State of Iowa v. William Russell Griffin

IN THE COURT OF APPEALS OF IOWA

No. 22-0472
Filed January 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

WILLIAM RUSSELL GRIFFIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Greene County, Thomas J. Bice

(trial) and Christopher C. Polking (posttrial motions), Judges.

William Griffin appeals his convictions for two counts of stalking.

AFFIRMED.

Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., Chicchelly, J., and Gamble, S.J.*

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

(2024).
2

GAMBLE, Senior Judge.

On appeal, William Griffin challenges the sufficiency of the evidence to

support his convictions on two counts of stalking. Griffin also contends the court

erred in failing to make the proper inquiry of defense counsel and himself when

defense counsel moved to withdraw and declare a mistrial. Griffin maintains the

court erred in denying his motion for new trial based on him not being present at a

deposition. Finally, Griffin claims the trial court erred in admitting hearsay

statements in a police report. We affirm.

I. Background Facts.

After several months of contention between Griffin and Dalton Defenbaugh

and Dalton’s mother, Jodi Defenbaugh,1 Griffin was charged with first-degree

criminal mischief, stalking Dalton, stalking Jodi, and trespass resulting in damage

in excess of $300.

The case proceeded to a jury trial. After three days of trial, which included

some of the defense witnesses and the State proposing a new plea offer, defense

counsel asked that the following record be made:

The first thing, is my client is upset that Vicki Mitchell was deposed
without his presence. Vicki Mitchell was deposed after we had a
deposition where my client, we had to cancel the deposition because
my client ended up yelling and cussing at the prosecutor so we
stopped the deposition. He waived his presence at a subsequent
deposition and then Vicki Mitchell’s deposition. I spoke with him and
he told me that he was fine not having Vicki Mitchell there. I sent him
a waiver. My understanding was that he had a waiver signed and
my client was upset. [client interjecting] My client was upset about
the substance of Vicki Mitchell’s deposition, indicating he didn’t think
she would have said what she said if he was there. [client
interjecting]

1 Because Dalton and Jodi share a surname, we will refer to them by their first

names.
3

. . . Your Honor, we are at a position now where we have—
this is an ongoing kind of conflict and, quite frankly, I’m inclined at
this point to ask for a mistrial to allow this whole case—Ms. Mitchell
perhaps to be re-deposed with my client present, ask to withdraw.
There’s been an—essentially, there’s been an extreme breakdown
between me and my client. Our relationship is irretrievably broken
at this place.

The court asked that counsel first address “the original purpose of this

record and that is the plea offer that was made and whether or not your client

accepts or rejects either one of the offers that were tendered.”

[DEFENSE COUNSEL]: Okay. Mr. Griffin, did you have an
opportunity to speak with me about the offer from [the prosecutor]?
MR. GRIFFIN: Yeah, I wanted to be present for these offers
and that way I could maybe possibly negotiate a better plea for
myself.
THE COURT: You were present, sir, when the offers were
made just here this morning. You were present.
MR. GRIFFIN: I meant, wanted to be able to talk with you
about possibly getting a different resolution for this. I’m not against
resolving all these matters but I want it done in a manner that I’m not
having to plead guilty to felonies and bunch of costs and jail time and
there’s other ways this could get worked out, I think that would be
adequate for everybody. I’m trying to get my life together here.
THE COURT: Long story short, are you rejecting on a
voluntary, knowing, informed basis, the offers that have been
presented? Is that true?
MR. GRIFFIN: Yes.

Turning to the motion for mistrial, the prosecutor noted the case was more

than a year old, Griffin had already had other attorneys withdraw, and the jury trial

was “probably ninety percent” done. He argued there was no good cause for a

mistrial and to grant one would be a waste of judicial and public resources.

