from the Iowa District Court for Warren County, Kevin A.
Parker, District Associate Judge.
defendant appeals his conviction for criminal mischief in the
R. Stockdale, Windsor Heights, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
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
Facts and Prior Proceedings
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."
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."
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
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
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
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
DerekCMills@Yahoo.com email address.
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
DerekCMills@Gmail.com 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 DerekCMills@Yahoo.com.
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