State of Iowa v. Barry Bruce Evans

IN THE COURT OF APPEALS OF IOWA

No. 22-0333
Filed September 27, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BARRY BRUCE EVANS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Tama County, Fae E. Hoover, Judge.

A defendant appeals the admission of body camera footage as hearsay.

AFFIRMED.

Jeffrey L. Powell of Keegan, Tindal, & Jaeger, PLC, Iowa City, for appellant.

Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., and Schumacher and Badding, JJ.
2

GREER, Presiding Judge.

Barry Evans appeals his conviction for assault causing bodily injury or

mental illness, a serious misdemeanor, in violation of Iowa Code sections 708.1

and 708.2(2) (2021). He claims that the district court improperly admitted hearsay

evidence at trial through body camera footage of the victim, B.R., speaking with

Tama County Deputies Fangman and Foster. On our review, we find that although

the admitted body camera footage does not fit within the present sense impression

exception to the rule against hearsay—as the district court ruled it did—the

recording is admissible under the excited utterance exception. Likewise, because

the declarant and Deputy Fangman testified at trial and provided substantially the

same statements, along with the detail from an admitted-without-objection 911 call

from B.R., there was no prejudice to Evans. Thus, finding no error in the admission

of the body camera recording, we affirm the conviction.

I. Background Facts and Prior Proceedings.

In the evening of May 30, 2020, Evans (the driver) and B.R. (the passenger)

were returning from a funeral in Waterloo in Evans’s vehicle. According to B.R.,

as a disagreement about Evans’s driving elevated, Evans stopped the vehicle and

punched B.R. in the nose. Evans ordered B.R. out of the vehicle, leaving her along

the side of the road. After walking for at least ten minutes, B.R. called 911, and at

the end of that twenty-one-minute call, Deputy Fangman and Deputy Foster arrived

to give aid and investigate. In the 911 call, B.R. alleges that Evans punched her

in the nose. The conversation between the deputies and B.R. was preserved on

Fangman’s body camera. After this investigation, Evans was later charged with

assault causing bodily injury.
3

At the trial on the assault charge, the district court admitted state’s

exhibit 1—the twenty-one-minute 911 call with B.R.—with no objections and, over

Evans’s objection, state’s exhibit 2—Deputy Fangman’s body camera footage of

the interaction with B.R. In the recording of the 911 call, B.R. is distraught and

crying as she tells the 911 operator that she was bleeding, that her nose and head

hurt, that Evans punched her, and that she just wanted the cops to come and to

be able to go home. Prior to the presentation of the evidence at trial, Evans

clarified that unlike the 911 call recording, the body camera exhibit was not a

present sense impression and thus did not fall within an exception to the rule

against hearsay. After the record concluded concerning the exhibit, the district

court decided to admit the body camera recording under the present sense

impression exception to the rule against hearsay and noted that both Deputy

Fangman and B.R. would be testifying to the same details in any event. In the

body camera footage, B.R. responds to a question about how the assault

happened, shows law enforcement her injuries, discusses pressing charges

against Evans, details how law enforcement might find Evans, and explains the

process of getting B.R. home and retrieving her possessions from Evans’s hotel

room. The footage also shows B.R. writing a statement describing the incident.

Both B.R. and Deputy Fangman testified at trial. In addition to the 911

recording and the body camera footage, the district court admitted two

photographs of B.R.’s injuries into evidence. In her testimony, B.R. described the

details of the evening leading up to and including Evans punching her. She also

told the jury about her injuries and her call with the 911 operator before the

deputies arrived and began recording body camera footage. While he was
4

testifying, Deputy Fangman described B.R.’s injuries based on his observations

when he arrived, consistent with the two photographs he took. Those photographs

showed the swelling under B.R.’s eyes and redness on her nose from two angles.

The jury found Evans guilty, and the district court sentenced him to 270

days in jail with all but thirty days of that sentence suspended. Evans now appeals

his conviction.

II. Standard Of Review.

A determination that evidence is or is not hearsay is reviewed for correction

of errors at law. State v. Thompson, 982 N.W.2d 116, 121 (Iowa 2022). If hearsay

evidence was improperly admitted, we presume prejudice to the defendant “unless

the contrary is affirmatively established.” State v. Elliott, 806 N.W.2d 660, 669

(Iowa 2011) (citation omitted). “The State may show improperly admitted evidence

was not prejudicial by proving the error was harmless beyond a reasonable doubt.”