Defense counsel again noted his relationship with Griffin was “irretrievably

broken” and stated, “If the court forces me to go forward at this point, I’m afraid I’ll

be ineffective. I don’t take these things lightly.”
4

The court acknowledged defense counsel’s unenviable position but found

“what we have here is manipulation.” The court continued:

I believe the defendant is, if you will, trying to drive the bus and that’s
not the way our system works. You know, when things aren’t going
his way, all of the sudden we have a motion for mistrial after three
full days of testimony. We are on the closing portions of this trial and
I agree with the State that to pull the plug on this trial at this point
would be unfair to the State. It would be unfair to the system. It
would be somewhat offensive to this court and the court is convinced
that we need to proceed. If there are witnesses that need to be
deposed, I’ll give you whatever recesses are appropriate to take
those depositions before people are allowed to testify. The court
does note that this case has been on file now for over a year. The
court also notes, consistent with the comments made, that there
have been numerous lawyers that have been appointed and then
withdrawn and, frankly, the court believes that this defendant is a
difficult person to work with just because of his attitude and his
attempt to manipulate what’s going on, his counsel, the court, and
the system. And, frankly, this court will not permit it. So your motion
in that regard is overruled and we’ll proceed with the final witnesses,
any rebuttal testimony there might be, arguments and we are going
to get this case submitted.

The defense resumed presenting its witnesses, and the case was submitted

to the jury.

The jury acquitted Griffin on the criminal-mischief and trespass counts and

found him guilty of each count of stalking. Defense counsel was allowed to

withdraw, new counsel was appointed to represent Griffin, and additional time was

granted to allow transcripts to be prepared and new counsel to file posttrial

motions. The posttrial motions were prepared, resisted by the State, and orally

argued. The district court prepared a lengthy written ruling denying the motions

for new trial. Griffin appeals.
5

II. Discussion.

Griffin first contends there is insufficient evidence to sustain the stalking

convictions.

Sufficiency of the evidence. “In evaluating sufficiency-of-evidence claims,

we will uphold a verdict if substantial evidence supports it. Evidence is considered

substantial if, when viewed in the light most favorable to the State, it can convince

a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.

Wilson, 941 N.W.2d 579, 584 (Iowa 2020) (cleaned up) (quoting State v. Trane,

934 N.W.2d 447, 455 (Iowa 2019)). In reviewing sufficiency-of-the-evidence

claims, it is not the appellate court’s place “to resolve conflicts in the evidence, to

pass upon the credibility of witnesses, to determine the plausibility of explanations,

or to weigh the evidence; such matters are for the jury.” State v. Brimmer, 983

N.W.2d 247, 256 (Iowa 2022) (citation omitted).

In its ruling on posttrial motions, the trial court provided an extensive

summary of the evidence presented at trial.2 Viewing the evidence in the light most

favorable to upholding the verdict, a reasonable jury could find these facts, as

noted by the trial court:

[Griffin] was agitated and upset when Deputy [Cole] Crowder
spoke to him on June 27, 2020, regarding complaints from [Dalton]
about [Griffin]’s dog and his son . . . driving around town on a
chopper bike. Griffin felt that [Dalton] was attacking him and his son
for petty things. [Griffin]’s demeanor was described as “very upset,”
“furious,” “disgusted,” and his voice was raised. The deputy advised
Griffin to ignore Dalton and not let him get a rise out of him and
“[Griffin] did not seem happy with the advice I had given him.”

2 Due to posttrial substitution of counsel, trial transcripts were available to the

district court and the parties before posttrial motions were addressed. The judge
who ruled on the posttrial motions was not the trial judge, and it is evident by the
court’s summation of the evidence that the transcripts were thoroughly reviewed.
6

