                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0027
                               Filed April 5, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RODERICK WARD,
     Defendant-Appellant.
________________________________________________________________


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

Dalrymple, Judge.



       Roderick Ward appeals from his conviction following jury trial for second-

degree murder. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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DANILSON, Chief Judge.

       Roderick Ward appeals from his conviction following jury trial for second-

degree murder in violation of Iowa Code section 707.3 (2014). Ward contends

the district court abused its discretion in allowing testimony by a jailhouse

informant and a shotgun demonstration at trial. Because we find the district court

did not abuse its discretion, we affirm.

       I. Background Facts & Proceedings.

       On August 1, 2014, Ward and his girlfriend, Katelyn Randall, invited

people to their home for a gathering. The decedent, Gary Wilson; Ward’s uncle,

Reggie Taylor; and Taylor’s wife were in attendance along with a number of other

individuals.   Wilson arrived at Ward’s home in the afternoon, and Ward and

Wilson were drinking alcoholic beverages throughout the day. The gathering

continued through the evening and night. Ward and Wilson continued drinking.

Wilson began acting obnoxious and aggressive, attempting to pick fights. Wilson

did not get physical with anyone but his behavior began to anger Ward.

       After most of the people had gone—only Ward, Wilson, Randall, Taylor,

and Taylor’s wife remained—Wilson’s behavior continued and Ward became

more angry. Ward raised his voice at Wilson and told him to leave. Ward held a

shotgun as Ward and Wilson continued exchanging words.

       Randall testified she saw Wilson in the street in front of the house and

Ward holding the shotgun and moving toward Wilson. Randall stated she turned

to go inside because she “didn’t want to see it if something were to happen.” As

Randall reached the front door, she heard gunshots.       Randall turned to see

Wilson and Ward both lying in the street. She believed Ward had fallen down.
                                          3


       Taylor was also outside at the time. Taylor testified he was searching for

a cigarette inside his truck when he heard the gunshots and ducked for cover.

When he looked up, Taylor saw Wilson lying in the street. Taylor also saw Ward

running from the scene.

       Randall stated after she heard the gunshots she went inside to check on

her children. Randall testified she saw Ward come into the house, retrieve a

Denver Broncos blanket from the living room, leave the house, and retreat down

the street.

       Police and paramedics arrived on the scene and made lifesaving efforts,

but Wilson did not survive his injuries.      Police located five empty 12-gauge

shotgun shells and a cell phone in the street near Wilson. The medical examiner

testified Wilson sustained three gunshot wounds—one to the left forearm and two

to the abdomen. The medical examiner stated the wounds were caused by a

shotgun that was likely fired at fairly close range.

       Ward was not at the house when police arrived, but later approached the

line of police tape securing the scene. Officers detained Ward for questioning.

The cell phone discovered in the street rang when officers called the number

Ward provided during the interview. Bloodstains found on the pants Ward was

wearing at the time he was detained matched Wilson’s DNA.

       The next morning a man walking along the street near Ward’s house

found a 12-gauge pump-action shotgun wrapped in a Denver Broncos blanket

hidden in some bushes and alerted police. DNA testing confirmed several spots

of blood on the shotgun matched Wilson.
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      On September 8, 2014, Ward was charged by trial information with first-

degree murder in violation of Iowa Code section 707.2(1)(a). Before trial, Ward

spoke to Trevino Fox, another inmate in jail. At the jury trial beginning October

20, 2015, Fox testified Ward told Fox he shot Wilson with a “shotgun pump.”

Over defense counsel’s objection, Fox further testified regarding Ward’s plan to

threaten witnesses:

             Q. Did you have a discussion with Roderick Ward about
      [Randall] not testifying? A. Yes, sir.
             Q. Can you describe those conversations?
             ....
             A. he said that she was coming to testify and he didn’t—he
      thought that her testimony would be very damaging to the case.
             Q. And did—can you describe any further conversations you
      had about—with Roderick Ward about his baby mama testifying in
      this case? A. He said that he wanted, you know, to get rid of her.
      He said that he had—it was a plot for her, she was supposed to
      come visit him on a Friday, and then he was supposed to have
      someone follow her.
             ....
             Q. Did Mr. Ward tell you that—what he was going to have
      done when his babies’ mother visited him on that Friday? A. He
      said he wanted her to disappear, you know. He said he didn’t want
      nothing, you know, have nothing to do with her. Said he was going
      to make sure she didn’t show up to testify.
             ....
             Q. After that did—or at that point did Roderick Ward make
      any comments about his uncle in Chicago?
             ....
             A. He said that he had made a phone call and said that he
      was going to have some friends of his holler at the uncle.
             Q. And in—what’s “holler” mean to you? A. Well he was
      going to apply pressure to keep him from testifying.

      The jury found Ward guilty of the lesser-included offense of second-

degree murder. Ward now appeals.
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       II. Standard of Review.

