from the Iowa District Court for Monona County, Patrick H.
appeals his conviction for operating while intoxicated.
R. Goodman of Goodman Law Firm, LLC, Sioux City, for
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
Hergenrader appeals his conviction and sentence for the crime
of operating while intoxicated, first offense. First,
Hergenrader argues his booking video should have been
admitted in its entirety with sound, citing Iowa Rule of
Evidence 5.106. Second, Hergenrader argues the video, The
Truth is in the Eyes, should not have been admitted as a
demonstrative exhibit because the State did not lay a proper
foundation and it was irrelevant and unfairly prejudicial.
Since defense counsel conceded the audio was not critical to
Hergenrader's defense, we find the district court did not
abuse its discretion by playing the entire booking video
without audio. In addition, we find the district court did
not abuse its discretion by admitting the demonstrative
Background Facts and Proceedings
1, 2016, in the late afternoon, Sergeant Michael Kober with
the Iowa State Patrol pulled over a vehicle for speeding;
Hergenrader was the driver. Sergeant Kober testified he
noticed some empty beer bottles on the floorboard behind the
driver's seat and detected "a slight odor of alcohol
coming from the vehicle."
Kober administered the horizontal gaze nystagmus (HGN) test
and found Hergenrader scored four out of six clues indicating
intoxication. Additionally, Sergeant Kober had Hergenrader
perform the walk-and-turn and the one-leg-stand field
sobriety tests. Sergeant Kober determined Hergenrader failed
both of those tests. Hergenrader was then transported to the
county jail where he provided a breath sample, which revealed
his blood alcohol content was .094 percent.
was charged with the offense of operating while intoxicated,
first offense. A jury trial was held from June 6 to 9, 2017.
On July 21, 2017, Hergenrader was convicted and sentenced to
thirty days in jail, with twenty-eight of those days
suspended; ordered to complete Drinker Driving School;
ordered to pay fines plus surcharges; placed on a one-year
probation; and ordered to receive a substance abuse
evaluation. Additionally, Hergenrader's privilege to
operate a motor vehicle was suspended for 180 days.
Standard of Review
review a district court's ruling on the admissibility of
evidence based on Iowa Rule of Evidence 5.106 for an abuse of
discretion. State v. Austin, 585 N.W.2d 241, 243
(Iowa 1998). "We find an abuse of discretion only when
the party claiming such shows that the court exercised the
discretion on grounds or for reasons clearly untenable or to
an extent clearly unreasonable." State v.
Maghee, 573 N.W.2d 1, 5 (Iowa 1997). Furthermore,
"[a]dmission or exclusion of demonstrative evidence
rests largely within the trial court's discretion;
therefore, we will not interfere unless the trial court has
abused that discretion." State v. Thornton, 498
N.W.2d 670, 674 (Iowa 1993).
Admissibility of ...