[Dalton] testified that he lived next door to [Griffin] in Rippey,
Iowa. His mom is [Jodi] and she also lived in Rippey. He moved into
his house in December of 2018 after doing substantial renovations
since its purchase in June of 2018. Even during renovations,
problems arose with [Griffin] trespassing across his property, letting
his dog run loose and go to the bathroom on his property, leaving
trash on Dalton’s property weekly (including nails and broken glass).
When asked to address these situations, [Griffin] would respond with
“go fuck yourself,” “I don’t abide by your rules,” “my dog is not your
deal,” “he can do pretty much anything he wants,” “his dog can go
anywhere it wants,” “I don’t really care anything you have to say,”
“nobody’s going to change anything.”
Dalton then put up a privacy fence. This led to a property line
dispute and issues regarding moving rocks and a lilac bush that were
allegedly on Dalton’s property. These led to further discussions and
anger from [Griffin], “I just constantly get, go fuck yourself. I’m not
going to do what you say. I can do whatever I want.”
[Griffin] had a scowling bad attitude. [Griffin] would park his
vehicles in front of Dalton’s mail box and this would prevent his mail
from being delivered.
In February of 2020 Dalton witnessed [Griffin] threaten his
mother Jodi. [Griffin] told her in a threatening manner to keep his
name out of her mouth, or he would keep it out for her. This was due
to a Facebook post where Jodi thought a dog posted as running
loose was Griffin’s. He continued yelling back and forth at Jodi, very
angry. After numerous times telling him to leave, Griffin finally did.
After this incident, [Griffin] would start to drive very slowly if he
saw Dalton. Dalton felt this was to try and scare and intimidate him.
Sometimes Griffin would yell at him from his car. Dalton made
regular reports to the police about loose dogs and being yelled at,
and Griffin told him to keep snitching and he would see what
happens. Dalton believes he made police reports about Griffin at
least four or five times in 2020.
When out in his yard, [Griffin] would scowl and say things like,
what the fuck are you looking at, and if you don’t give me some
respect I’m going to teach you some, I’ll catch you somewhere.
Dalton believes this happened at least [twenty-five] times. He found
it to be very intimidating.
Around the end of April 2020 Dalton noticed that his dog was
getting sick, and throwing up. There was a dead patch of grass near
the privacy fence. Griffin was asked what he had put on the grass in
case the dog might need veterinary treatment. Griffin told Dalton to
go fuck himself and he would not say what was on the grass. Jodi
was present and also asked Griffin what he put on the grass. Griffin
then stated that he was going to beat Dalton in the head until he was
. . . like his sister[, a person with disabilities]. This scared Dalton.
7

On May 3, 2020 Dalton returned home from a weekend
camping trip to find several windows broken out of his home, a
running garden hose stuck into the basement, and tools and money
stolen from his house. There was eight inches of water in the
basement and a wall became warped because of it. Dalton bought
three motion activated security cameras due to this incident. The
cameras became another source of conflict and contention with
Griffin.
When asked if he knew anything about the damage, Griffin
stated that someone must have taught him a lesson or taught him
some respect, that someone had made him pay. Jodi was present.
Overall Dalton estimated that between April 2019 and June
28, 2020, that Griffin had cussed at him between [fifty] and 100 times.
He estimated that Griffin had threatened him during this time period
around [twenty-five] times. He testified that he tried to ignore it at
first, but began to feel terrorized.
Dalton awoke on June 28, 2020, to his mom screaming. She
had seen activity on the cameras and came to Dalton’s house to find
it vandalized with red paint. His truck window was also broken.
There was also some paint on the truck. Counts I and IV were related
to this incident. Mr. Griffin was found not guilty of those counts, so
the court does not believe that the evidence related to the criminal
mischief itself can be seen to support his convictions for stalking
(although his behavior afterward would be relevant to the stalking
counts). The jury clearly did not find any criminal mischief or
trespass related to the June 28 incident to have been proven beyond
a reasonable doubt as involving Griffin as the perpetrator.
Dalton testified that he is in the process of finding a new home
as he is tired of being scared to live in his own home.
[Jodi] testified that Griffin is her cousin, on her mom’s side.
Her mother is Vicki Mitchell.
She had a conversation with Griffin that Dalton was going to
put up a privacy fence. She said he got upset and said they had the
property line wrong. When asked about the need to move some
rocks and a lilac bush she noted that the rocks did get moved and
says Griffin told her to go ahead and trim the bush. . . . However,
when she told Griffin more rocks needed move, he became very
angry and said he wasn’t doing anything.
Jodi corroborated that she would often see trash in Dalton’s
yard near Griffin’s property line, including glass, nails, and beer
bottles. She said this occurred “all the time.”
Jodi testified that [Griffin]’s behavior abruptly became more
aggressive and scary around the end of February 2020. This was
when she commented on the Facebook post saying a loose dog
might be Griffin’s. She said he pulled up to her driveway and started
screaming at her to keep his name out of her mouth, and that if she
didn’t, he was going to do it for her. She took this to mean he would
8