       “We review the district court’s evidentiary rulings for abuse of discretion.”

State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).               “A court abuses its

discretion when it exercised its discretion on ‘grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’” State v. Helmers, 753 N.W.2d

565, 567 (Iowa 2008) (citations omitted).

       III. Analysis.

       A. Informant Testimony. Ward contends the district court should not have

permitted Fox’s testimony with respect to Ward’s statements that he intended to

threaten Randall and Taylor because it was irrelevant and the probative value

was substantially outweighed by the danger of unfair prejudice.1

       Ward first argues Fox’s testimony was irrelevant. Evidence is relevant if it

has “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.        Irrelevant evidence is not

admissible. Iowa R. Evid. 5.402. “The standard for relevance is a relatively low

bar . . . .” State v. Neiderbach, 837 N.W.2d 180, 238 (Iowa 2013) (Appel, J.,

concurring specially).


1
  To the extent Ward argues admission of other portions of Fox’s testimony was
improper, error was not preserved because defense counsel did not object to other
portions at trial. Ward contends error was preserved by filing and obtaining a ruling on
the motion in limine. The general rule is that obtaining a ruling on a motion in limine
does not preserve error, but “a defendant need not renew his objections at trial if the
prior ruling amounts to an unequivocal holding concerning the issue raised.” State v.
Harlow, 325 N.W.2d 90, 91 (1982). Here, the motion in limine addressed only “[a]ny
testimony from witnesses about alleged statements made by Roderick Ward about
efforts to have witnesses not appear for trial.” The motion in limine did not request
suppression of Fox’s testimony as a whole. Objections at trial were necessary to
preserve error.
                                          6


         Ward contends defense counsel admitted in the opening statement Ward

shot Wilson and the only issue in dispute was the existence of malice

aforethought and premeditation. Thus, Ward argues Fox’s testimony was not

relevant to the issues of consequence to the determination of the action. We

disagree.     Defense counsel never directly stated Ward shot Wilson in the

opening statement, and the State was required to prove the elements of the

crime.    In order to establish Ward’s guilt for the crime charged—first-degree

murder—the State was required to show Ward killed Wilson “willfully,

deliberately, and with premeditation.” Iowa Code § 707.2. Ward’s discussion of

threatening witnesses has the tendency to make Ward’s guilt and his connection

to the crime more probable. Thus, Fox’s testimony relaying statements by Ward

about preventing witnesses from testifying at trial was relevant to the elements of

the crime charged.

         Ward also contends the probative value of Fox’s testimony is outweighed

by the danger of unfair prejudice. “Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” Iowa R. Evid. 5.403.

         Our supreme court has held “[a]n attempt by a party to improperly, even

illegally, influence a witness is thought to be an admission by conduct. Such an

admission does have independent probative value on the issue to be tried.”

State v. Stufflebeam, 260 N.W.2d 409, 412 (Iowa 1977). Thus, Fox’s testimony

regarding Ward’s threats to witnesses has probative value.          However, the

probative value must be balanced against the potential for unfair prejudice.
                                         7


       “Evidence is unfairly prejudicial if it has ‘an undue tendency to suggest

decisions on an improper basis commonly, though not necessarily, an emotional

one.’” State v. Putman, 848 N.W.2d 1, 14 (Iowa 2014) (citation omitted). Ward

argues the testimony was unfairly prejudicial because the jury could conclude the

defendant was a bad person because he made threats to influence witnesses

and jump to the conclusion he was guilty of murder. Although such evidence

may well have been prejudicial to Ward if believed by the jury, we cannot

reconcile how the evidence was unfair to Ward if he made such statements

because the evidence still did not lead to a conclusion of the specific crime Ward

committed. However, Ward’s claim fails because even if Fox’s testimony was

unfairly prejudicial its admission constituted harmless error.

       “A trial court’s erroneous admission of evidence is only reversed on

appeal ‘if a substantial right of the party is affected.’” State v. Redmond, 803

N.W.2d 112, 127 (Iowa 2011) (citation omitted); see also Iowa R. Evid. 5.103(a).

“An erroneous evidentiary ruling is harmless if it does not cause prejudice.” Id.

“[P]rejudice occurs when the party has ‘been “injuriously affected by the error” or

. . . has “suffered a miscarriage of justice.”’”   Redmond, 803 N.W.2d at 127

(citations omitted).

