State of Iowa v. Isaiah Edward Cole

IN THE COURT OF APPEALS OF IOWA

No. 24-0589
Filed August 20, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ISAIAH EDWARD COLE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,

Judge.

Isaiah Cole appeals his conviction and sentence for operating while

intoxicated, second offense. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Katherine Wenman, Assistant Attorney

General, for appellee.

Considered without oral argument by Ahlers, P.J., Chicchelly, J., and

Bower, S.J.*

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

(2025).
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BOWER, Senior Judge.

Isaiah Cole appeals his conviction and sentence for operating while

intoxicated (OWI), second offense. He claims the district court abused its

discretion by denying his motion for a mistrial and challenges the adequacy of the

court’s colloquy to establish his stipulation to a prior OWI conviction. Upon our

review, we affirm in part, reverse in part, and remand for further proceedings.

I. Background Facts and Proceedings

At approximately 1:15 a.m. on September 2, 2023, Des Moines Police

Officer Brian Kelley was on routine patrol when he observed a vehicle “traveling at

a high rate of speed”—“close to 70 miles an hour, which is interstate speeds, in a

35-mile-an-hour zone.” Officer Kelley turned to follow the vehicle and observed it

had its “right turn signal on for no apparent reason,” “which can indicate a sign of

impairment.” As Officer Kelley caught up, the vehicle pulled into a car dealership

and drove through the lot and into an open grassy area, where it stopped.

Officer Kelley approached the vehicle and identified Cole as the driver. Cole

admitted he was speeding and told the officer his registration was expired and he

had no insurance. Officer Kelley observed Cole was smoking a cigarette, which

he refused to put out. In Officer Kelley’s experience, “some people do smoke

cigarettes when they’re stopped and have been drinking to cover up the odor of

the alcoholic beverage.” Even so, Officer Kelley “could still detect an odor of an

alcoholic beverage emanating from that vehicle” and observed Cole “had red,

watery, bloodshot eyes” and “slurred speech.” Because Cole was “agitated” and

Officer Kelley was unsure whether he would cooperate with field sobriety testing,

he called for a backup officer. When the backup officer arrived, Officer Kelley
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conducted the tests, which Cole failed. Cole refused a preliminary breath test.

Officer Kelley took him into custody and transported him to the police station,

where Cole again refused a breath test and acted erratically.1

The State charged Cole with OWI, second offense. Cole pled not guilty.

Trial took place over two days in March 2024. Prior to trial, Cole filed a motion in

limine requesting, in part, “[t]hat the Jury not be told at any time by the State or the

State’s witness(es) in any form at any stage of the trial about any alleged prior bad

acts by the Defendant until that matter is placed at issue by the defendant.” The

State did not resist this part of Cole’s motion, and the district court granted his

request. At trial, during the State’s case in chief, Officer Kelley testified about his

arrest of Cole. During his testimony, the State played Exhibit 3, a video recording

of Cole’s interactions with officers, including statements by Cole at the police

station after his arrest.

Later, after the court adjourned trial for the day, defense counsel requested

to “make a short record” on several statements by Cole in Exhibit 3:

The defense would just request that prior to Exhibit 3 going to the
jury that—There were several comments regarding my client’s prior
history. There was a reference in the bathroom where he said—he
mentioned, you know, about the last time he was arrested, they didn’t
let him go to the bathroom.
And then two comments while he was on the phone . . . [with]
his sister. One was, You know how this goes. The other was, I know

1 As Officer Kelley testified:

He’ll go from periods of complete calm, talking in a low voice to
becoming agitated, talking in a high voice, trying to talk over me,
using profanity. At one point he laughs at some random person in a
different room that doesn’t have anything to do with our current
situation. And all of those are indicators of impairment.
We also observe that en route to the police station, Cole accused Officer Kelley of
“kidnapping” him. Cole then told Officer Kelley to “arrest” him and “take [him] to
the county jail.” Cole acted belligerent and used profanity toward the officer.
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how this goes, which I think is going to be most likely taken by the
jury as having had prior experiences.[2]
I didn’t bring it up at the time out of the hopes that it slipped
through, whereas if I had objected at the moment, it would have
definitely brought it to their attention.

The State resisted Cole’s objection as untimely. It argued, “The exhibit is

already admitted in its entirety without objection at the time. It’s already been

played for the jury. At this juncture an objection on those grounds is certainly

untimely.” The court asked the parties to revisit the issue “tomorrow morning

before we get started.”

The next morning, Cole moved for a mistrial on the issue, which the State

resisted. The district court denied the motion, determining the challenged

statements did not introduce evidence of prior bad acts.

The jury found Cole guilty of operating while intoxicated, and Cole stipulated

to a prior OWI conviction. The district court sentenced him to an indeterminate

term of incarceration not to exceed two years, with all but eleven days suspended,

and placed him on probation for two years. Cole appeals.

