State of Iowa v. Antwan Antonio Johnson, Sr.

IN THE COURT OF APPEALS OF IOWA

No. 22-2074
Filed February 7, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ANTWAN ANTONIO JOHNSON, SR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County,

Brook Jacobsen, District Associate Judge.

A defendant appeals his convictions for child endangerment and domestic

abuse assault, second offense. AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ.
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BADDING, Judge.

In an appeal plagued by error-preservation problems, with claims lacking in

prejudice, Antwan Johnson challenges his convictions for child endangerment and

domestic abuse assault, second offense. We affirm.

At his jury trial, Johnson’s thirteen-year-old stepdaughter testified that she

saw him push and “choke”1 her mother, Natasha, in July 2022 in the back seat of

a car parked outside their house. When the child told Johnson to stop, he got out

of the car and turned his attention to her. Johnson punched the child in the

stomach and pushed her. He pushed Natasha too, causing her to fall onto the

sidewalk. Neighbors watching from across the street called 911. Johnson left

before the police arrived but was arrested several days later.

On appeal, Johnson claims the district court abused its discretion

in (1) admitting audio recordings of two 911 phone calls; (2) allowing opinion

testimony by a police officer that Natasha was uncooperative; (3) overruling an

objection to rebuttal evidence; and (4) denying his for-cause challenge to a

potential juror.

A. Evidentiary Claims

We review evidentiary rulings for an abuse of discretion. State v.

Buelow, 951 N.W.2d 879, 884 (Iowa 2020). When the admission of evidence “is

challenged in the trial court our adversary system imposes the burden upon

1 Although the correct word for what the child described is “strangle,” we use the

word “choke” because that’s the language the child used to describe what
happened. See In re A.G., No. 23-1066, 2023 WL 5605628, at *1 n.1 (Iowa Ct.
App. Aug. 30, 2023); accord Mary Pat Gunderson, Gender and the Language of
Judicial Opinion Writing, 21 Geo. J. Gender & L. 1, 11 (2019) (noting that
describing acts of strangulation as “choking” can minimize or mitigate the conduct).
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counsel to make a proper record to preserve error.” State v. Droste, 232

N.W.2d 483, 487 (Iowa 1975). “A reversal is required for the improper admission”

of evidence only if the admission “affected a substantial right of a party.” Buelow,

951 N.W.2d at 890; accord Iowa R. Evid. 5.103(a).

1. Audio Recordings. The neighbors who made the 911 calls testified

at trial. The prosecutor asked the first witness: “Q. And before you came to testify

today, did you have a chance to listen to your 911 call? A. Yes. Q. And is it an

accurate copy of the call that you made to 911? A. Yes.” The second witness

was asked the same questions and answered, “Yes,” as well. When the

prosecutor offered the recordings of the calls as exhibits, Johnson objected to both

on chain-of-custody grounds, adding a lack-of-foundation objection to the second

recording. The district court overruled his objections.

Johnson contends this was an abuse of the court’s discretion because “the

feeble effort to show the authenticity of evidence made in this case, which included

no effort to show chain of custody, was [not] sufficient to establish a foundation for

the evidence.” The State partially contests error preservation, arguing “the

objection ‘lack of foundation’ was inadequate to preserve error,” leaving Johnson

with the chain-of-custody objections. See State v. Burrell, 255 N.W.2d 119, 123

(Iowa 1977) (“A general foundation objection does not preserve error . . . .”). But

the State asserts that error was not preserved on those objections either because

“on appeal Johnson seeks to recast his objection by arguing there was insufficient

foundation and authentication for the recordings.” See State v. Taylor, 310

N.W.2d 174, 177 (Iowa 1981) (“A party cannot announce one reason for an
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objection at trial and on appeal rely on a different one to challenge an adverse

ruling.”).

We disagree. From the context of Johnson’s objections, it is apparent he

was arguing that proper foundation for the recordings of the 911 calls had not been

laid because the State did not establish the chain of custody. See, e.g., State v.