       Here, even if it was error to admit the evidence, Ward was not injuriously

affected and has not suffered a miscarriage of justice. We reach this conclusion

for two reasons. First, the jury verdict finding Ward guilty of the lesser-included

offense of second-degree murder indicates the jury did not jump to the

conclusion Ward was guilty of murder in the first degree, but rather carefully

considered the facts and reached a verdict it deemed to be just.
                                          8


         Second, the record contains overwhelming evidence supporting Ward’s

conviction. Ward was seen holding a shotgun and approaching Wilson angrily

seconds before the shots killing Wilson were fired; Ward was seen retrieving a

Denver Broncos blanket and fleeing the scene; a shotgun matching the weapon

that caused Wilson’s wounds was found wrapped in a Denver Broncos blanket

near Ward’s home; Wilson’s blood was found on the shotgun; a spot of Wilson’s

blood was also found on Ward’s pants; and Ward’s cell phone was found in the

street near Wilson’s body.     Even without Fox’s testimony, there is significant

evidence supporting the jury’s verdict. Thus, even if the testimony was unfairly

prejudicial, admission of the testimony was harmless error. We also note Ward

did not request a limiting instruction with respect to Fox’s testimony.          See

Stufflebeam, 260 N.W.2d at 413 (“If [the] defendant wishes evidence admissible

for one purpose limited to such purpose, he must ask for instruction so limiting

it.”). We conclude the district court did not abuse its discretion in permitting Fox’s

testimony at trial.

         B. Shotgun Demonstration. Ward also contends the district court abused

its discretion in allowing a State’s witness to demonstrate how the shotgun was

fired.   Ward argues the demonstration of firing all five shells in the shotgun

resulted in unfair prejudice because it could have given the jury misleading

impressions about the manner in which the shells were ejected and the fast pace

at which Ward could have fired the shotgun.

         Defense counsel raised these same objections at trial. The district court

found that the difference in shell ejection between the dummy shells and real

shells could be addressed on cross examination, and did not render the
                                          9


demonstration unfairly prejudicial. The court also found the demonstration would

be unfairly prejudicial if used as an example of the pace at which Ward could fire

the five shells. On this understanding, the court limited the manner in which the

demonstration could be carried out, explaining to the witness:

             I just don’t want you to rack through five of them in any—
       when I say with speed, I don’t want you to do it in a speedy fashion
       in any way, shape, or form that would imply to this jury some
       manner in which it can be done quickly. I only want them to
       understand the mechanism.

       The State asserts demonstration of the pump-action shotgun was highly

probative and performed in a manner to minimize the potential for unfair

prejudice. As explained in Ward’s appellate brief, this case involved a question

as to Ward’s degree of guilt and “whether Ward intentionally shot Wilson in the

abdomen or [if] it was an accident partially caused by Ward’s recklessness.” The

specific shotgun used required a “pump” action between each shot, raising doubt

that multiple shots to Wilson could have been an accident. Demonstration of the

mechanism of the weapon was probative of the degree-of-guilt issue.

“Demonstrative evidence is usually received if it affords a reasonable inference

on a point in issue.” State v. Thornton, 498 N.W.2d 670, 674 (Iowa 1993).

       Further, the demonstration was carried out in the limited manner as

ordered by the court. The witness paused between firing each dummy shell

waiting for the State to request the firing of the next shell. This appropriately

limited the possibility the jury would infer the pace at which Ward could have fired

the weapon five times consecutively. Further, as the State asserts, the dummy

shells did not make a loud noise or fire any projectiles, limiting the possibility the

jury would feel unsafe or fearful during the demonstration. As such, we conclude
                                        10


the demonstration was not unfairly prejudicial and the district court did not abuse

its discretion in allowing the demonstration for the limited purpose of exhibiting

the mechanism of the weapon.

      IV. Conclusion.

      Because we find the district court did not abuse its discretion in permitting

Fox’s testimony and the shotgun demonstration at trial, we affirm.

      AFFIRMED.

      Vogel, J., concurs; Vaitheswaran, J., concurs specially.
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VAITHESWARAN, Judge (concurring specially)

       I specially concur in the majority’s conclusion that the gun demonstration

“was not unfairly prejudicial and the district court did not abuse its discretion in

allowing the demonstration for the limited purpose of exhibiting the mechanism of

the gun.” I would conclude the probative value of the evidence was minimal. The

State presented extensive evidence of Ward’s intent, including his anger towards

Wilson, his decision to retrieve the shotgun, and his exchange of words with

Wilson. The State did not need to demonstrate use of the 12-gauge shotgun to

establish the element of intent.

       On the other side of the coin, the gun demonstration had the potential to

goad the jurors into overmastering hostility. See State v. White, 668 N.W.2d 850,

855 (Iowa 2003). The sergeant who performed the demonstration showed the

jury what was required to fire each shell, described the sound that would be

heard with each click of the gun, and testified the shotgun would have to be

“snap[ped] [] back pretty good,” to eject.       I would conclude the negligible

probative value of the evidence was substantially outweighed by the danger of

unfair prejudice. See Iowa R. Evid. 5.403.

       Nonetheless, I concur in the result because I believe any error in the

erroneous admission of the gun demonstration evidence was harmless. See

State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005) (finding harmless error in the

erroneous admission of prejudicial evidence based in part on the overwhelming

evidence of guilt).