hurt her. She described him as extremely angry at the time and
screaming.
After this, she said [Griffin] would drive past her house glaring
at her and point his hands like he was shooting at her. This testimony
caused her to become so distraught on the stand that she needed a
break.
She testified that Griffin would tell her to fuck off, that he
doesn’t play by the cops’ rules, that he does whatever he wants to
do, that they would get what pigs get.
She corroborated the damage found to Dalton’s house on
May 3, 2020. A few days later she and Dalton were outside when
[Griffin] came out. He asked her what the fuck she was looking at.
She testified that [Griffin] stated that someone must have taught
Dalton a lesson. She accused Griffin of doing it and he said that he
had told her that he would get her.
Jodi recalled another incident in May of 2020 when she was
walking with her daughter and their dogs when [Griffin] pulled up in
his vehicle and began revving his engine. She stated that she and
her daughter were both scared and upset by this.
Jodi recalled the incident when Dalton’s dog got sick. Dalton
was looking over the fence at the patch of dead grass in Griffin’s yard
when he came out and asked what the fuck he was looking at. Dalton
asked him what was sprayed and Griffin told him to fuck off and that
he doesn’t have to do anything he says, or listen to him. Jodi then
asked him to please tell as the dog was sick, and he told her to fuck
off and that she needed to do something about her son or he was
going to beat his head in so that she had two . . . kids to take care of
instead of one.
After finding the damage on June 28, 2020, at some point
[Griffin’s son] came out with their dog. She yelled at him to get his
dog. Griffin then came out a short time later screaming to not
threaten his son. Vicki Mitchell was also there. Griffin told Vicki to
do something about Jodi and Dalton, because Vicki knew what Griffin
was capable of.
Jodi told Griffin he needed to fix the damage and he sent a kid
over to help clean up.
Jodi has found a place to live outside of Rippey as she does
not feel safe, she is afraid of Griffin, scared for herself, scared for her
son, afraid to go out by herself for walks or runs, scared to be at her
house by herself.
Deputy Shane Allen executed a search warrant on June 28,
2020, on Griffin’s residence looking for evidence related to the
criminal mischief. [Griffin] made statements that he was getting tired
of people putting him and his son in a place of danger. [Griffin]
acknowledged struggling . . . . [Griffin] made statements that he just
wanted left alone and he believed the Defenbaughs were harassing
him. He was upset they had brought his son into it. He questioned
9

whether he was just supposed to take that behavior. He described
Dalton as the idiot next door and was upset he had called the police
on his dog and on his son.
Vicki Mitchell testified that it made her nervous to be around
Griffin, because he made and carried out a lot of threats. She
described hi[m] as having a temper. She was the executor of her
brother’s estate, Michael Pittman, who had left his house to Griffin.
Griffin moved back to Rippey from Florida to move into the house
after Michael died. She stated that she got along pretty well with
Griffin at that time.
Vicki testified that she one time heard Dalton discuss the issue
of Griffin’s dog running loose with Griffin. She says that Griffin
responded with fuck you, I don’t have to. She also discussed the
incident on June 28, 2020, when Jodi told [Griffin’s son] to keep his
dog out of the yard. She said that [Griffin] came out angry accusing
them of threatening his son. Griffin offered [his son]’s friend $100 to
go over and help them clean up the damage.
Vicki tried to have a conversation with Griffin about the
damage. She asked him to just stop all the conflict, leave it alone
and drop it. He responded: You know me. I can’t. I’m not made that
way. I can’t just drop something. I’m going to get it finished. I’m
going to finish it. Somebody’s going to get hurt. It ain’t gonna be
me.
She told him he better not hurt her daughter or grandson and
he said well, somebody’s going to get hurt.
She asked him if he had honestly threatened to beat Dalton’s
head in and make him . . . like his sister and he said he may have,
yeah, I guess I did. She asked him how he would feel if someone
made a threat like that to [his son] and Griffin said he would kill them.
She asked him what have they done to you, and he said I don’t know,
I’m just going to finish it, if they’d just shut their goddamn mouth.

