                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0386
                            Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMIE DEAN TRICKEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      The defendant appeals from the judgment and sentence for convictions of

burglary in the first degree and sexual abuse in the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli (until

withdrawal) and Vidhya K. Reddy, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall and Kevin Cmelik,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

       Jamie Trickel appeals from the judgment and sentence for his convictions

of burglary in the first degree and sexual abuse in the second degree.           He

maintains the district court abused its discretion by admitting into evidence over

his objection three photographs recovered from his phone as well as testimony

that there were 1100 photographs of a similar nature recovered. He maintains

the evidence was irrelevant and unduly prejudicial.

       Because the images recovered from Trickel’s phone and the testimony of

the forensic examiner were relevant, and the probative value of the evidence

substantially outweighed the danger of prejudice, the district court did not abuse

its discretion in admitting the evidence. We affirm.

I. Background Facts and Proceedings.

       On May 2, 2014, Trickel was charged by trial information with burglary in

the first degree, in violation of Iowa Code sections 713.1 and 713.3 (2013), and

sexual abuse in the second degree, in violation of sections 709.1 and 709.3.

       The matter proceeded to trial on December 15, 2014.

       At trial, V.D. testified that she was living in Davenport with her daughter on

March 27, 2014. That night, V.D. and her daughter were at home when her

brother, Todd, stopped by at approximately 9 p.m. in order to say goodbye before

he left for military training.

       After leaving V.D.’s home, Todd went to say goodbye to their brother,

Tyson. At 9:16 p.m., while he was with Tyson, Todd received a phone call from

Trickel.   Todd testified that it was odd to receive a phone call from Trickel

because they usually did not contact each other. During the seven-minute call,
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Trickel asked Todd if he was at V.D.’s home. Todd told him he was with Tyson

at Tyson’s place of employment. Trickel—who lived approximately one block

from V.D.—indicated that he had seen Todd at V.D.’s earlier and asked what he

planned to do for rest of the night. Todd stated that he had to pack before

leaving for training, and the phone call ended.

      At approximately 9:40 p.m., V.D.’s dog began growling and scratching at

the back door. When V.D. opened the door to let the dog outside, she was met

by a man pointing a gun at her. V.D. testified the intruder was wearing a knit ski

mask, a dark hooded sweatshirt, dark-colored Dickie’s or work pants, black

tennis shoes, and light blue rubber gloves.

      Motioning with the gun, the intruder walked V.D. back into her home and

accused her of owing Rico lots of money. After V.D. denied knowing anyone

named Rico, the intruder told V.D. that her “baby daddy” Chris owed Rico a lot of

money and asked where Chris lived. The intruder threatened to come back to

V.D.’s home again and stated he knew where her mother and brothers lived.

V.D. told the intruder where Chris lived. Instead of leaving, the intruder asked

V.D. if she had any shoes. She showed him her shoe rack, and the intruder

asked V.D. to put on a pair of gray high-heeled shoes. After she put them on, the

intruder pulled out a dark blue Samsung phone, put the phone over her feet, and

stated, “My boss has a fetish.” V.D. believed he was taking pictures although

she did not see a camera flash.

      The intruder then told V.D. to face the door behind her. When she turned

around, she felt a shock on her right side that made her fall to the floor. Once

she was on the ground, the intruder climbed on top of her and kissed her. He
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slapped her, and when she twitched, she was shocked again—this time on the

left side. The intruder removed her pants and underwear and touched her vagina

with his gloved finger. He also rubbed her vagina with his penis. After that, the

intruder redressed V.D. and left.

       V.D. then called her friend, Donna. Donna and her husband picked up

V.D. and her daughter to stay at their house for the night. V.D. recounted the

incident to Donna.

       When V.D. returned home the next day, March 28, she observed that her

back porch light had been unscrewed and the back door was damaged.

       Tyson also testified at trial. He testified that Trickel called him on the

afternoon of March 28. Trickel told him he saw a man at Wal-Mart who indicated

that V.D.’s ex-boyfriend, Chris, “owes a lot of people money, and they were going

to send a message.”       Shortly thereafter, Trickel picked Tyson up from his

apartment and they went to V.D.’s home. When they arrived, V.D. came outside

to talk to them. V.D. and Tyson testified that Trickel asked V.D. if she knew

anyone named Rico and if she knew that Chris owed Rico money.

       Trickel testified at trial as well. His testimony differed in that he stated he

called Tyson on March 28 to ask if he wanted to “hang out for a little bit.” Trickel

testified that it was Tyson’s idea to go see V.D. at her home that afternoon. He

testified that Tyson and V.D. talked at V.D.’s house, but he was not part of the

conversation and did not know what they discussed.

       All three testified that at some point during the conversation on the

afternoon of March 28, V.D. and Tyson left Trickel outside while they went inside

the house to talk. While inside, V.D. told Tyson about the incident the night
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before and that she believed Trickel was the intruder. She testified that she

recognized his voice and his eyes from the previous night.

      Shortly thereafter, Tyson and Trickel left. Tyson told Trickel about V.D.’s

accusations, and Tyson testified Trickel told him that he and his wife were at

Wal-Mart the night before from 8:15 to 10 p.m.

      On March 29, V.D. reported the incident to the local police. She reported

that she believed Trickel was the perpetrator.