Lunsford, 204 N.W.2d 613, 616 (Iowa 1973) (considering a similar objection,

although disapproving of its form); see also Iowa R. Evid. 5.103(a)(1)(B) (requiring

the objecting party to “[s]tate[] the specific ground” for the objection, “unless it was

apparent from the context,” to preserve error). This doesn’t get Johnson far,

however.

“Evidence cannot be admitted unless it is properly identified.” State v.

Orozco, 290 N.W.2d 6, 10 (Iowa 1980). The purpose of requiring the State to

prove a chain of custody is to guard “against tampering, substitutions, and

alterations of physical evidence.” State v. Klaich, No. 11-0134, 2011 WL 5867019,

at *5 (Iowa Ct. App. Nov. 23, 2011); accord United States v. Craig, 573

F.2d 455, 478 (7th Cir. 1977). That purpose is served where “a proper foundation

demonstrating the accuracy and trustworthiness of the evidence is laid.”

Craig, 573 F.2d at 478; accord State v. Russell, 261 N.W.2d 490, 495–96

(Iowa 1978) (applying this rule to the foundation required for admission of tape

recordings). When such a showing is made, the State does not “need to establish

a chain of custody to demonstrate its authenticity.” State v. Deering, 291

N.W.2d 38, 41 (Iowa 1980).

The neighbors’ testimony that they listened to the recordings of their 911

calls before testifying and that the recordings were accurate established a proper
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foundation for their admission. See State v. Petties, No. 17-0662, 2019

WL 480300, at *8 (Iowa Ct. App. Feb. 6, 2019) (finding a witness’s testimony that

he had reviewed the cell phone recordings of his conversations with the defendant

“and each was a fair and accurate depiction of the portion of the conversation” was

adequate for admission); see also Deering, 291 N.W.2d at 40 (“When, as here, a

witness to the event purportedly depicted by the film testifies that the film

accurately portrays that event, a foundation has been established . . . .”). Thus,

the State was not required to present testimony “from the 911 operator who

received the call,” as Johnson argues.

In any event, like the State points out on appeal, Johnson does not claim

“that any falsification or misrepresentation actually occurred here.” Deering, 291

N.W.2d at 41. And the neighbors testified to the same things the jury heard on the

recordings of the 911 calls. See State v. Wilson, 878 N.W.2d 203, 219 (Iowa 2016)

(“One way to show erroneously admitted evidence did not impact a verdict is to

show it was merely cumulative.”). We accordingly reject this claim.

2. Opinion Testimony. Johnson next claims the district court abused its

discretion in allowing a police officer to testify that Natasha was not cooperative

when he arrived on the scene. On cross-examination, the officer agreed with

defense counsel that when he saw Natasha on the ground, “she didn’t have any

visible injuries.” So, on redirect, the prosecutor asked the officer, “Did you look at

her back?” He answered, “Not other than—I mean no.” The prosecutor continued,

“Was she cooperative with you?” Johnson objected: “Hearsay and relevance and

opinion.” The court overruled the objection, and the officer answered, “She was

not cooperative.” Citing Iowa Rule of Evidence 5.701(c), Johnson argues the
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officer’s “opinion about whether the victim had a cooperative or noncooperative

state of min[d] was outside the scope of lay opinion testimony because it was

based on specialized knowledge the witness was not shown to possess.”

We agree with the State that Johnson’s general “opinion” objection did not

preserve error on this claim. See State v. Hubbs, 268 N.W.2d 188, 189

(Iowa 1978) (stating the “general objection” that a question “called for ‘an opinion

on the part of the witness’” “preserves nothing for review”). So we decline to

consider it further.

3. Rebuttal Testimony. This leaves us with Johnson’s final evidentiary

claim—that the district court abused its discretion in allowing rebuttal testimony

from a child protective worker for the Iowa Department of Health and Human

Services. After the State rested, Johnson called Natasha to testify on his behalf.

