STATE OF IOWA v. JAYKIE LEE HARRINGTON (2023)

A jury convicted Jaykie Harrington of possession with intent to manufacture or deliver a controlled substance (methamphetamine); child endangerment; failure to affix drug tax stamp; possession of a controlled substance (methamphetamine), third or subsequent offense; and domestic abuse assault, second offense. On appeal, he argues (1) he was denied a fair trial due to prosecutorial misconduct, (2) his right against self-incrimination was also denied due to prosecutorial misconduct, (3) there was insufficient evidence to convict him of the drug charges, and (4) the district court improperly admitted hearsay evidence. For the reasons set out below, we affirm.

I. Background Facts and Proceedings.

Harrington and his on-again-off-again partner, Emilee, had a tumultuous relationship over fifteen years. They had three children together, including a five-year-old. On October 3, 2020, the two engaged in a couple of verbal arguments. Harrington was at Emilee's home but, after another argument, he left without taking his dog or his laundry. The following day, Emilee drove to Harrington's home to return the dog and laundry to Harrington; two of the children accompanied her there. At the time, Harrington shared the residence with a different partner. Emilee testified about what transpired at Harrington's home. On arrival, the children and Emilee went into the house and woke up Harrington; he began “screaming” at her. She testified “his eyes were bulging out of his head, and he just wouldn't stop yelling at me.” The children and Harrington exited the house, with the children going to the backyard to look at a domestic fox that Harrington had on the property, while Harrington went into the garage.

Meanwhile, while she was still inside, Emilee heard Harrington, who was still screaming, turn on a chainsaw. Based on the noise, she thought he was using the chainsaw to hit the garage door. As Harrington left the garage, he walked towards Emilee with the chainsaw engaged, but he eventually turned it off. Emilee testified she felt intimidated and scared. Harrington told her to leave and if she “didn't, he was going to slice [her] and [her] car up.” After the children and Emilee got into Emilee's car, Harrington reached through the back window, placed his hands around the five-year-old's neck, and initiated what looked like a choke hold while making a disparaging comment about how Emilee “liked to be choked like this.” He then choked the child again, saying the same thing. Emilee thought both children looked shocked and scared.

After Emilee called 911 to report what had happened,¹ law enforcement responded, obtained a search warrant, and searched the property. Clay County Deputy Tyler Heck testified he interviewed Emilee and observed the children but could not determine if the scratch and red mark on the child was from Harrington's actions or from the dog they returned. At Harrington's property, as deputies searched for the chainsaw and the hard drive for the security camera system, which were listed on the warrant, they came across drugs and drug paraphernalia, including plastic baggies containing methamphetamine. Clay County Lieutenant Casey Timmer testified the smaller packaging of the methamphetamine was typical for the sale and distribution of the drug and identified other items associated with drug use and production. The deputies seized the security system hard drives but could not access the internal information without a password.

The investigating officers also found Harrington's friend, Caleb Brewer, at the residence, along with the woman that lived there with Harrington. Deputy Heck found some “items of significance” in Brewer's car that was parked at the Harrington driveway during the search. No drug-related items were found in Harrington's vehicle.

Following this investigation, Harrington was charged via trial information with eight counts: (1) possession with intent to manufacture or deliver a controlled substance (methamphetamine); (2) going armed with intent; (3) child endangerment; (4) failure to affix drug tax stamp; (5) possession of a controlled substance (methamphetamine); (6) child endangerment; (7) domestic abuse assault, second offense; and (8) unlawful possession of prescription drug (amphetamine and dextroamphetamine). The State filed a pre-trial motion requesting the admission of testimony that Harrington refused to provide the password to a security camera system that law enforcement seized on Harrington's property. Harrington resisted, citing protection from self-incrimination under the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 9 of the Iowa Constitution. The district court denied the State's request to admit evidence of Harrington's refusal to turn over the passwords.

At trial, the State introduced several exhibits showing items found at Harrington's home and garage, including photographs of the security camera system, syringes, a bong, a bent gold-tinged spoon, a pipe, multiple small empty clear plastic baggies, a grinder with residue in it, and clear plastic baggies containing white powder. Many of the items were inside of plastic totes containing wires for the security camera system and in a bag with Harrington's identification card. The State also introduced video from Harrington's booking at the jail. During that booking process, Harrington told his father that he is “not guilty” because he had everything on camera, does not have cameras “for no reason,” and details about the number and location of surveillance cameras around Harrington's residence. Coupled with this video, the State elicited testimony from one of its witnesses about the link between dealing drugs and surveillance video systems.