      The police executed a search warrant of Trickel’s residence on April 21,

2014. During the search, the police recovered a blue Galaxy Samsung cellular

telephone, a semi-automatic Glock handgun, two different types of stun guns, a

black ski mask, a black hooded sweatshirt, a dark blue hooded sweatshirt with a

decal, black tennis shoes, and a box of light blue latex gloves.          Forensic

examination of the cellular telephone did not recover any photographs of V.D.

wearing the gray high-heeled shoes.      The examiner did recover “over 1100”

photographs with “the common feature [of] the presence of high heeled shoes.”

Trickel objected to the examiner’s testimony regarding the number of images as

well as the three images that were admitted as exhibits.

      Both Trickel and his wife testified that Trickel was home the entire night of

March 27, 2014.     They testified they spent time together earlier in the day,

searching for a job for Trickel until approximately 5:30 p.m. Upon their return

home, Trickel watched television in the couple’s bedroom, while his wife went to

the grocery store and then made the family dinner. They ate at approximately 7

or 7:30 p.m. Afterward, their two children played video games in their room while
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Trickel watched television in the couple’s bedroom until his wife joined him for

bed at approximately 9:45 p.m.

      On December 19, 2014, the jury returned a verdict finding Trickel guilty of

both counts. He was sentenced to two concurrent terms of incarceration not to

exceed twenty-five years.

      Trickel appeals.

II. Standard of Review.

      We generally review evidentiary rulings for an abuse of discretion. State

v. Helmers, 753 N.W.2d 565, 567 (Iowa 2008). The district court has abused its

discretion when it exercises it “on ground or for reasons clearly untenable or to

an extent clearly unreasonable.” Id.

III. Discussion.

      Over Trickel’s objections, the State sought to admit three exhibits of

photographs recovered from Trickel’s phone. The images are of women wearing

dresses and high-heeled shoes. In two of the images, a woman is sitting on a

couch indoors.     In the third, a woman is crouching outside on a path.

Additionally, after having the photos admitted, the prosecuting attorney asked the

forensic examiner if they were “exemplary of any other screen shots or any other

files” found on the device. The prosecuting attorney then specified, “And what

is—is the exemplary feature that is the common feature the presence of high

heeled shoes?”     The forensic examiner agreed and stated over 1100 such

images were recovered.      Trickel maintains this was an abuse of the court’s

discretion because the evidence is irrelevant and unduly prejudicial.
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       Irrelevant evidence is not admissible. Iowa R. Evid. 5.402.       Relevant

evidence is defined as “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.” Iowa R. Evid. 5.401.

       Even relevant evidence should not be admitted when “its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of issues,

or misleading the jury.” Iowa R. Evid. 5.403. “We employ a two-part test to

decide whether evidence should be excluded under the rule.” State v. Huston,

825 N.W.2d 531, 537 (Iowa 2013). “First, we consider the probative value of the

evidence. Second, we balance the probative value against the danger of its

prejudicial or wrongful effect upon the triers of fact.” Id. (citation and internal

quotation marks omitted). “A determination of the probative value of relevant

evidence focuses on the strength and force of the tendency of the evidence to

make a consequential fact more or less probable.” Graber v. City of Ankeny, 616

N.W.2d 633, 638 (Iowa 2000) (citation and internal quotation marks omitted).

“Unfair prejudice arises when the evidence prompts the jury to make a decision

on an improper basis.” Id.

       Even if irrelevant evidence is admitted, reversal is only required when a

“substantial right of the party is affected.” Id.; see also Iowa R. Evid. 5.103(1).

However, we presume prejudice from the admission of irrelevant evidence.

Graber, 616 N.W.2d at 638. Accordingly, we reverse unless the record shows a

lack of prejudice. Id.

       Here, we cannot say the district court abused its discretion by admitting

the photos and the forensic examiner’s testimony about the number of similar
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photos found on Trickel’s cellular telephone.      Identity and motive were both

issues at trial. V.D. testified that the masked intruder asked her to put on high-

heeled shoes before he sexually assaulted her. The fact that Trickel had 1100

images of women wearing high heels on his phone was a relevant fact for the

jury to consider when deciding the identity of the masked intruder.

       Next, we must decide whether the probative value of the evidence

substantially outweighed the danger of unfair prejudice or confusion. See id.

Here, the chance that the jury would use the images for an improper purpose is

low. The images were not the sort to arouse strong emotions. See State v.

Putman, 848 N.W.2d 1, 14 (Iowa 2014) (“Evidence is unfairly prejudicial if it has

an undue tendency to suggest decisions on an improper basis commonly, though

not necessarily, an emotion one.” (citation and internal quotation marks omitted)).

Trickel maintains the State mischaracterized the images by stating, “[T]he import

of these pictures lies on each of the women’s feet.” Trickel maintains such a

statement was prejudicial because “the shoes are hardly the focal point of the

images.” The jury was instructed that “[s]tatements, arguments, questions and

comments by the lawyers” are not evidence.        Additionally, the jury was given a

limiting instruction, stating, “You have heard evidence that the defendant had a

number of images in his phone. Possessing such images is not a crime. This

evidence can only be used to show motive, intent, or the identity of the person

charged.” “[I]n most cases a limiting instruction such as this is an antidote for the

danger of unfair prejudice.” Id. at 15. Additionally, “juries are presumed to follow

the court’s instruction.” State v. Becker, 818 N.W.2d 135, 162 (Iowa 2012).
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       Because the images recovered from Trickel’s phone and the testimony of

the forensic examiner were relevant, and the probative value of the evidence

substantially outweighed the danger of prejudice, the district court did not abuse

its discretion in admitting the evidence. We affirm.

       AFFIRMED.
