from the Iowa District Court for Polk County, Richard G.
Blane II (trial), Judge, and Carol S. Egly (motion to
dismiss), District Associate Judge.
defendant appeals his conviction challenging the court's
denial of his motion to dismiss and his objection based on
prosecutorial misconduct. AFFIRMED.
L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Aaron Rogers, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Blane, S.J., takes no part.
Davisson appeals his conviction for operating a motor vehicle
without owner's consent, in violation of Iowa Code
section 714.7 (2013). Davisson claims the district court
erred in denying his motion to dismiss on speedy indictment
grounds and in overruling his objection to a portion of the
State's closing argument, which he asserts shifted the
burden of proof onto him. Because the State dismissed the
original complaint in furtherance of justice, the speedy
indictment requirements were not violated. Further, the
State's comment during closing argument regarding a lack
of exculpatory evidence did not shift the burden onto
Davisson. We affirm.
Background Facts and Proceedings
April 7, 2015, a truck was reported stolen in Madrid. On
April 9, two Des Moines Police Department officers located a
truck that matched the description of the one reported stolen
and had an identical license plate number. The officers
observed the driver, Davisson, exit the truck and enter a
convenience store. The officers entered the store and
arrested Davisson. Davisson told them he had borrowed the
truck from a friend named "Nate."
April 9, the State charged Davisson with theft in the first
degree by preliminary complaint. On May 22, shortly before
the speedy indictment period was set to run, the State file a
notice of intent not to prosecute, which requested the theft
charge be dismissed without prejudice due to "a lack of
evidence to continue prosecution." The district court
granted the State's motion, citing the reasons in the
State's motion and Iowa Rule of Criminal Procedure
2.33(1). On June 22, the State by trial information charged
Davisson with operating a vehicle without owner's
consent. On July 17, Davisson filed a pro se motion to
dismiss, which was amended through counsel on July 23.
Davisson's motion claimed the charge fell outside the
speedy indictment period allotted by rule 2.33(2)(a). The
State did not file a written resistance; however, the
district court allowed the State to resist orally at the
hearing on the motion to dismiss and gave Davisson an
opportunity to respond in writing after the hearing. The
district court found the prior dismissal was in the interest
of justice and denied Davisson's motion to dismiss.
case proceeded to a jury trial. Davisson did not testify. In
the rebuttal portion of its closing argument, the State noted
that, although Davisson had told the arresting officers he
borrowed the car from someone named Nate, he did not call
anyone by that name to testify at trial. The district court
overruled Davisson's objection to this statement. On
September 17, the jury convicted Davisson. Davisson appeals.
Standard of Review
review motions to dismiss a trial information for errors at
law. State v. Petersen, 678 N.W.2d 611, 613 (Iowa
2004). We review rulings on evidentiary objections for an
abuse of discretion. State v. Sallis, 574 N.W.2d 15,
16 (Iowa 1998).
Motion to Dismiss
claims the district court erred in denying his motion to
dismiss the State's trial information. Specifically, he
argues the State subverted speedy indictment rules because
dismissal of the theft charge was not "in furtherance of
justice" and he was recharged with the same offense
based on the same incident. The State argues the dismissal
was appropriate because it was based on a lack of evidence to
prosecute and the State retained the opportunity to gather
more evidence and refile.
The court, upon its own motion or the application of the
prosecuting attorney, in the furtherance of justice, may
order the dismissal of any pending criminal prosecution, the
reasons therefor being stated in the order and entered of
record, and no such prosecution shall be discontinued or
abandoned in any other manner. Such a dismissal is a bar to
another prosecution for the same offense if it is a simple or
serious misdemeanor; but it is not a bar if the offense
charged be a felony or an aggravated misdemeanor.
explaining what grounds qualify for dismissal under rule
2.33(1), our supreme court has "said that
'furtherance of justice' under rule [2.33(1)]
includes 'facilitating the State in gathering evidence,
procuring witnesses, or plea bargaining.'" State
v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citation
omitted). The State requested dismissal based on a lack of
evidence, and the district court cited that reason in
granting the motion. A lack of evidence and the opportunity
for further evidence-gathering is a factor our supreme court
has identified as proper grounds for dismissal in furtherance
of justice. See id. Accordingly, we find the
dismissal of the theft charge without prejudice was
appropriate under rule 2.33(1). Because theft in the first
degree is a felony,  the State was not barred from refiling
charges against Davisson at a later date. See Iowa
R. Crim. P. 2.33(1). Therefore, we affirm the district
court's denial of Davisson's motion to
also asserts the district court erred in overruling his
objection to a portion of the State's closing argument.
Davisson claims the State committed prosecutorial misconduct
by improperly commenting on his decision not to present
evidence to support his defense, thereby shifting the burden
of proof onto him. The State contends there was no
order to receive a new trial, a defendant must show both
misconduct on the part of the prosecutor and prejudice
resulted. State v. Bishop, 387 N.W.2d 554, 562 (Iowa
1986). While our supreme court has expressed concern about
prosecution comments relating to a defendant's failure to
produce evidence, such comments are generally allowed as long
as they do not focus on a defendant's decision not to
testify. See id. at 563 ("A prosecutor may
properly comment upon the defendant's failure to present
exculpatory evidence, so long as it is not phrased to call
attention to the defendant's own failure to
testify."). Additionally, prosecution comments that are
aimed at exposing a lack of evidence to support a
defendant's general theory or a particular proposition
are not improper. State v. Hanes, 790
N.W.2d 545, 556-57 (Iowa 2010) (citing United States v.
Emmert, 9 F.3d 699, 702-03 (8th Cir.1993) and State
v. Swartz, 601 N.W.2d 348, 353 (Iowa 1999)).
Davisson takes issue with prosecutor's statement during
closing arguments referring to his claim that he borrowed the
truck from a person named Nate:
We have subpoena power and we bring people in, people that
exist, to testify about this. Defense counsel also has an
opportunity, if they bring forth an idea like mistake of
fact, to bring people in, to subpoena people, to subpoena
people like Nate. . . . It's ...