State of Iowa v. Trevor Joe Howland

IN THE COURT OF APPEALS OF IOWA

No. 22-0519
Filed May 24, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TREVER JOE HOWLAND,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, Christopher C.

Polking (motion for in camera review) and Jennifer Miller (motion in limine and

trial), Judges.

Trever Howland appeals his convictions for sexual abuse in the second

degree. AFFIRMED.

Angela Campbell of Dickey, Campbell, & Sahag Law Firm, PLC, Des

Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Heard by Ahlers, P.J., Chicchelly, J., and Blane, S.J.*

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

(2023).
2

AHLERS, Presiding Judge.

The State charged Trever Howland with multiple counts of sexual abuse in

the second degree1 based on allegations that he performed sex acts on his former

girlfriend’s daughter when the daughter was around five years old. A jury found

Howland guilty of three counts. The district court sentenced Howland to a prison

term not to exceed twenty-five years for each count, with the terms to be served

concurrently. Howland appeals his convictions. He raises multiple issues, which

we will address separately with additional facts provided as needed.

I. Sufficiency of the Evidence2

Howland contends there was not sufficient evidence to support his

convictions. Sufficiency-of-evidence claims are reviewed for correction of errors

at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). Jury verdicts bind

us if they are supported by substantial evidence. Id. Evidence is substantial if it

is sufficient to convince a rational factfinder that the defendant is guilty beyond a

reasonable doubt. Id. In assessing whether evidence is substantial, “we view the

evidence in the light most favorable to the State, including all ‘legitimate inferences

1 See Iowa Code §§ 709.1, .3(1)(b) (2014).
2 Section VII of Howland’s brief asserts “the verdict is contrary to the law and the
evidence” by claiming the evidence is insufficient to support his convictions with
references to the weight of the evidence. These are two distinct inquires, and the
sufficiency claim implicates double jeopardy. Because success on the sufficiency
challenge would require us to remand for judgment of acquittal and end our inquiry,
we start our analysis with that issue. With respect to his weight-of-the-evidence
references and request for new trial, he does not claim the court abused its
discretion in denying his motion for new trial on this basis or claim the court applied
the incorrect standard in ruling on the motion for new trial. See State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016). So there is nothing for us to review with respect to
the weight of the evidence.
3

and presumptions that may fairly and reasonably be deduced from the record

evidence.’” Id. (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).

Howland argues that the evidence is insufficient because it is based entirely

on the child’s testimony. He contends the child’s testimony is insufficient to support

the convictions because her testimony was not corroborated, her story changed,

and her testimony is unbelievable because she testified years later to events that

happened when she was as young as three years old.

We make quick work of Howland’s lack-of-corroboration argument. Stated

simply, corroboration of a victim’s testimony is not required. Iowa R. Crim.

P. 2.21(3) (“Corroboration of the testimony of victims shall not be required.”); State

v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (stating that “the alleged victim’s

testimony is by itself sufficient to constitute substantial evidence of defendant’s

guilt,” and observing that “[t]his court has held that a rape victim’s accusation need

not be corroborated by physical evidence”). So Howland’s claim of error based on

lack of corroboration fails.

Howland’s arguments based on claimed changes in the child’s story and

the quality of her memory from years before are credibility arguments properly

made to the jury. The jury rejected them by returning a guilty verdict. Howland

urges us to accept them on appeal. But doing so would be “inconsistent with the

standard of appellate review of jury verdicts, which requires that the evidence be

viewed in the light most favorable to the verdict and which requires deference to

the jury’s resolution of disputed factual issues.” State v. Mathis, 971 N.W.2d 514,

518 (Iowa 2022). When evaluating sufficiency-of-the-evidence challenges, we do

not resolve conflicts in the evidence, pass upon the credibility of witnesses,
4

determine the plausibility of explanations, or weigh the evidence, as such matters

are for the factfinder to determine. State v. Musser, 721 N.W.2d 758, 761 (Iowa

2006).