She denied that Johnson hit, pushed, or “choke[d] her with both hands,” instead

characterizing what happened between them as a “disagreement.” On cross-

examination by the State, Natasha also denied telling the child protective worker

“that there was a physical altercation” between her and Johnson that day.

In rebuttal, the prosecutor called the worker as a witness and asked her,

“Did Mr. Johnson make any admissions to you about whether he had been in an

altercation of some kind with his wife?” Johnson objected to the question as

“improper rebuttal.” The court overruled the objection, and the worker testified:

“[W]hen he and I talked, he did speak about a disagreement, I believe, and I am

going off memory. I believe he talked about it being a verbal disagreement.”

Johnson argues this was improper rebuttal testimony because he “did not

testify at trial, nor did the defense question their lone witness, Natasha . . . about
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what he said.” We agree with the State that error, if any, in admitting this evidence

was not prejudicial because it corroborated Natasha’s testimony that the dispute

was not physical and supported Johnson’s general denial defense. See State v.

Seligman, 103 N.W. 357, 358 (Iowa 1905) (finding that even if the evidence was

improperly offered on rebuttal, “no prejudice resulted to the defendant” because its

effect “was to corroborate rather than contradict” the defendant’s own testimony);

accord State v. Hall, 235 N.W.2d 702, 723 (Iowa 1975) (concluding that while the

trial court should have rejected a witness’s testimony “as not being rebuttal, the

decision permitting him to testify was without prejudice”).

B. Juror Challenge

Although jury selection was not reported, the court made a record after the

jury was empaneled on the parties’ for-cause challenges. One of those challenges

was to Juror No. 142, who the court said “provided some information about [a] prior

history involving domestic assault” during defense voir dire, including that she and

some family members were “survivors of domestic assault.” The court denied that

challenge and another one to Juror No. 99, who “indicated some prior history

involving domestic assault charges.”

On appeal, Johnson claims the court should have granted both challenges.

However, the court stated the challenge to Juror No. 99 was made by the State.

The court did not specify which party made the challenge to Juror No. 142,

although the State does not contest that it was made by Johnson. We agree with

the State that Johnson cannot show he was prejudiced by that ruling. See State

v. Lillie, No. 21-1393, 2022 WL 2824779, at *2 (Iowa Ct. App. July 20, 2022) (“To

grant [the defendant] the reversal she requests, we must not only find that the
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district court erred in denying the challenge for cause but also that [she] was

prejudiced by the improper denial.”).

As we summarized in Lillie,

Prejudice is presumed when (1) the district court improperly refuses
to disqualify the juror in question, (2) the defendant is thereby forced
to expend a peremptory challenge, and (3) the defendant requests,
and is denied, an additional peremptory strike upon exhausting those
afforded under Iowa Rule of Criminal Procedure 2.18(9).

Id.; accord State v. Jonas, 904 N.W.2d 566, 583 (Iowa 2017). Johnson

acknowledges that “[n]o request for an additional strike was made by defense

counsel in the case at bar, at least as appears of record.” As a result, the prejudice

test in State v. Neuendorf, 509 N.W.2d 743 (Iowa 1993) applies. See Jonas, 904

N.W.2d at 583.

To establish prejudice under that test, Johnson must show “either (a) the

challenged juror served on the jury, or (b) the remaining jury was biased as a result

of the defendant’s use of all of the peremptory challenges.” State v. Tillman, 514

N.W.2d 105, 108 (Iowa 1994) (citing Neuendorf, 509 N.W.2d at 747). Johnson

made neither showing. Instead, he asks us to overturn the prejudice standards

developed by our supreme court in Neuendorf and Jonas, arguing that prejudice

should be presumed “when a judge does not strike a juror for cause who has been

the victim of the same crime for which the defendant is on trial.” We cannot do so.

See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).

Because Johnson’s claims on appeal were either not preserved for our

review or did not result in prejudice, we affirm his convictions.

AFFIRMED.