The State began its presentation of evidence with Emilee's description of Harrington's anger on the morning she came to his home and what transpired as they were arguing, including the chainsaw incident. Emilee also described how Harrington twice put his hands around their child's neck that day. The prosecutor called several law enforcement officers as witnesses. One, Deputy Heck, testified as to his interview with Emilee concerning the incident. The prosecutor asked, “After receiving—Did you receive additional information from Emilee at that point? And I'm not going to ask you what—what exactly she told you. But did she tell you additional details about the incident ․ ?” Harrington objected on hearsay grounds, and the district court overruled the objection. Deputy Heck responded that Emilee “stated that [Harrington] appeared that he was impaired or high, also stated that he had choked their—their five-year-old child.”

During trial, Harrington moved for judgment of acquittal on seven of the eight counts, focusing on the lack of evidence of constructive possession of the drugs and of child endangerment to the older child. The State resisted, and the district court denied the motion on six of the seven counts, granting the motion and dismissing the count of child endangerment involving the older child. The State then moved to reconsider, enlarge, or amend the ruling on the motion for judgment of acquittal, which the district court denied. After the case was submitted to the jury, they deliberated for just over one hour before reaching a verdict.

The jury found Harrington guilty of five of the seven remaining counts: possession with intent to manufacture or deliver a controlled substance (methamphetamine); child endangerment; failure to affix drug tax stamp; possession of a controlled substance (methamphetamine), third or subsequent offense; and domestic abuse assault, second offense; it found him not guilty of going armed with intent and unlawful possession of prescription drug.

Harrington moved for a new trial, arguing the verdicts were contrary to the weight of the evidence for the drug charges and were tainted by prosecutorial misconduct when the prosecutor vouched for Emilee during closing argument by stating, “But it was easy for Emilee in one way: because she knew this whole time that she was telling the truth.” The State resisted, responding that the statement was not vouching. The district court denied the motion, finding that the jury had credible evidence—including the location of the drugs themselves and the security system installed at Harrington's home—to conclude that it was Harrington who possessed the drugs. As for the vouching assertion, the district court found no prejudice to Harrington. The court also denied Harrington's motion regarding his claim the prosecutor violated the court's ruling on the pre-trial motion—and Harrington's constitutional right to be free from self-incrimination—when the prosecutor stated during closing, “The only person in this room that was there is at this table right here.” The court ruled that because the State did not tread too closely to the ruling on the pre-trial motion, which prohibited any mention of Harrington's failure to disclose the password to the security camera system, there was no prosecutorial misconduct.

The district court sentenced Harrington to an indeterminate term of incarceration not to exceed twenty-five years for possession with intent to manufacture or deliver (methamphetamine), merging it with the possession-of-a-controlled-substance (methamphetamine) count, two years for the child-endangerment conviction, five years for failing to affix a drug tax stamp, and one year for the domestic abuse assault conviction, all to run concurrently. Harrington now appeals.

II. Standards of Review.

This case involves a mix of standards of review for the various claims. First, we review a district court's decision on claims of prosecutorial misconduct for abuse of discretion, which occurs when “a court acts on grounds clearly untenable or to an extent clearly unreasonable.” State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) (quoting State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006)). For prosecutorial misconduct claims that touch on constitutional issues, our standard of review is de novo. State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009).

We evaluate a sufficiency-of-the-evidence challenge for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). We give great deference to the jury's verdict and uphold it if substantial evidence supports it; “[s]ubstantial evidence is evidence sufficient to convince a rational trier of fact the defendant is guilty beyond a reasonable doubt.” Id. “[W]e view the evidence in the light most favorable to the State, including all ‘legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.’ ” Id. (citation omitted). As for the hearsay claim, a determination that evidence is or is not hearsay is reviewed for correction of errors at law. State v. Buelow, 951 N.W. 879, 884 (Iowa 2020).

III. Discussion.

Harrington raises four issues on appeal. Two stem from prosecutorial misconduct: that Harrington was denied a fair trial due to prosecutorial misconduct and that prosecutorial misconduct led to a violation of his right against self-incrimination. Two issues relate to evidentiary rulings by the district court: first, that there was insufficient evidence for the jury to convict Harrington of possession with intent to manufacture or deliver a controlled substance, failure to affix drug tax stamp, and possession of a controlled substance, and second, that the district court erred in admitting hearsay evidence. We start with the two theories alleged involving prosecutorial misconduct and finish with the evidentiary questions.