The court also noted the evidence at trial showed Dalton could respond

angrily to Griffin, and others, and would yell and cuss. The court wrote:

The gist of the defense appeared to be two parts. One,
denying that explicit threats were made, and two, pointing to the bad
behavior of the Defenbaughs as far as arguing and cursing. There
are two problems for the defendant in this evidence. First, even if
the Defenbaughs also acted badly, that provides no legal justification
for the defendant’s actions. There is no justification defense to
stalking. Put in the old adage, two wrongs don’t make a right. If
[Griffin] believed the Defenbaughs were acting wrongly, his remedies
were to contact the authorities, and/or pursue civil legal remedies.
Secondly, by trying to portray the Defenbaughs as bad actors, the
defendant also ends up showing that he had anger, and strong
10

negative feelings against them that can be seen as his motive in
engaging in his stalking behaviors. . . .
[Griffin] himself acknowledged that he was angry at the
Defenbaughs for several reasons including the dispute over his
father’s estate, the property line dispute, the dog issues, the security
cameras, the Facebook post, his girlfriend moving out of his house,
and what he saw as threats towards his son. He says he felt “baited”
by them into acting badly. He admitted he felt he needed to confront
them over the Facebook post. He acknowledged that in the heat of
the moment he runs his mouth without thinking. He admitted making
threats, but stated that he did not believe they were made in such a
manner that would cause a reasonable person to feel threatened, but
then acknowledged that what he said could be interpreted differently
than he intended. He stated more than once that he felt he needed
to “one up” the statements he was getting from the Defenbaughs,
and that he told Dalton that someone needed to teach him some
respect.

The jury was instructed that to find Griffin guilty of stalking Dalton, the State

had to prove: (1) During the timeframe of April 2019 through and including June

2020, the Griffin “purposefully engaged in a course of conduct directed at [Dalton]

that would cause a reasonable person either to feel terrorized, frightened,

intimidated, or threatened, or to fear that [Griffin] intended to cause bodily injury to,

or the death of, [Dalton] or a member of [Dalton]’s immediate family” and (2) Griffin

“knew or should have known that his course of conduct would cause a reasonable

person either to feel terrorized, frightened, intimidated, or threatened, or to fear

that [Griffin] intended to cause bodily injury to, or the death of, [Dalton] or a member

of [Dalton’s] immediate family.” The jury received an identical instruction regarding

the count alleging Griffin stalking Jodi, but her name was substituted for Dalton’s.

A “course of conduct” was defined in the instructions as meaning:

(a) repeatedly maintaining a visual or physical proximity to a
person without legitimate purpose;
(b) repeatedly utilizing a technological device to locate, listen
to, or watch a person without legitimate purpose; or
11

(c) repeatedly conveying oral or written threats, threats
implied by conduct, or a combination thereof, directed at or toward a
person.

“Repeatedly” was defined as “on two or more occasions.”

Despite Griffin’s protestations about Dalton’s conduct, we concur with the

district court’s observation that two wrongs don’t make a right. The evidence

outlined above is more than sufficient to support a reasonable jury finding that

Griffin “on two or more occasions” “convey[ed] oral . . . threats, threats implied by

conduct, or a combination thereof, directed at or toward” both Dalton and Jodi.

Dalton testified Griffin threatened him more than twenty times and Griffin himself

admitted making threats to Dalton several times. Jodi testified Griffin threatened

her and Dalton more than three times.

Griffin denied his threats could reasonably induce terror, fear, or intimidation

but we conclude substantial evidence was presented from which a jury could find—

at the very least—Griffin should have known Dalton and Jodi would reasonably

feel terrorized, frightened, intimidated, or threatened, or fear that Griffin intended

to cause bodily injury to each of them or their family members. Griffin himself told

Vicki Mitchell he “may have” threatened to beat Dalton so badly that his mother

would need to care for him. Substantial evidence supports the convictions.