Sticking to our obligation to view the evidence in the light most favorable to

the verdict and not weigh the evidence, we find the evidence sufficient to convince

a rational factfinder that Howland is guilty beyond a reasonable doubt. See

Crawford, 972 N.W.2d at 202. Therefore, we reject Howland’s challenge to the

sufficiency of the evidence.

II. Access to Privileged Records

Prior to trial, Howland filed a motion requesting an in camera review by the

court of the child’s therapy records. The district court denied the motion. Howland

asserts the court erred in denying the motion. As there is no constitutional

challenge to this discovery ruling, we review it for abuse of discretion. See State

v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).

In deciding whether the court abused its discretion by not conducting an

in camera review of the child’s therapy records, we look to Iowa Code

section 622.10 (2021). “Iowa Code section 622.10 generally prevents a mental

health professional from disclosing ‘any confidential communication properly

entrusted to the person in the person’s professional capacity’ associated with the

patient’s treatment.” State v. Retterath, 974 N.W.2d 93, 98 (Iowa 2022) (quoting

Iowa Code § 622.10(1)). There are two exceptions to this general rule: (1) if the

holder of the privilege waives privilege or (2) if the records are “likely to contain

exculpatory information that is not available from any other source and for which

there is a compelling need for the defendant to present a defense in the case.”
5

Iowa Code § 622.10(4)(a)(2)(a). “If the defendant satisfies the threshold showing

for the second exception, the district court must review the records ‘in camera’

(privately, without the parties present) to determine whether the records contain

exculpatory information.” Retterath, 974 N.W.2d at 99. The child did not waive

privilege in this case, so the only exception in play is the second.

Howland asserts that he met the threshold showing needed to trigger the

district court’s obligation to review the child’s therapy records. He bases this

assertion on his theory of defense, which was to undermine the child’s credibility

by showing (1) Howland was not the only paramour of the child’s mother during

the time Howland is alleged to have committed the sexual abuse; (2) the child

appeared to have suffered trauma as a result of her mother’s mental-health issues,

instability, and inability to parent the child; and (3) the child has a propensity for

confusion or untruthfulness.

Howland fails to establish any meaningful nexus between his defense

theories and the child’s therapy records. See Thompson, 836 N.W.2d at 490

(finding the defendant failed to make the necessary showing to gain access to the

alleged victim’s records because he offered “no evidence showing a nexus

between the issues at trial and the mental health treatment received by [the alleged

victim]”). We address each of his defense theories in turn.

As to his first claim that the mother had other suitors, there is no evidence

suggesting the child knew of any other suitors or confused them as being her

abuser rather than Howland. With this lack of evidence, there is no reasonable

probability that the child’s therapy records would contain exculpatory information.

See Iowa Code § 622.10(4)(a)(2)(a) (requiring a defendant to demonstrate “a
6

reasonable probability that the information sought is likely to contain exculpatory

information”). Further, to the extent Howland is simply seeking information as to

the identity of other men, he has failed to demonstrate that such information is not

available from any other source. See id. (requiring a showing that the information

sought in the otherwise confidential records “is not available from any other

source”).

As to his second claim that the child suffered trauma as a result of her

mother’s issues, there is little question that the mother had dysfunction in her life,

which may have negatively impacted the child. However, we fail to see how the

mother’s dysfunction and any resulting harm to the child leads to the reasonable

probability that the child’s therapy records would show Howland did not sexually

abuse the child. Without a showing of such reasonable probability, Howland was

not entitled to a review of the records. See id. We also note that, if this claim was

enough to meet the threshold necessary to trigger an in camera inspection, it would

effectively eliminate the protections provided by section 622.10(4) because all that

would be needed to trigger the review would be proof that the person has

undergone therapy. We decline to interpret the section so broadly as to negate its

purpose of protecting the confidentiality of records. See State v. Leedom, 938

N.W.2d 177, 189 (Iowa 2020) (“We reiterate the ‘importance of maintaining

confidentiality in mental health treatment.’” (quoting State v. Edouard, 854 N.W.2d

