. 2004)). “Defense tactics ‘are

most likely to be found to have opened the door if they involved a calculated
                                        10


effort to create a high degree of confusion based upon knowledge that any

adequate explanation would require some reference to evidence previously

suppressed.’”    Id. (quoting LaFave § 11.6 at 412).     Here, defense counsel’s

questions on cross-examination were structured to create the impression there

was no evidence of records indicating Church sold drugs.         Defense counsel

specifically sought testimony about the absence of “records, receipts, notes,

ledgers” and “papers relating to transportation and storage, order, sale, and

distribution of controlled substances” with full knowledge that such evidence

existed in the form of the text messages. See id. This tactic “opened the door”

to the limited discussion of the existence of text messages on redirect

examination to allow the State to alleviate any confusion and to provide adequate

explanation. See id.

       Additionally, we find any error in the admission of the testimony about text

messages was harmless. If an error is deemed harmless, it does not require

reversal. State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009). An error is deemed

harmless if the State can show beyond a reasonable doubt that the error did not

affect the verdict. Id.

       To determine whether the State has met its burden under the
       harmless-error standard, the court employs a two-step analysis.
       First, the court asks what evidence the jury actually considered in
       reaching its verdict. Second, the court weighs the probative force
       of that evidence against the probative force of the erroneously
       admitted evidence standing alone. This step requires the court 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 686–87 (citations omitted).
                                       11


      In reaching its verdict on the possession-with-intent-to-deliver charge, the

jury was presented with the physical evidence found in Church’s car—the scale,

plastic bags, and money, along with the testimony from the police investigator

about his conclusions based on the evidence he had (absent discussion of the

text messages), and the testimony from witnesses who said they purchased

drugs from Church.      The probative force of that evidence taken together is

strong; whereas, the probative force of the referenced text messages is

diminished because it overlapped with testimony from the police investigator—

regarding his conclusion Church was distributing drugs—and with testimony from

the two witnesses who said they had purchased drugs from Church. See State

v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (“[W]e will not find prejudice if the

admitted hearsay is merely cumulative.”). We conclude the State proved beyond

a reasonable doubt the verdict “would have been the same without the

erroneously admitted evidence.”     See id.   Thus, any error in admitting the

testimony about the text messages was harmless.

      V.     Motion to Sever

      Church contends his motion to sever should have been granted because

the assault-of-a-peace-officer charge did not arise from the same transaction or

occurrence   as   the   possession–with-intent-to-deliver   and   operating-while-

intoxicated charges. The State disagrees.

      Iowa Rule of Criminal Procedure 2.6(1) provides:

      Two or more indictable public offenses which arise from the same
      transaction or occurrence or from two or more transactions or
      occurrences constituting parts of a common scheme or plan, when
      alleged and prosecuted contemporaneously, shall be alleged and
      prosecuted as separate counts in a single complaint, information or
                                       12


      indictment, unless, for good cause shown, the trial court in its
      discretion determines otherwise.

In evaluating whether multiple offenses “arise from the same transaction or

occurrence,” courts must determine whether “the facts of each charge can be

explained adequately only by drawing upon the facts of the other charge.” State

v. Bair, 362 N.W.2d 509, 512 (Iowa 1985) (quoting State v. Boyd, 533 P.2d 795,

799 (Or. 1975)). “The test focuses in three ways on how the crimes are linked

together: time, place, and the circumstances.” Id.

      Based upon our review of the record, we agree with the district court that

the assault charge, the possession-with-intent-to-deliver charge, and operating-

while-intoxicated charge arose from the same transaction or occurrence and

thus, simultaneous prosecution of the charges was proper. Many of the same

facts that support the assault charge are relevant to and support the other two

charges. See id. The officer’s presence and initial contact with Church relate

both to the assault charge and the other two charges. Further, the facts that led

the officer to suspect Church may have been under the influence of alcohol and

marijuana explain why the officer was escorting Church back to his squad car

immediately prior to the assault occurring. That Church was under suspicion of

other crimes—operating while intoxicated and possession of marijuana—is also

relevant to Church’s potential motive for the assault. Additionally, the assault

charge and the other two charges are inherently linked by the time, place, and

circumstances that form the factual basis of the charges. See id. Each charge

arose from events which occurred during the same time frame, at the same

location, and under the same circumstances. We find no abuse of discretion in
                                         13


the district court’s determination the assault charge and the other two charges

arose from the same transaction or occurrence.

       While the fact the charges arose from the same transaction or occurrence

supports simultaneous prosecution of the charges, the district court retained the

discretion to sever the charges for “good cause.” Iowa R. Crim. P. 2.6(1); see

Elston, 735 N.W.2d at 199. “To prove the district court abused its discretion in

refusing to sever charges, [the defendant] bears the burden of showing prejudice

resulting from joinder outweighed the State’s interest in judicial economy.”

Elston, 735 N.W.2d at 199.

       Church claims he was prejudiced by the simultaneous prosecution of the

charges because “by successfully convincing the jury that the [sic] Mr. Church

engaged in violation of one of the charges, undoubtedly caused the jury to

unfairly and erroneously consider this determination in convicting him on the

remaining counts.” We disagree. There is no reason to conclude that the jury

necessarily would have concluded Church was guilty of the all the charges solely

based on its conclusion that he was guilty of one of the charges. In fact, the jury

demonstrated its ability to evaluate the charges independently when it found

Church guilty of the possession-with-intent-to-deliver charge and the operating-

while-intoxicated charge but found him guilty of the lesser-included offense of

assault of a police officer rather than the charged crime of assault of a peace

officer with intent to inflict serious injury. Because we do not find Church was

prejudiced by the simultaneous prosecution of the charges, we discern no abuse

of discretion in the district court’s refusal to sever the charges for good cause.
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      VI.    Conclusion

      Because we find no reversible error in the district court’s decisions, we

affirm Church’s convictions.

      AFFIRMED.