State v. Huser, 894 N.W.2d 472, 495 (Iowa 2017).

III. Analysis.

Hearsay evidence is a statement that “[t]he declarant does not make while

testifying at the current trial or hearing” and that “[a] party offers into evidence to

prove the truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c);

see also State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021). “The rule prohibiting

hearsay evidence . . . forbids an out-of-court statement used ‘to prove the truth of

the matter asserted in the statement.’” State v. Dessinger, 958 N.W.2d 590, 603

(Iowa 2021) (citation omitted); see also Iowa R. Evid. 5.802 (the rule against

hearsay). Here, the body camera recording contained statements that were not

made at trial but were offered into evidence to prove the truth of the matters it
5

asserted: the nature of the assault, the motivation behind it, and the extent of B.R.’s

injuries. Therefore, it was hearsay and inadmissible unless an exception to the

rule against hearsay applies. See Iowa R. Evid. 5.802 (“Hearsay is not admissible

unless any of the following provide otherwise: the Constitution of the State of Iowa;

a statute; these rules of evidence; or an Iowa Supreme Court rule.”).

The district court admitted the body camera footage under the present

sense impression exception, which permits a court to admit “[a] statement

describing or explaining an event or condition, made while or immediately after the

declarant perceived it.” Iowa R. Evid. 5.803(1). Although “while or immediately

after” does not require “precise contemporaneity,” the present sense impression is

limited to statements made only after “a slight lapse between [the] event and [the]

statement.” Dessinger, 958 N.W.2d at 600–01 (citations omitted). A lapse of

fifteen to twenty minutes between an automobile accident and a conversation with

a witness was not too long to overcome the contemporaneity requirement. Fratzke

v. Meyer, 398 N.W.2d 200, 205 (Iowa Ct. App. 1986). On the other hand, when a

statement is closer to a “recalled memory” or if “[t]here was nothing spontaneous

about it,” the statement may not fit into the present sense impression exception.

Dessinger, 958 N.W.2d at 601 (declining to rely on the present sense impression

for admission of statements when the time gap between the events and the

statement was unclear); see also State v. Michael, No. 21-0803, 2022 WL

16630316, at *3 (Iowa Ct. App. Nov. 2, 2022) (finding that when the declarant knew

that the officer was there investigating the incident and the declarant had enough

“time to collect [themself] and formulate a description of the altercation that was

favorable to” them, the present sense impression did not apply).
6

The statements at issue here do not qualify for admission under the present

sense impression as they were not made while or immediately after Evans

punched B.R. Instead, approximately thirty minutes passed between the incident

and the recording of the body camera footage. In her statements on the body

camera footage, B.R. focuses on pressing charges against Evans, providing a

written statement, and asking about getting her stuff back. Her statements are not

made contemporaneous to Evans’s actions nor are they spontaneous in nature.

In addition, over twenty-one minutes passed between the beginning of the 911 call

and the officers arriving, allowing B.R. to possibly formulate a description of the

incident that was favorable to her, with the awareness that the deputies were there

to investigate the incident and perhaps initiate criminal proceedings. See

Dessinger, 958 N.W.2d at 600 (noting a present sense impression does not allow

for an opportunity to fabricate a statement).

But the State raises another route to the admission of the body camera

recording. See id. at 599 (“We consider the applicability of exceptions in criminal

cases even when not urged at trial as there is no point in reversing a conviction

when the evidence will be admissible at retrial in any event.”). The State argues

the body camera statements were admissible under Iowa Rule of Evidence

5.803(2)—the excited utterance exception—allowing admission of “[a] statement

relating to a startling event or condition, made while the declarant was under the

stress of excitement that it caused.”

To determine if the excited utterance exception to the hearsay rule applies,

we follow the five-factor test in State v. Atwood:
7

(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.

602 N.W.2d 775, 782 (Iowa 1999). As for the almost thirty-minute lapse of time

between the incident and B.R.’s statements to the deputies, we do not find that

preclusive to our analysis. In Atwood, although the conversation came almost two

and one-half hours after the incident, the district court found the statement met the

excited utterance exception because the circumstances supported a finding of

excitement on the part of the declarant. Id. (“Lapse of time alone will not ordinarily

preclude application of the excited-utterance exception.”). And under the second

factor, B.R.’s statements were elicited by the deputies in an open-ended question

format with a focus on what happened. See id. at 782-83 (finding a statement

responding to an open-ended question, such as “what happened?” was more likely

to be determined to be an excited utterance than a response to leading questions).