A. Prosecutorial Misconduct—Vouching

Harrington's first prosecutorial misconduct claim revolves around the State's rebuttal argument that “it was easy for Emilee in one way: because she knew this whole time that she was telling the truth.” At the hearing on the motion for new trial, the State argued this statement responded to Harrington's closing argument, which focused on disputing Emilee's version of events. To the State's point, in his closing argument, Harrington argued against the credibility of Emilee, claiming that the State's law-enforcement witnesses defaulted to believing that Emilee was telling the truth. Harrington further stated that the evidence “relies on the word of Emilee ․ And her word is reliable? Not reliable? But certainly open to questioning ․ I'd ask you to set aside her testimony.” To prevail on a due process claim based on prosecutorial misconduct, Harrington must demonstrate both that prosecutorial misconduct occurred and that the prosecutorial misconduct resulted in prejudice that denied him a fair trial. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003); see also State v. Leedom, 938 N.W.2d 177, 192 (Iowa 2020) (detailing the requirement for a showing of misconduct and resulting prejudice to succeed on a prosecutorial-misconduct claim). Furthermore, Harrington must demonstrate that “the prosecutor acted with reckless disregard of this duty or intentionally made statements in violation of an obvious obligation, legal standard, or applicable rule that went beyond an exercise of poor judgment.” State v. Coleman, 907 N.W.2d 124, 139 (Iowa 2018); see also Leedom, 938 N.W.2d at 192 n.3 (recognizing a difference in what a defendant is required to prove for a claim of “prosecutorial misconduct” compared to a claim of “prosecutorial error”).

To determine whether the actions of the prosecutor rise to the level of ordering a new trial, we look at “(1) the severity and pervasiveness of misconduct; (2) the significance of the misconduct to the central issues in the case; (3) the strength of the State's evidence; (4) the use of cautionary instructions or other curative measures; [and] (5) the extent to which the defense invited the misconduct.” Coleman, 907 N.W.2d at 140. Isolated statements will not support an order for a new trial based on prosecutorial misconduct. Id. at 140–41; see also Graves, 668 N.W.2d at 869 (finding that only multiple statements about the defendant being a liar were sufficient for a successful claim of prosecutorial misconduct).

Regarding the specific statements that Harrington challenges, isolated statements from closing argument are allowed additional latitude as, “[i]n closing arguments, counsel ․ may draw conclusions and argue permissible inferences which reasonably flow from the evidence presented.” State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993). In addition, “misconduct does not reside in the fact that the prosecution attempts to ․ boost [the credibility] of the State's witnesses; such tactics are not only proper, but part of the prosecutor's duty.” State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006). “Instead, misconduct occurs when the prosecutor seeks this end through unnecessary and overinflammatory means that go outside the record or threaten to improperly incite the passions of the jury.” Id.

In ruling on the motion for new trial, the district court found Harrington was not prejudiced by the single reference to Emilee's truthfulness and thus was not denied a fair trial. And without now deciding if this statement was in fact vouching for Emilee's truthfulness, the district court believed it was and acted accordingly. In this instance, several factors weigh in favor of the district court's ruling. First curative measures were given. When Harrington's trial counsel objected, the district court immediately stated: “All right. I think you should ․ be admonished not to do that and that the—it's improper for either party to vouch for any witness, in other words, to say, ‘That witness is a truthful person.’ That's a decision for the jury to make.” Second, this single reference was not severe or pervasive. And, given the district court's response to Harrington's objection, there was no prejudice to Harrington. For these reasons, we find no abuse of the district court's discretion in denying a new trial.

B. Prosecutorial Misconduct—Self-Incrimination

Harrington's second prosecutorial-misconduct claim—his claim regarding the constitutional protection against self-incrimination—arises from a statement made by the prosecutor in rebuttal argument, which the State asserts needs to be reviewed in context of the full argument, “My job today is not to prove to you that nothing beyond the slimmest doubt. It's beyond a reasonable doubt. That doesn't mean beyond any possible doubt. The only person in this room that was there is at this table right here.” (Emphasis added.) Harrington noted the prosecutor pointed at Harrington when referencing “the only person.” Harrington argues this was an improper comment on his right to remain silent and violated the district court's ruling on the pre-trial motion that prohibited the State from introducing evidence that Harrington failed to share the password to the security camera system seized at his residence by law enforcement. Yet, the complained-of statement does not relate to Harrington's security camera system, password, or refusal to disclose the password to law enforcement. On the statement's face, there was no violation of the district court's pre-trial ruling.