421, 441 (Iowa 2014))); Thompson, 836 N.W.2d at 481 (finding the legislature’s

purpose in adopting section 622.10(4) was to “restore[] protection for the

confidentiality of counseling records while also protecting the due process rights

of defendants”).
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As to Howland’s third claim that the child has a propensity for confusion or

untruthfulness, there is simply no evidence supporting this claim, let alone

evidence that demonstrates a reasonable probability that proof of such propensity

would be found in the child’s counseling records. The lack of evidence supporting

Howland’s claim lies in sharp contrast to the evidence in another case in which our

supreme court found evidence sufficient to trigger an in camera review. In

Leedom, the defendant was accused of sexually abusing his granddaughter. 938

N.W.2d at 181. The granddaughter’s parents were fighting for custody over her,

and the granddaughter admitted having lied about the details of her father’s vehicle

accident in an effort to secure her preferred placement with her father. Id. at 187.

Additionally, the granddaughter testified that she had disclosed the abuse to her

therapist. Id. at 187. Because the therapist was a mandatory reporter, had the

granddaughter disclosed the abuse, the therapist would likely have been required

to report it. Id. at 187–88. Thus, a review of the records had a reasonable

probability of showing that the granddaughter made no such report, so her

testimony that she had made the report would be contradicted by the records. Id.

at 188. Based on these considerations, the supreme court concluded the

granddaughter’s mental-health records should have been reviewed in camera by

the district court because the defendant’s request to access the records “was a

targeted inquiry rather than a fishing expedition.” Id.

Unlike in Leedom, Howland points to no specific evidence that there was a

reasonable probability that the child’s therapy records would contain exculpatory

evidence. Under the circumstances here, we view Howland’s request for an in

camera review to be a fishing expedition prohibited by the statute rather than a
8

targeted inquiry permitted by it. We find no abuse of the district court’s discretion

in declining to conduct such review.

III. Vouching

By pretrial motion in limine, Howland sought to prevent a forensic

interviewer from testifying about her interview of the child, asserting that such

testimony would constitute improper vouching for the credibility of the child. See

State v. Dudley, 856 N.W.2d 668, 676–78 (Iowa 2014) (prohibiting testimony that

comments on another witness’s credibility, as such testimony would constitute

improper vouching for the other witness’s credibility). The court denied the motion,

and the expert testified. She testified that she had interviewed the child but gave

no details about the interview. When asked whether she was there to testify about

the substance of the interview or the credibility of any witness, the expert replied,

“No, I’m not. I’m not allowed to.” The expert went on to testify about common

misconceptions people may have about child sex abuse, but such testimony was

limited to the behaviors of child-sex-abuse victims generally, rather than to the

child involved in this case.

Howland contends the expert’s testimony was improperly admitted for two

reasons. First, he asserts the expert’s testimony that she was “not allowed to”

testify about this child’s credibility was an indirect comment on the child’s credibility

because it suggested that, if she had been allowed to do so, she would have told

the jury she found the child credible. Second, Howland contends the expert

improperly tailored her testimony about the behaviors of child-sex-abuse victims

generally to fit the facts known to her based on her interview of the child.

Specifically, Howland objects to the expert testifying that child-sex-abuse victims
9

frequently delay reporting the abuse and that it is common for the abuse victim to

be willing to be around the abuser, especially if the abuser plays a disciplinary role

in the child’s life, as both of these behaviors were behaviors exhibited by the child

in this case.

While the State challenges error preservation, we find Howland adequately

preserved error via pretrial motion and objections lodged at trial. We review

admission of claimed vouching evidence for an abuse of discretion. State v.

Brown, 856 N.W.2d 685, 688 (Iowa 2014). An abuse of discretion occurs when

the district court exercises its discretion on grounds or for reasons that are clearly

untenable or unreasonable. Id.

“[W]hen an expert comments, directly or indirectly, on a witness’s credibility,

the expert is giving his or her scientific certainty stamp of approval on the testimony

even though an expert cannot accurately opine when a witness is telling the truth.”