Substitution of counsel. “Our review of a district court’s denial of a request

for substitute counsel is for abuse of discretion. To establish an abuse of

discretion, [the defendant] must show that ‘the court exercised the discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.’”

State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001) (internal citation omitted).
12

While a criminal defendant has a right to counsel under the Sixth

Amendment, the defendant is not guaranteed a “meaningful relationship between

[the] accused and [their] counsel.” Id. (citation omitted). “To justify the

appointment of substitute counsel, a defendant must show sufficient cause” such

as “a conflict of interest, irreconcilable conflict, or a complete breakdown in

communication between the attorney and the defendant.” Id. at 778–79 (citation

omitted). And unless the defendant “has been denied counsel or counsel has a

conflict of interest,” the defendant must show prejudice. Id. at 779 (citation

omitted).

In considering a request for substituted counsel, the trial court must balance

“the defendant’s right to counsel of his choice and the public’s interest in the prompt

and efficient administration of justice.” Id. (citation omitted). The district court

“should not allow ‘last-minute requests to substitute counsel . . . to become a tactic

for delay.’” Id. (alteration in original) (citation omitted); see also State v. Tejeda,

677 N.W.2d 744, 750 (Iowa 2004) (“Last-minute requests for substitute counsel,

insofar as they constitute a delay tactic, are disfavored.”).

Here, counsel’s motion for mistrial and substitution of counsel came after

three days of a jury trial—after the State had presented its case-in-chief and the

defense had called witnesses. And the court made a specific finding Griffin was

attempting to manipulate the process. On our review, we conclude the district

court appropriately balanced the necessary considerations.

But Griffin asserts the court failed to make the proper inquiry about the

breakdown of the attorney-client relationship when defense counsel moved for

mistrial. See Tejeda, 677 N.W.2d at 750 (explicitly recognizing “there is a duty of
13

inquiry once a defendant requests substitute counsel on account of an alleged

breakdown in communication”). We begin with the observation that Griffin did not

request substitute counsel; defense counsel did. Moreover, defense counsel

explained why Griffin was unhappy about his absence from Vicki Mitchell’s

deposition and the pretrial questioning of another defense witness; Griffin

interrupted and claimed not to have waived his presence at depositions and

informed the court he had wanted to try to negotiate a better plea deal than the

one offered during trial. So, the trial court was made aware of the nature of the

communication difficulties between Griffin and defense counsel. Cf. id. at 751

(noting “there is nothing suggesting the court determined the nature of the alleged

breakdown in communication”).

In any event, Griffin does not argue, much less show, he was prejudiced by

the denial of defense counsel’s motion to substitute counsel. He would be hard-

pressed to show prejudice since he was acquitted of two of the four counts; Griffin

was acquitted of first-degree criminal mischief, which was the only felony count.

He was convicted of two aggravated misdemeanors. We cannot say there was an

abuse of the court’s considerable discretion in denying the motion for mistrial and

substitution of counsel.

Absence from Vicki Mitchell deposition. At the time of this trial, Iowa Rule

of Criminal Procedure 2.27 provided:3

3 Iowa Rule of Criminal Procedure 2.27 now also allows the defendant’s absence,

“With the consent of the prosecuting attorney, the defendant may waive presence
at a deposition. The defendant’s attorney shall make a record of the waiver at the
deposition. Otherwise, the defendant is required to be present subject to
rule 2.13(5) and rule 2.13(6)(c).” Iowa R. Crim. P. 2.27(1)(c).
14

(1) Felony or misdemeanor. In felony cases the defendant
shall be present personally or by interactive audiovisual closed circuit
system at the initial appearance, arraignment and plea, unless a
written arraignment form as provided in rule 2.8(1) is filed, and
pretrial proceedings, and shall be personally present at every stage
of the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise
provided by this rule. In other cases the defendant may appear by
counsel.
(2) Continued presence not required. In all cases, the
progress of the trial or any other proceeding shall not be prevented
whenever a defendant, initially present:
a. Is voluntarily absent after the trial or other proceeding has
commenced.
b. Engages in conduct justifying exclusion from the
courtroom.