While the video lasted for about twelve minutes, B.R.’s description of what

happened lasted just short of three minutes during which she was crying and

emotional. See State v Mateer, 383 N.W.2d 533, 535 (Iowa 1986) (characterizing

statements as excited utterances where the “questions merely anticipated excited

descriptions of the incident which the complainant and her girlfriend were bound

to volunteer to the officer in any event”).

And with facts similar to those here, our court found statements recorded

on dash cam audio from an emotional witness who was “frazzled” and “extremely

upset” constituted an excited utterance and satisfied the exception’s factors

allowing admission of the evidence. State v. West, No. 15-1431, 2016 WL
8

5930629, at *4-5 (Iowa Ct. App. Oct. 12, 2016). In West, viewing the

circumstances as a whole, the court determined the witness was “under the

influence of the excitement of the incident rather than upon reflection or

deliberation.” Id. at *5 (quoting Atwood, 602 N.W.2d at 782) (“[The witness] and

her son had just been in a physical altercation that escalated to a shooting; [the

witness] had been struck; her son had been shot; and she was talking to a police

officer while her son received medical attention in an ambulance nearby.”). In the

body camera footage, B.R. answers what had happened but is crying and

emotional. Reviewing the circumstances as a whole, she expressed her fear

during the drive with Evans, surprise that he struck her hard enough to cause injury

and tried to do so again, anger at being left on the road, and alarm that he said he

would come back and shoot her as she relayed to the 911 operator. The body

camera conversation was short in duration, and B.R. only offered information

requested by Deputy Fangman. So, B.R. was still under the influence of the

excitement of the incident when she was recorded by the body camera. Because

the body camera statements were admissible as excited utterances, the district

court did not err in admitting the footage.

Finally, even if no exception applied to the hearsay statements in the

footage, a statement is not grounds for reversal unless it is prejudicial to the

nonoffering party. Thompson, 982 N.W.2d at 121. “[T]he district court lacks

‘discretion to admit hearsay in the absence of a provision providing for it’ or deny

the admission of hearsay if it falls within an exception.” Id. (citation omitted). And

all hearsay is considered prejudicial unless the record affirmatively establishes

otherwise. See id.; see also State v. Huser, No. 10-2067, 2011 WL 6079120, at
9

*12 (Iowa Ct. App. Dec. 7, 2011) (“Erroneously admitted statements are not proper

grounds for reversal if the State can prove the inadmissible evidence did not have

an impact on the jury’s guilty verdict.”). Even so, hearsay evidence that is merely

cumulative may not be prejudicial. Elliott, 806 N.W.2d at 669; State v. Newell, 710

N.W.2d 6, 19 (Iowa 2006) (“[E]rroneously admitted hearsay will not be considered

prejudicial if substantially the same evidence is properly in the record”). When the

party making the hearsay statements testifies at trial and makes the same

statements, the hearsay statements are cumulative. State v. Hildreth, 582 N.W.2d

167, 170 (Iowa 1998) (“[W]e will not find prejudice if the admitted hearsay is merely

cumulative.”); see also State v. Loyd, No. 22-0067, 2022 WL 17826935, at *2 (Iowa

Ct. App. Dec. 21, 2022); State v. Noggle, No. 21-1969, 2022 WL 17829123, at *4

(Iowa Ct. App. Dec. 21, 2022) (finding that when the hearsay information “was

nearly identical to the testimony of the witness,” reversal was not warranted).

On this point, the State argues harmless error and we find that even if the

body cam statements were not admissible under an exception to the prohibition

against hearsay, because B.R.’s statements were cumulative, their admission

does not require reversal. First, B.R. described the details of the assault to the

jury. Then, without objection, the State played the 911 tape and the jury heard

B.R.’s emotional description of how the assault happened. In that 911 recording,

B.R. described her injuries, confirmed that Evans hit her, and gave details about

the pain she was in and her bleeding. Deputy Fangman likewise testified at trial

providing the same detail from the recording. In addition, Evans did not object to

admission of the 911 recording or to the two photographs of B.R.’s injuries. Again,
10

each of these pieces of evidence provided another source of the same information

apart from the body camera footage. Thus, the evidence was merely cumulative.

IV. Conclusion.

For these reasons, we find the admission of the body cam footage did not

violate the rule against the admission of hearsay and, in any event, there was no

prejudice to Evans, so we affirm the conviction.

AFFIRMED.