Dudley, 856 N.W.2d at 677. In our court system, “[i]t is the jury’s function to

determine if the victim is telling the truth, not the expert witness’s.” Id. “We need

to break down each statement [the defendant] claims as objectionable to

determine whether the State crossed the line.” Id. at 678.

As to Howland’s contention that the expert’s testimony that she is “not

allowed to” to testify about the substance of the interview or credibility of a witness

constituted vouching, we find no abuse of discretion in permitting the testimony.

While this testimony could be viewed in the nefarious way suggested by Howland,

he points to no place in the record where the State used it for that improper

purpose. The statement can just as easily be viewed as a simple statement of

fact—the expert is, in fact, not allowed to comment on another witness’s credibility.
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See, e.g., State v. Vandekieft, No. 17-0876, 2018 WL 2727720, at *5 (Iowa Ct.

App. June 6, 2018) (noting the expert “acknowledged she interviewed [the child]

but stated she would not give an opinion on the credibility of [the child]” in rejecting

vouching challenge). We find no abuse of discretion in permitting this testimony.

As to Howland’s complaint that the expert’s testimony about the behavior of

child-sex-abuse victims in general coincided with the behavior exhibited by this

particular child, we find no abuse of discretion in admitting the testimony. An expert

is permitted to testify in generalities about behaviors of sexually-abused children.

State v. Jaquez, 856 N.W.2d 663, 666 (Iowa 2014). The admittedly thin line into

impermissible vouching is crossed if the expert testifies that the behavior of the

complaining witness comports with the behavior of sexually abused children. See

Dudley, 856 N.W.2d at 677 (“To allow an expert witness to testify a child’s physical

manifestations or symptoms are consistent with sexual abuse trauma . . . allows

the expert witness to indirectly vouch that the victim was telling the truth because

the expert opines the symptoms are consistent with child abuse.”). That line was

not crossed here, as the expert’s testimony remained limited to generalities.

Finding no abuse of discretion, we reject Howland’s challenges based on

claimed improper vouching by the State’s expert.

IV. Testimony of the Child’s Mother

The child’s mother testified at trial. Howland challenges the admission of

three pieces of her testimony.

A. Statements Made by the Child to the Mother

Over Howland’s hearsay objection, the court permitted the mother to give

the following testimony:
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Q: And could you tell the jury what [the child] told you in that
first disclosure to you?
....
A: We were bathing my [other daughter], and she had said
that they were talking about inappropriate touching and stuff at
school and that she had something to tell me. And we went into my
room to get [my other daughter] dressed and stuff. And she said that
she needed to tell me something that happened to her so I shut the
baby monitor off in the living room because all the other kids were
out there. And she told me that [Howland] made her suck on his—
and she could only get that out, and we were crying. And she said
that he also touched her.

Howland claims error in the admission of this testimony as it is hearsay. We review

evidentiary rulings based on hearsay for errors at law. State v. Thompson, 982

N.W.2d 116, 121 (Iowa 2022).

Hearsay is an out-of-court statement offered “into evidence to prove the

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

not admissible at trial unless an exception applies. See Iowa R. Evid. 5.802.

Here, there is no dispute that the statement is hearsay. The dispute is

whether an exception applies. The State relies on the excited-utterance exception.

See Iowa R. Evid. 5.803(2).

“An excited utterance is ‘[a] statement relating to a startling event or

condition, made while the declarant was under the stress of excitement that it

caused.’” State v. Dessinger, 958 N.W.2d 590, 601 (Iowa 2021) (alteration in

original) (quoting Iowa R. Evid. 5.803(2)). In order to satisfy the excited-utterance

exception, “[t]he statement must be made under the excitement of the incident and

not on reflection or deliberation.” Id. The rationale for the exception is that when

the statement is made under the stress of the event, it is less likely the person
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making the statement will fabricate it. Id. We apply a five-factor test to determine

whether a statement qualifies as an excited utterance:

(1) the time lapse between the event and the statement; (2) the
extent to which questioning elicit[s] . . . 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.

Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)).

We find the time lapse disqualifies the statement from meeting the excited-

utterance exception, as the statement was made five to eight years after the events

described in the statement. Our cases do not set any firm time deadline, as

“statements made hours and even days after the event have been admissible.” Id.

at 601–02 (collecting cases). And, we have allowed for statements “on the high-

end of the range” to be permitted for statements made by children. Id. at 601.

However, we know of no authority permitting a statement to qualify as an excited

utterance when it is made years after the event described. While the State makes

a creative argument that this qualifies as an excited utterance because it was made

shortly after the child first learned at school that what happened to her constituted

abuse, it does not change the fact that too much time had passed since the event

being described to conclude the child was acting under the excitement of the event

and not on reflection or deliberation.

Having concluded the challenged statement is hearsay for which no

exception applies, the statement should not have been admitted. But that does

not end the discussion. “Under Iowa Rule of Evidence 5.103, we may not find error

on any ruling admitting evidence unless the ruling affected ‘a substantial right of

the party’ opposing admission.” State v. Wilson, 878 N.W.2d 203, 218–19 (Iowa
13

2016). Wrongly admitted hearsay evidence is presumed prejudicial to the

nonoffering party unless shown otherwise. State v. Skahill, 966 N.W.2d 1, 15

(Iowa 2021).

One way the State can overcome the presumption of prejudice is to show

that the wrongly admitted evidence was cumulative. Id. at 16. The State relies on

the cumulative nature of the mother’s testimony here. By the time the mother took

the stand and presented the hearsay testimony, the child had already testified that

Howland “touched [her] in the vagina” and “put his penis in [her] mouth, and he

made [her] touch his penis.” So, the mother’s testimony was clearly cumulative.

The question is whether the cumulative nature of it overcomes the prejudice.

We have case law that comes down on either side of this issue. On one

side we have Skahill, where the supreme court found admission of a forensic

interview of the child prejudicial even though it was cumulative of the child’s trial

testimony. Id. at 16–17. In reaching this conclusion, the court highlighted the

powerful nature of the forensic-interview video, as it provided additional details not

mentioned in the child’s trial testimony, and how the inadmissible video was

featured prominently in the State’s closing argument by the prosecutor playing

back dozens of excerpts from it. Id. On the other side, we have a number of cases

in which no prejudice was found due to the cumulative nature of the hearsay

evidence. See, e.g., State v. Juergens, No. 20–0825, 2021 WL 4592827, at *3

(Iowa Ct. App. Oct. 6, 2021) (finding admission of child’s statements to parents

disclosing abuse to be harmless, as the statements were cumulative to other

properly admitted evidence); State v. Exline, No. 18–1527, 2020 WL 568866, at *3

(Iowa Ct. App. Feb. 5, 2020) (finding no need to address whether child’s
14

statements to a grandmother and friend fell within a hearsay exception, as they

were cumulative of other evidence properly admitted); State v. Neitzel, 801 N.W.2d

612, 623 (Iowa Ct. App. 2011) (finding no need to determine admissibility of the

child’s statements to a parent, as the statements were “merely cumulative and

therefore not prejudicial”).

We find this case more closely aligned with the facts in Juergens, Exline,

and Neitzel than with the facts in Skahill. Unlike the hearsay statements contained

in the video in Skahill, the mother’s testimony here about the child’s statements

did not provide details not provided by other testimony. See 966 N.W.2d at 16

(noting the improperly admitted forensic-interview video “provided additional

background for the jury”). In fact, less detail was provided through the mother’s

testimony. Additionally, the mother’s testimony lacks the inherent power of

persuasion found to exist with the forensic-interview video erroneously admitted in

Skahill. See id. (“Forensic interviews can be different from and, sometimes, more

powerful than trial testimony.”). Finally, in Skahill, the State made the improperly

admitted hearsay a focal point of its closing argument, replaying “approximately a

dozen excerpts and argu[ing] the significance of each to the jury” as well as using

about half of the State’s initial closing argument as “essentially a selective

rebroadcast of the video with prosecutorial voiceover.” Id. at 17. In contrast, the

