Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
The opinion of the court was delivered by: Danilson, J.
Michael Cross appeals from judgments entered upon his convictions of assault on a police officer while using or displaying a dangerous weapon and possession of a controlled substance. JUDGMENTS VACATED IN PART AND REVERSED IN PART, AND CASE REMANDED.
Considered by Potterfield, P.J., and Danilson and Tabor, JJ.
Michael Cross appeals from judgments entered upon his convictions of assault on a police officer while using or displaying a dangerous weapon, in violation of Iowa Code section 708.3A(2) (2011); operating while intoxicated, in violation of section 321J.2(a) and (c); and possession of a controlled substance, in violation of section 124.401(5). He contends the trial court erred in admitting out-of-court statements he objected to on a number of grounds, and that trial counsel was ineffective in several respects. Because we find the court erred in admitting prejudicial out-of-court statements, we vacate and remand for a new trial on the assault charge. We find insufficient evidence of possession to support the drug charge, we therefore reverse and order that chargebe dismissed.
I. Background Facts and Proceedings.
Just after 11 p.m. on August 6, 2011, Davenport police received information about a shot or shots fired by an individual who fled the fairgrounds as a passenger in a white Blazer. Based on that information, police located a white Blazer and, at 12:06 a.m. on August 7, executed a maneuver referred to as a "plain car intervention." Several unmarked police cars "boxed in" a white Blazer at an intersection in Davenport leading to the Centennial Bridge. The Blazer reversed at sufficient speed to create squealing tires and then lurched forward. At the same time, several plain clothes and uniformed police officers got out of their respective vehicles and approached the Blazer with guns drawn. When the Blazer lurched forward, several shots were fired into the driver side of the Blazer, hitting the driver Michael Cross. The time elapsed from when the unmarked cars surrounded the Blazer to when Cross was removed from the vehicle to the ground was about ten seconds.
Cross was arrested. At the scene Cross admitted, "I'm drunk, sir, I'm sorry, I'm sorry, I'm drunk, I'm sorry." A blood sample collected from Cross tested positive for THC. During a subsequent search of the Blazer, which did not belong to Cross, the police found a small baggie of marijuana inside the console between the driver and passenger seats. Cross was charged with assault on a police officer while displaying a deadly weapon, operating while intoxicated, and possession of marijuana.
Cross filed a motion in limine seeking to preclude the State from referring to the alleged involvement of the Blazer in a shots-fired incident near the fairgrounds, which occurred a half-hour to an hour before Cross's encounter with police near the bridge. The motion in limine was based on claims that the fairgrounds incident was irrelevant, the statements made were hearsay, any relevance of the evidence was outweighed by its prejudicial effect, and the admission of the out-of-court statements would violate the defendant's constitutional confrontation rights. The State resisted, arguing that the fairgrounds incident and the statements made there to officers were not being offered for the truth of the matter, but to explain the officers' subsequent actions. The district court ruled audio and visual recordings from police vehicles would be allowed since they "explain why the officers took the actions they took, both with respect to locate the vehicle, the following of the vehicle operated by the defendant, and the actions taken upon the stop of the vehicle." The court also stated, the credibility of the officers is at issue in connection with the charges against the defendant and so an explanation of the actions that were taken by the officers and why the officers approached the situation in the way they did is relevant to the jury's ultimate credibility determinations regarding what the officers have to testify to with respect to the specific elements of the charges against the defendant.
During the course of the jury trial, Cross pleaded guilty to operating while intoxicated.*fn1 The jury convicted him of possession of a controlled substance and assault on a police officer while displaying a dangerous weapon.
Cross appeals, contending the district court erred in admitting out-of-court statements regarding an alleged shot-fired incident at the fairgrounds over the defendant's objections on hearsay, Iowa Rule of Evidence 5.403, and confrontation rights grounds. If error was not properly preserved, Cross argues trial counsel was ineffective. Cross contends his trial counsel was ineffective in other respects: (1) in not challenging the sufficiency of the evidence that he (a) "intentionally displayed a dangerous weapon in a threatening manner" with respect to the assault charge and (b) "knowingly possessed" a substance with respect to the possession charge; (2) in failing to raise a "weight of the evidence" challenge on the same two elements noted above; and (3) in failing to challenge an erroneous jury instruction defining possession.
II. Scope and Standard of Review.
"Except in cases of hearsay rulings, trial courts have discretion to admit evidence under a rule of evidence." State v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003). We review these other evidentiary rulings for an abuse of discretion. State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). "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. Long, 814 N.W.2d 572, 576 (Iowa 2012) (internal quotation marks and citation omitted).
"We review hearsay rulings for correction of errors at law 'because admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown.'" Elliott, 806 N.W.2d at 667 (quoting State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998)).
Our review of constitutional issues is de novo. State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011) (reviewing ineffective-assistance-of-counsel claim); State v. Schaer, 757 N.W.2d 630, 633 (Iowa 2008) ...