State of Iowa v. Vance Frederick Barton

IN THE COURT OF APPEALS OF IOWA

No. 23-1254
Filed February 19, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

VANCE FREDERICK BARTON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,

Judge.

Vance Barton appeals from his drug convictions claiming prosecutorial

misconduct during closing arguments. AFFIRMED.

William (Bill) Monroe, Burlington, for appellant.

Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant

Attorney General, for appellee.

Considered by Greer, P.J., Langholz, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2025).
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DOYLE, Senior Judge.

Vance Barton appeals from various drug convictions. On appeal, Barton

argues the State committed prosecutorial misconduct during closing arguments

“by repeatedly stating a false narrative.” Finding no prejudicial prosecutorial

misconduct, we affirm.

On a cold January evening, Cedar Rapids police officers Liddle and Green

were on patrol. Liddle testified, “we were patrolling an area that we had been

informed involved some narcotics activity in the area of C Avenue and 42nd Street

Northeast.” As they drove by a residence, they observed a male (later identified

as Barton) standing in a driveway. Green testified Barton was wearing a backpack

and hooded jacket. As they drove by, Barton covered his face and “bladed” 1 his

body from the patrol car. The officers drove around the block and parked at a

place where they could “have a visual” of Barton. A small pickup truck arrived and

pulled into the driveway where Barton was standing. He got in the truck. Another

male came out of a residence and talked to the occupants of the truck and then

went back to his residence. The truck then left. The officers followed. When they

determined the truck’s plates were expired, they initiated a traffic stop. Barton was

in the front passenger seat with a backpack on the floor between his legs. The

driver was female as was the backseat passenger. Barton refused to identify

himself. Liddle went back to the patrol car to check the driver’s information. A K-9

drug team was called. The drug dog did a sniff of the truck and indicated for the

presence of narcotics. The truck and backpack were searched. The backpack

1 Officer Green explained that blading is when one turns their body from your

direction.
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contained cannabis flour, pipes, Ziplock bags of methamphetamine, a bag of

marijuana, a drug kit, and male clothing. During the stop and search, Barton

claimed the backpack was not his. He finally identified himself shortly before being

arrested.

After being charged with various drug crimes, Barton was tried to a jury. He

was found guilty of a drug stamp violation, possession of methamphetamine,

possession of marijuana, and possession of drug paraphernalia. Barton filed a

motion for new trial arguing that, “During the State’s closing argument, the State

referred to the area of the stop and subsequent search being a known drug area,

or something similar.” He noted he had objected and “the Court ruled that the

statement by the State could be considered by the jury because it was not

evidence.” Barton argued, while not evidence, the statement was a material

misrepresentation of the facts and had the practical result of misleading and

confusing the jury. The State resisted and the court denied the motion. After the

judgment and sentence was entered, Barton appealed.

Here’s what happened at trial. In her closing argument, the prosecutor

stated:

So the evidence proves—let’s talk about the facts—that back
on January 12th, 2023, which Officer Liddle told us was a brutally
cold and windy day, the Defendant was standing in the driveway of
a home in an area of town that they watch because of high drug
trafficking.

Barton made no objection. In her rebuttal argument, the prosecutor stated, “What

the defense is presenting is not reasonable. It’s ridiculous, just like this case. The

Defendant is standing in a high narcotic trafficking area.” Barton objected:
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“Objection. That assumes facts not in evidence.” The prosecutor responded that

it was in evidence. The court did not rule on the objection but admonished the jury:

Ladies and gentlemen of the jury, what is important is what you recall
from the evidence that was submitted, the testimony that you heard
from the officers. So rely on your recollection of the testimony as it
came in.
You may proceed.

The prosecutor then went on, “We are where we are in this case, in a high narcotics

trafficking area. The Defendant is wearing a backpack. The drugs were later found

in a backpack.” Defendant made no objection.

In his motion for new trial and motion in arrest of judgment, Barton does not

mention prosecutorial misconduct but argues the prosecutor’s reference “to the

area of the stop and subsequent search being a known drug area, or something

similar,” while not evidence, was “a material misrepresentation of the facts and had

the practical result of misleading and confusing the jury.” At the hearing on the

motion, Barton argued that neither of the police officers actually made statements

to the effect that the officers were investigating in a “known drug area.” He

acknowledged one of the officers did allude to there being some drug activity but

argued the prosecutor’s statement to the jury “not only directly misquoted one of

the officers, but fluffed pretty substantially the second officer’s actual testimony.”

He argued the prosecutor’s statements were misleading. The court overruled and

denied the motion at the hearing. The court entered its judgment and sentence.

On appeal, Barton argues the State committed prosecutorial misconduct

“by repeatedly stating a false narrative that Vance Barton was first sighted by

police officers in a high narcotics or drug trafficking area” when the only testimony

on this point was that an officer had been told of some drug activity. The State
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responds that Barton failed to preserve error because he failed to move for a

mistrial, citing State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011) (“Krogmann

cannot obtain a new trial based on prosecutorial misconduct when he failed to

move for a mistrial at the time.”), State v. Radeke, 444 N.W.2d 476, 479 (Iowa

1989) (“In permitting the case to be submitted to the jury without asserting the

denial of a fair trial by reason of the alleged misconduct, defendant’s counsel

indicates a willingness to take a chance on a favorable verdict and waives the claim

of misconduct.”), and State v. Farnsworth, No. 13-0401, 2014 WL 2884732, at *3

(Iowa Ct. App. June 25, 2014) (“Farnsworth cannot obtain a new trial asserting

prosecutorial misconduct when he failed to move for a mistrial at the time the

alleged prosecutorial misconduct occurred. By not objecting or otherwise alleging

prosecutorial misconduct at the time of trial, Farnsworth failed to preserve error.”