State made virtually no use of the mother’s testimony about the child’s statements

to her in its closing argument. See id. (noting we have to look at how a case is

tried in determining whether prejudice resulted). After consideration of the

cumulative nature of the improperly admitted hearsay statements, we find any error

harmless and decline to grant Howland a new trial on this basis.
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B. Evidence Regarding Motivation to Fabricate

Howland also takes issue with the admission of this testimony by the

mother:

Q: Are you aware of any motivation that [the child] would have
to fabricate this story? A: No.
DEFENSE COUNSEL: Objection, Your Honor. It’s witness
vouching. It’s not relevant, and it’s more prejudicial than probative.
COURT: Sustained.

Howland complains that, while his objection was sustained, the answer was not

stricken from the record and the testimony constitutes improper vouching.

We find this issue unpreserved for our review. When, as here, an objection

is made after the answer to the question is in the record, in order to preserve error,

the objecting party must make a motion to strike the answer and ask that the

objection precede the answer or offer an excuse for the delay in objecting. See

State v. Reese, 259 N.W.2d 771, 775 (Iowa 1977). Howland took none of these

actions, so he has not preserved his claim of error.

C. Evidence Regarding Howland’s Role as Disciplinarian

Howland also objects to the introduction of evidence that he served as a

disciplinarian for the child when he was in a relationship with the child’s mother.3

Even though no specifics of any disciplinary acts were given, he contends the

testimony that he served as a disciplinarian was improper “bad acts” evidence that

should have been excluded under Iowa Rules of Evidence 5.404(b) and 5.403.

Rule 5.404(b)(1) states, “Evidence of a crime, wrong, or other act is not

3 Although the State challenges error preservation on this issue, Howland raised
the issue via pretrial motion in limine and received a sufficiently definitive ruling
such that we find error preserved.
16

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Although the “other

act” referenced in the rule is not defined, our supreme court has looked to other

jurisdictions to conclude it refers to bad acts, meaning “any conduct of the

defendant which may bear adversely on the jury’s judgment of his character.”

State v. Reynolds, 765 N.W.2d 283, 289 (Iowa 2009) (quoting United States v.

Cooper, 577 F.2d 1079, 1087–88 (6th Cir. 1978)), overruled on other grounds by

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). We fail to see how

Howland acting as a disciplinarian—with no evidence of any conduct that could be

viewed as excessive discipline—may bear adversely on the jury’s judgment of his

character, and Howland provides no argument and no citation to authority in

support of his claim. As a result, we deem the issue waived. See Iowa R. App.

P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”).

V. Limit on Scope of Questioning

Howland argues that he was denied a fair trial because the district court

prevented him from trying to prove the child’s allegations were untrue by

questioning witnesses about the child’s mental state, the mother’s mental state,

the chaotic nature of the household, and “the family tension and drama that

surrounded” the child between the time of the alleged abuse and when she

disclosed it. We are unable to review these claims, as Howland failed to preserve

error on them. “Error on appeal cannot be predicated on a ruling excluding

evidence unless either the party that is offering the evidence ‘informs the court of

its substance by an offer of proof,’ or ‘the substance was apparent from the
17

context.’” State v. Lacey, 968 N.W.2d 792, 806 (Iowa 2021) (quoting Iowa R.

Evid. 5.103(a)(2)). Here, no offer of proof was made and the substance of such a

broad range of topics is not apparent from the context. Without an offer of proof,

we are left to speculate about the substance of the excluded evidence, which we

decline to do. See id.