“We review the district court’s interpretation of our criminal rules of procedure for

correction of errors at law.”4 State v. Folkerts, 703 N.W.2d 761, 763 (Iowa 2005).

Griffin asserts the court erred in not granting a new trial because he was not

present at the deposition of Vicki Mitchell, contending he did not have the ability to

waive his presence at a deposition. In Folkerts, our supreme court observed, “We

have previously held a defendant cannot waive his or her right of confrontation in

order to be absent from a discovery deposition of an eyewitness to a crime.” Id.

But the court disavowed its prior rulings concluding, “To avoid the likelihood that a

tainted identification may take place during the part of the deposition when the

parties question an eyewitness regarding the identity of the perpetrator of the

crime, the district court should allow a defendant to be absent from that part of the

deposition.” Id. at 766; see also Van Hoff v. State, 447 N.W.2d 665, 674 (Iowa Ct.

App. 1989) (noting “a discovery deposition not taken for use at trial is not a ‘stage

4 Griffin contends our review should be de novo because he raises a constitutional

issue.
15

of trial’” and a defendant’s presence is therefore not required under the rules of

criminal procedure); Beloved v. State, No. 17-1908, 2019 WL 1300224, at *4 (Iowa

Ct. App. Mar. 20, 2019) (concluding Beloved’s waiver of presence at a deposition,

“to any extent it was necessary, was knowing, intelligent, and voluntary”).

Generally, a defendant is allowed to waive his constitutional rights so long

as the waiver is “voluntary, knowing, and intelligent.” See State v. Hinners, 471

N.W.2d 841, 845 (Iowa 1991). Griffin did so here. Griffin electronically signed the

written waiver.5 On appeal, Griffin does not claim his waiver was uninformed or

involuntary. We find no error.

Hearsay. Finally, Griffin contends the district court erred in admitting

hearsay, that is, the police report prepared by Deputy Crowder. The State

concedes the document itself does contain hearsay statements and should not

have been admitted but asserts Griffin suffered no prejudice.

“[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.” State v. Thompson, 982 N.W.2d 116, 121 (Iowa 2022) (citation

omitted). Consequently, we review hearsay issues for correction of errors at law.

Id. “We consider inadmissible hearsay to be prejudicial to the nonoffering party

‘unless the record affirmatively establishes otherwise.’” Id. (citation omitted); see

Iowa R. of Evid. 5.103(a) (“A party may claim error in a ruling to admit or exclude

evidence only if the error affects a substantial right of the party . . . .”).

To determine whether the error is harmless we ask: Does it
sufficiently appear that the rights of the complaining party have been

5 An earlier deposition of Vicki Mitchell was stopped because Griffin yelled and

swore at the prosecutor.
16

injuriously affected by the error or that he has suffered a miscarriage
of justice? We presume prejudice—that is, a substantial right of the
defendant is affected—and reverse unless the record affirmatively
establishes otherwise.
In considering whether the admission of hearsay is reversible
error, we have held that notwithstanding the presumption of
prejudice from the admission of such evidence, the erroneously
admitted hearsay will not be considered prejudicial if substantially the
same evidence is properly in the record.

State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (cleaned up).

The State asserts the record affirmatively establishes Griffin was not

prejudiced by the hearsay statements in the police report. The deputy first testified

to the substance of police report. Without objection, the deputy explained that

when he told Griffin about Dalton’s complaint, Griffin “was agitated, he was upset.

He felt that Mr. Defenbaugh was attacking him and his son for petty things.” The

deputy described Griffin as “furious . . . during our conversation.” The deputy also

testified, without objection, that he talked to Griffin’s son about the complaint. The

defense objected to admission of the police report because “they’re hearsay. The

witness’[s] testimony is sufficient.” Dalton testified about the substance of the

complaint he made to the deputy that resulted in the contact the deputy reported.

Griffin also testified about the conversation he had with the deputy. Because

“substantially the same evidence is properly in the record,” the admission of the

report is harmless error. See id.

Having found Griffin’s challenges to his convictions either without merit or

harmless, we affirm.

AFFIRMED.