(citation omitted)).

We acknowledge the State’s error-preservation concerns. But here, even

if we characterize Barton’s objection at trial to be an objection to prosecutorial

misconduct, the court did not quite overrule or sustain the objection but instead

admonished the jury to recall the testimony as it came in. This is problematic in

the context of a prosecutorial-misconduct claim, given the distinction between

sustained and overruled objections: if the objection is sustained error is only

preserved if the defendant moves for a mistrial, but if the objection is overruled,

defendant need not move for a mistrial. See State v. Neiderbach, 837 N.W.2d

180, 209 (Iowa 2013); State v. Brammer, No. 24-0127, 2025 WL 52854, at *3 (Iowa

Ct. App. Jan. 9, 2025).
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Barton skates on very thin ice regarding the error-preservation issue.

Nevertheless, it is within our prerogative to bypass serious preservation-of-error

problems and affirm on the merits. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).

In the interests of judicial economy, a ruling on the merits may stave off a post-

conviction relief action on the issue. So we exercise that prerogative here.

Before us, Barton only alleges prosecutorial misconduct—not prosecutorial

error. As defined by our supreme court, “prosecutorial misconduct involves either

the prosecutor’s reckless disregard of a duty to comply with the applicable legal

standard or obligation, or a prosecutor’s intentional statements in violation of an

obvious obligation, standard, or applicable rule.” State v. Coleman, 907 N.W.2d

124, 139 (Iowa 2018). Prosecutorial misconduct includes but is not limited to

“questioning witnesses about others’ deceit, distorting testimony, making

unsupported statements during closing argument . . . [and] making other

inflammatory or prejudicial statements about the defendant.” Id. (second alteration

in original) (citation omitted). Misconduct requires more than “human error or the

exercise of poor judgment.” Id. But it does not necessarily require bad faith. Id.

Finally, prosecutors are allowed latitude during closing arguments in making

inferences and conclusions based on evidence. State v. Graves, 668 N.W.2d 860,

874 (Iowa 2003).

We review rulings on alleged prosecutorial misconduct for an abuse of

discretion. Coleman, 907 N.W.2d at 134. To warrant relief, a criminal defendant

must establish both misconduct (whether reckless or intentional) and that the

misconduct was so prejudicial it deprived the defendant of his or her right to a fair

trial. Id. at 138. In assessing the prejudice prong, we consider five factors:
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(1) The severity and pervasiveness of misconduct;
(2) [T]he significance of the misconduct to the central issues in the case;
(3) [T]he strength of the State’s evidence;
(4) [T]he use of cautionary instructions or other curative measures; [and]
(5) [T]he extent to which the defense invited the misconduct.

Id. at 140 (citation omitted) (formatted for readability). The ultimate inquiry is

whether “the misconduct resulted in prejudice to such an extent that the defendant

was denied a fair trial.” Graves, 668 N.W.2d at 869.

Even if we could deem as misconduct the prosecutor’s characterization of

the area where Barton was first observed as a “high” narcotic trafficking area, as

opposed to the officer’s testimony there was “some” narcotic activity in the area,

we fail to see the significance of the characterization to the central issue in the

case—whether Barton possessed the backpack containing the drugs. Barton’s

actions may have seemed suspicious to the officers when first observed, but the

truck he was riding in was not stopped until it was determined its plates were

expired, thus justifying the traffic stop. The truck and its contents were not

searched until after the drug dog alerted on it.

When the prosecutor mentioned “high narcotic trafficking area” during her

rebuttal argument, after objection the jury was admonished by the court that “what

is important is what you recall from the evidence that was submitted, the testimony

you heard from the officers.” Furthermore, the jury was instructed to base its

“verdict only upon the evidence and these instructions,” which expressly does not

include “[s]tatements, arguments, questions[,] and comments by the lawyers.” The

complained-of statements fell within this exclusion; any prejudicial effect was

therefore mitigated. See, e.g., State v. Plain, 898 N.W.2d 801, 821 (Iowa 2017)

(observing a complained-of statement “was limited to closing arguments and the
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district court instructed jurors that ‘[the] summations and closing arguments of

counsel are not evidence,’ thus mitigating the term’s prejudicial effect” (alteration

in original)); State v. Brown, No. 07-1479, 2008 WL 5235495, at *3 (Iowa Ct. App.

Dec. 17, 2008) (finding no Graves prejudice where “[t]he conduct was neither

severe nor pervasive” and “[t]he court instructed the jury that

‘statements, arguments, questions, and comments by the lawyers’ were not

evidence and were not for the jury’s consideration or to be used as a basis for the

verdict”). Courts presume juries follow the court's instructions. State v. Hanes,

790 N.W.2d 545, 552 (Iowa 2010).

Barton cannot show Graves prejudice. So, we affirm the district court.

AFFIRMED.