VI. Denial of Motion for Mistrial Following Therapy Disclosure

Before trial, ruling on the State’s motion in limine, the court ordered that

“[t]he defense will not make any reference to the mental-health or substance-abuse

counseling of any witness in this case.” At trial, the following exchange occurred

during the State’s examination of the child’s grandmother:

Q. Did [the child]’s life change or did she benefit in any way
by disclosing this abuse?
....
Q. . . . [The child] continued to live with you after [the day the
child disclosed the abuse in] 2019 for at least a year; right? A. Yes.
Yes.
Q. Okay. And nothing changed for [the child] after that?
....
Q. You can answer. A. After the disclosure?
Q. Yes, ma’am. A. I put her—she went to get therapy.
Q. Okay. A. I put her in therapy right away.
Q. I understand. A. But her life was—I mean, it wasn’t—I
mean, I put her in therapy, but, I mean, it wasn’t—
DEFENSE COUNSEL: Your Honor, may we approach?
COURT: Yes.

This was followed by an off-the-record discussion between the court and counsel.

At the first break outside the presence of the jury following this exchange, defense

counsel made a record of what was discussed at the sidebar conference and made

a motion for mistrial. Howland sought a mistrial based on the witness mentioning

the child’s therapy, claiming it violated the order in limine. The State responded

by noting that the witness’s answer was nonresponsive to the question and that
18

the order in limine was obtained by the State not Howland. In response, the court

noted its belief that a violation of an order in limine “is not per se a reason or

grounds for a mistrial.” The court also noted that prejudice needs to be shown and

stated, “I don’t believe that anything that was said rose to the level or was so

prejudicial that the defendant cannot receive a fair trial.” So, the court overruled

Howland’s motion for a mistrial. Howland contends the court erred in doing so.

We review the denial of a mistrial for an abuse of discretion. State v. Plain,

898 N.W.2d 801, 811 (Iowa 2017). To establish reversible error, Howland must

show the violation of the order in limine resulted in prejudice that deprived him of

a fair trial. See State v. Frei, 831 N.W.2d 70, 80 (Iowa 2013), overruled on other

grounds by Alcala, 880 N.W.2d at 708 n.3. “The party claiming prejudice bears

the burden of establishing it.” Id. at 80–81 (quoting State v. Anderson, 448 N.W.2d

32, 33 (Iowa 1989)).

Here, the violation was isolated and abrupt, caused by a nonresponsive

answer from a witness. The point was not belabored, either in questioning or

closing argument. We conclude this minor violation did not prejudice Howland to

the extent he lost his opportunity for a fair trial, so we find no abuse of discretion

in the court’s denial of Howland’s motion for a mistrial. See State v. English,

No. 21–0315, 2022 WL 3052322, at *3 (Iowa Ct. App. Aug. 3, 2022) (concluding a

mistrial was not necessary when a violation of an order in limine was “isolated and

abrupt in nature”).

VII. Statement on Slide During Closing Argument

Howland filed a motion for new trial based on the prosecutor displaying a

projected slide to the jury during closing argument that read, “He did it.” The court
19

denied the motion, and Howland claims error.

We do not address the merits of this issue, as error is not preserved.

Howland did not object during the State’s closing argument when the slide was

displayed, nor did he move for a mistrial. The first time Howland raised an issue

about the slide was after the guilty verdict was returned. This is too late to preserve

error. A party cannot take a “wait-and-see” approach by refraining from objecting

to remarks made in closing argument until after the verdict is reached. Kinseth v.

Weil-McLain, 913 N.W.2d 55, 67 (Iowa 2018). Instead, a party must make a timely

objection, as timely objections give the district court an opportunity to admonish

counsel or appropriately instruct the jury. Id. As Howland raised no objection until

the verdict was returned, he did not preserve error.

Howland attempts to excuse his failure to timely object or move for a mistrial

by the fact that his counsel claims not to have seen the slide at issue—only being

told about it after the verdict. We are not persuaded by Howland’s excuse. We

expect attorneys to be aware of the information presented to the jury. There is

nothing in the record suggesting that Howland’s counsel could not see the slide or

that he was prevented from moving to a vantage point from which counsel could

see the slide, so we conclude that any claimed failure to see the slide does not

excuse counsel’s failure to act upon it if counsel thought the slide was improper.

VIII. Conclusion

Having rejected each of Howland’s claims, we affirm Howland’s convictions.

AFFIRMED.