II. Motion for Mistrial

Cole claims the district court erred by denying his motion for mistrial “after

the State violated the court’s ruling on [his] motion in limine.” We review a ruling

2 The actual statements challenged by Cole on appeal are as follows. While using
the restroom, Cole told Officer Kelley: “At least you’re better than the last officer,
at least you’re letting me fucking piss.” And while on the phone to his sister, Cole
stated:
I’ve been telling them, like, ‘Just send me on my fucking way,’ but
you know what I’m saying they keep trying to coerce me and say this
and that, like man, if you was arresting me I should be in—I know
where I should go, I should be in Polk County right now. You don’t
have nothing here, you’re forcing something on me . . . .
(Emphasis added.)
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on a motion for mistrial for an abuse of discretion. State v. Brown, 5 N.W.3d 611,

614–15 (Iowa 2024). An abuse of discretion occurs when the record has “no

support” for the court’s decision. State v. Jirak, 491 N.W.2d 794, 796 (Iowa Ct.

App. 1992). But a new trial is only appropriate “if the prejudice resulting from the

denial prevented the defendant from having a fair trial.” State v. Brown, 996

N.W.2d 691, 696 (Iowa 2023) (citation omitted).

Preliminarily, the State maintains Cole failed to preserve error on his claim

because he “remained silent” when Exhibit 3 was offered and played for the jury.

The State further points out “[t]his rule is particularly practical here where [Cole]

had access to the video exhibit and could have raised the issue before trial started,

let alone before the exhibit was presented to the jury.” We agree.

Our court recently encountered a similar issue. In State v. Diaz, No. 24-

0496, 2025 WL 1704324, at *4 (Iowa Ct. App. June 18, 2025), a defendant

appealed, in part, the district court’s denial of his motion for mistrial based on a

witness’s testimony in violation of a motion in limine. This court declined to address

his claim, however, upon finding error was not preserved because defense counsel

waited until a break during trial to object—which was after the challenged witness’s

testimony was concluded and another witness had testified. See Diaz, 2025 WL

1704324, at *4. This court reasoned:

“[A] motion for mistrial must be made when the grounds
therefore first become apparent.” [Jirak], 491 N.W.2d [at 796]. We
recognize that defense counsel may have been reluctant to draw
further attention to the testimony, but the record reflects that counsel
recognized the issue immediately yet waited a substantial amount of
time to raise it. See id. at 796–97. As the State correctly points out,
waiting as long as [defense counsel] did to make the objection
deprived the court of the opportunity to remedy the situation by
striking the testimony and giving an immediate curative instruction—
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both recognized methods for alleviating prejudice from improper
testimony. See, e.g., State v. Kieffer, 17 N.W.3d 651, 658 (Iowa
2025) (“When evidence is introduced contrary to an order in limine,
but the district court promptly strikes the evidence and admonishes
the jury to disregard it, a mistrial may be granted only when the
forbidden evidence is so prejudicial that its effect on the jury could
not be erased by the district court’s admonition.”). We find the delay
between the challenged testimony and the motion for mistrial in this
instance was too long to preserve error. See State v. Stock, No. 22-
1432, 2024 WL 466570, at *5 (Iowa Ct. App. Feb. 7, 2024) (finding
that waiting until after the witness was excused to make a motion for
mistrial based on the witness’s testimony was too late to preserve
error); State v. Brown, No. 14-0667, 2015 WL 5577971, at *4 (Iowa
Ct. App. Sept. 23, 2015) (same).

Id.

Similarly, here, defense counsel waited until the close of testimony on the

first day of trial to raise the issue outside the presence of the jury. Because Cole

did not raise his objections and motions for mistrial when the alleged errors first

became apparent, we hold the alleged errors were not properly preserved for

appellate review. Jirak, 491 N.W.2d at 799.

III. Stipulation Colloquy

After the case was submitted to the jury, but before the verdict, the district

court secured Cole’s waiver of a second trial to prove he had been previously

convicted of OWI. Cole stipulated he had an OWI conviction from 2012. On

appeal, Cole challenges the adequacy of the court’s stipulation colloquy on various

grounds.3 See Iowa R. Crim. P. 2.19(8)(a) (setting forth details about which the

3 Generally, “a challenge to a sentencing-enhancement stipulation must be raised

by filing a motion in arrest of judgment to preserve error,” which Cole did not do.
See State v. Bigbear, No. 24-0555, 2025 WL 2058251, at *3 (Iowa Ct. App. July
23, 2025). However, because the district court failed to adequately advise Cole of
his obligation to file a motion in arrest of judgment, we may consider his challenge
on appeal notwithstanding its usual error-preservation impediment. See id.
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court is required to inform the defendant during a colloquy before accepting the

defendant’s stipulation to a prior offense). The State concedes the court “did not

appropriately advise Cole ahead of his enhancement stipulation, so the case must

be remanded for further proceedings.” We agree. Because the colloquy did not

comply with the requirements under rule 2.19, we reverse the judgment entered

on the OWI, second offense. See State v. Steffen, No. 17-1959, 2019 WL

2371923, at *1–2 (Iowa Ct. App. June 5, 2019).

IV. Conclusion

We affirm the jury’s guilty verdict on Cole’s current OWI conviction but

reverse the judgment and sentence for OWI, second offense. We remand for

further prior-conviction proceedings under rule 2.19(8).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.