Addressing the violation of the right against self-incrimination, the Fifth Amendment to the United States Constitution provides, “No person ․ shall be compelled in any criminal case to be a witness against himself ․” U.S. Const. amend. V. The Fifth Amendment privilege against compulsory self-incrimination is applicable to the states via the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 6 (1964). Although the Iowa Constitution does not contain the same textual provision, the right to be free from compulsory self-incrimination is protected by the due process clause of the Iowa Constitution. See Iowa Const. art. I, § 9; State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011).

Even if we were to find the comment was improper and implicated Harrington's right against self-incrimination, we need not order a new trial if the error was harmless beyond a reasonable doubt. See State v. Nelson, 234 N.W.2d 368, 372 (Iowa 1975). So, the question is whether it appears beyond a reasonable doubt that the alleged error did not affect Harrington's right to a fair trial. See State v. Porter, 283 N.W.2d 351, 353 (Iowa 1979) (applying harmless-error analysis to claim of prosecutorial misconduct that violated a defendant's privilege against self-incrimination). As with the vouching comment, the brief reference was not severe or pervasive and with the other evidence presented, we find that the State met its burden to show that the indirect statement did not contribute to the guilty verdict or deprive Harrington of a fair trial. Cf. Chapman v. California, 386 U.S. 18, 26 (1967) (holding the prosecutor's “machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners’ version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession”). Moreover, we also note that the district court specifically instructed the jury that no inference of guilt shall be drawn from the fact that Harrington did not testify. On de novo review, we find even if the prosecutor improperly commented on Harrington's right to remain silent, the error was harmless and we find no violation of the pre-trial ruling over the security camera passwords.

C. Insufficient Evidence

Harrington contends there was insufficient evidence of his constructive possession of the drugs and his intent to manufacture or deliver them. See State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973) (requiring a showing of actual knowledge or evidence of incriminating circumstances or statements to infer knowledge of the accused of the presence of substances if exclusive possession of the contraband cannot be shown). Several charges required proof of Harrington's knowledge that he possessed methamphetamine and the jury was instructed that “a person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is in constructive possession of it. A person's mere presence at a place where a thing is found or proximity to the thing is not enough to support a conclusion that the person possessed the thing.”

Here, Harrington claims that the State could only show his presence at the home and failed to present sufficient evidence for the jury to convict him of the possession of the drugs with intent to manufacture or deliver a controlled substance under a theory of constructive possession. Instead, Harrington asserts Brewer was “closer to the drugs in the garage” and that Harrington “did not live alone,” so the State failed to show Harrington's dominion and control over the drugs. Focusing on these assertions, to prove a charge of constructive possession, “the State must establish beyond a reasonable doubt that the accused knew of the presence of such substances on premises occupied and controlled by him, either exclusively or jointly with others and the nature of the material.” Id. Furthermore, “[c]onstructive possession is recognized by inferences.” State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008). In making inferences, a jury may look to:

(1) incriminating statements made by the person; (2) incriminating actions of the person upon the police's discovery of a controlled substance among or near the person's personal belongings; (3) the person's fingerprints on the packages containing the controlled substance; and (4) any other circumstances linking the person to the controlled substance.

Id.

We review to determine if there is substantial evidence to support the verdict. See State v. LuCore, 989 N.W.2d 209, 215–16 (Iowa Ct. App. 2023). Here, we find sufficient evidence to underlie the jury's finding of Harrington's guilt on the drug charges; the district court did not err in denying Harrington's motion for judgment of acquittal. See State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021) (noting that the only question is whether the evidence supports the finding actually made, not if it supports a different conclusion). We look to the details linking Harrington to the controlled substances. First the jury learned that not only were drugs found in a tote in the garage, but law enforcement discovered other drug paraphernalia on a further search throughout the garage and house, even some next to Harrington's other personal items—such as a bag containing a hypodermic needle along with Harrington's identification card. The sheer volume of drug paraphernalia discovered spread throughout Harrington's residence and garage supports proof of Harrington's knowledge and possession of the controlled substance and intent to manufacture or deliver. On top of that, Emilee testified she assessed Harrington as being impaired on the day of the incident. And, a jury could have looked to the statements made by Harrington in the booking video that reference the security camera system and that he “does not have it for no reason.” Likewise, a jury could presume that the extensive security camera system around the property was to protect Harrington's business of buying and selling contraband. Finally, a jury could conclude that because the items were mixed with items that Harrington does not dispute ownership of, those items and their proximity to the drug paraphernalia made it more likely that Harrington had constructive possession of the controlled substances. Although Harrington contends that it was more likely that others possessed the controlled substances, here a jury could have found the evidence supported Harrington's constructive possession beyond a reasonable doubt. So, viewing the evidence in the light most favorable to the State, we find the evidence is sufficient to support the conviction.

