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State v. Mills

Court of Appeals of Iowa

August 15, 2018

STATE OF IOWA, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.

         A defendant appeals his conviction for criminal mischief in the fourth degree.

          Susan R. Stockdale, Windsor Heights, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          TABOR, Judge.

         Overnight, E.S. missed nineteen calls from a blocked number and received a profane text message she attributed to her ex-boyfriend. The next morning on her way to work, E.S. discovered her tire had been slashed. Returning to her driveway, she saw a tire on her housemate's truck had also been punctured. After hearing evidence connecting Derek Mills to the incident, a jury convicted him of criminal mischief in the fourth degree. On appeal, Mills contends the district court improperly allowed five prosecution exhibits into evidence over his authentication and hearsay objections. He further argues his trial counsel's performance fell below professional norms when counsel did not object to other hearsay evidence. Mills also alleges counsel should have objected to testimony from State's witnesses who insinuated Mills was responsible for the tire damage. Because three of the challenged exhibits were improperly admitted and their admission was not harmless, we reverse the conviction and remand for a new trial.

         I. Facts and Prior Proceedings

         In July 2016, E.S. met Derek Mills at the Lucky Gal Tattoo shop where he "did a piercing" for her. Except he told her his name was Derek Wright. E.S. and Mills dated for about two months; during that time E.S. never visited Mills's home, but he came to her place. In early September 2016, E.S. allowed Matt, her brother's friend, to stay with her because he "didn't have anywhere to go." Mills was "not happy" with the arrangement. E.S. told the jury that Mills "got jealous, and ended up telling me that he was coming over."

         E.S. testified she was sleeping the night of September 12, 2016, when she missed multiple calls from a blocked number and a text message she believed to be from Mills saying: "Fuck you!!!! I CAME here for you!! this is how you treat the one man that loved you! Fuck you!! @ you said you loved me!! Lying bitch.!!!" E.S. didn't read the text until the next morning, when she answered, "Okay I suggest you never text or call me again. Psycho."

         E.S. then got ready for work, loaded her six-year-old daughter into the car, and started to drive off-just before the light signaling low tire pressure appeared on her dashboard. E.S. hoped the car's sensor was just being overly sensitive, but she found her tire was "completely flat." As she pulled back into her driveway, E.S. looked over and saw a tire on Matt's truck had been "slashed as well."

         E.S. sent two more text messages to Mills: "Did you slash my mother fucking tire?" and "I will be at your work today." To which Mills answered: "First that wasn't me at all…lol I would never waist [sic] my time knowing you moved on… 2nd I was sleeping so say or do whatever…oh yea I don't work today." E.S. then called the police to report the slashed tires.

         Carlisle police detective Dave Larson spoke with Mills on the telephone a few days later. Mills denied calling or texting E.S. the night of September 12 or morning of September 13. Mills also rejected the idea he was dating E.S., saying she was just a client who "kind of hung around" the tattoo shop.

         Detective Larson followed up by sending subpoenas to several phone companies and email providers. Because E.S. had Verizon phone service, Larson contacted Verizon with her number and asked to have the company identify the blocked number from which she received the flurry of calls. State's Exhibit 1 was a spreadsheet provided by Verizon in response to the subpoena. The spreadsheet showed the unblocked number as the same phone number where the detective had reached Mills. Detective Larson also sent a subpoena to Yahoo, an email service, to verify Mill's account. State's Exhibit 2 was Yahoo's response, including a "business record declaration" and verification of the email address.

         Detective Larson also preserved "screen shots" from E.S.'s cell phone listing Derek's contact information (E.S. knew him by the last name of Wright, not Mills), offered as State's Exhibit 4. In addition, Larson sent a subpoena to a company called Text Me, seeking information about the number in E.S.'s contact list. Exhibit 5 was the return correspondence from Text Me, showing subscriber information linking the phone number in Exhibit 4 with account, provided through Google. Larson then sent Google a subpoena for user records. State's Exhibit 6 was the return, which listed a recovery email of

         After Detective Larson received responses from his subpoenas, he set up an in-person interview with Mills in March 2017. During that conversation, Mills admitted he and E.S. had "gone out a few times." Eventually, Mills told the officer they had discussed moving in together. The detective doubted ...

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