D. Hearsay

Harrington's hearsay claim involves a statement by Deputy Heck. During direct examination, the State asked, “After receiving—Did you receive additional information from Emilee at that point? And I'm not going to ask you what—what exactly she told you. But did she tell you additional details about the incident ․ ?” Deputy Heck responded that Emilee “stated that [Harrington] appeared that he was impaired or high, also stated that he had choked their—their five-year-old child.” Harrington objected to the statement as hearsay, and the district court overruled the objection. Harrington argues on appeal that this statement was impermissible hearsay and the district court erred in admitting it. Additionally, he claims even if the improper testimony was cumulative, the officer's reinforcement of the earlier testimony is improper. But, in the order of witnesses, Emilee led and she told the jury, without objection and before Deputy Heck testified, that Harrington later told her that he was “messed up” on the day she came to his home. Furthermore, before the objected-to statement, Deputy Heck had already testified, without objection, that Emilee reported in her 911 call that Harrington choked the child. He had also commented on Emilee's assessment of Harrington's impairment level.

Citing State v. Mann, the State contends that even if Deputy Heck's testimony included hearsay, admission was allowed to show the deputy's subsequent and responsive conduct of obtaining a search warrant. 512 N.W.2d 528, 536 (Iowa 1994) (holding that statements made by other officers to the officer testifying would be admissible to show that officer's responsive conduct of taking the victim to the hospital). Additionally, the State urges that the excited utterance exception to the hearsay rule also applies to Emilee's description to the deputy over what had just happened to her and the children. See State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999) (finding a statement elicited by a detective during questioning the declarant shortly after the occurrence was an excited utterance and thus admissible hearsay). Finally, the State maintains that the hearsay was cumulative, and so no prejudice came from it. The arguments are well taken but we find no reversible error in allowing the evidence for another reason based upon the record made at trial.

Hearsay evidence is a statement “[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); State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021). And “[t]he rule prohibiting hearsay evidence only 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). Here, the statements from Deputy Heck were offered into evidence to prove the truth of the matters that they assert: that Harrington was impaired or high on the day in question and that he choked his child. These assertions were used by the State to support the drug charges as well as the child endangerment charge.

Even so, improperly admitted hearsay is not grounds for reversal unless it is prejudicial to the nonoffering party. State v. Thompson, 982 N.W.2d 116, 121 (Iowa 2022). Given that “a trial 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,” all improperly admitted hearsay is considered prejudicial unless the record affirmatively establishes otherwise. Id. (citation omitted); see also State v. Huser, No. 10-2067, 2011 WL 6079120, at *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.”). But hearsay evidence that is merely cumulative is often not prejudicial. State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011); 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.”).

In this instance, first, Emilee testified at trial. While on the stand, and before Deputy Heck made the hearsay statement at issue here, Emilee testified that Harrington's “eyes were bulging out of his head, and he just wouldn't stop yelling” and that he twice put his hands around their child's neck. She confirmed that after the fact, Harrington told her he was impaired. This testimony from Emilee communicated substantially the same information as the later hearsay statement from Deputy Heck, making the hearsay cumulative. Because it was cumulative, the statements did not harm Harrington's case to a level requiring reversal, but instead merely repeated information already in the record from Emilee's testimony.² As we find no prejudicial error by the district court here, reversal is not warranted.

IV. Conclusion.

Harrington's claims of prosecutorial misconduct fail because the isolated statements by the State during rebuttal closing argument do not amount to prejudice that denied him a fair trial. Harrington's protection from self-incrimination was not implicated here, as the State met its burden to show harmless error from the comment. There is sufficient evidence supporting the jury's verdict on the drug charges, and the hearsay statement, while improperly admitted, did not lead to harm that requires reversal. For these reasons, we affirm the rulings of the district court.

AFFIRMED.

FOOTNOTES

1.   Emilee also had described behavior consistent with drug use by Harrington.

2.   We caution that insertion of hearsay testimony may risk retrial, thus chose your evidence carefully.

GREER, Judge.