State of Iowa v. Charles Andrew Tewes

IN THE COURT OF APPEALS OF IOWA

No. 20-0253
Filed May 12, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CHARLES ANDREW TEWES,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David C. Larson,

Judge.

Charles Andrew Tewes appeals his conviction for eluding. AFFIRMED.

Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

Charles Andrew Tewes was convicted of eluding a law enforcement vehicle

following a jury trial. He appeals, claiming the district court abused its discretion

in failing to grant his motion for mistrial based on the State’s attempts to introduce

evidence of Tewes’s prior bad acts when such evidence had been ruled

inadmissible via a pretrial order in limine. While not enamored with the

prosecutor’s repeated questioning on topics addressed by the order in limine, lack

of prejudice causes us to conclude the district court did not abuse its discretion in

denying Tewes’s mistrial motion.

I. Factual Background

On May 22, 2018, Tewes was driving a pickup southbound out of Milford on

a four-lane divided highway. A Milford police officer observed Tewes driving. The

officer was familiar with Tewes and confirmed Tewes’s license to drive was

suspended. The officer activated the lights on the officer’s patrol vehicle to initiate

a traffic stop for driving under suspension. When Tewes did not respond, the

officer activated the patrol vehicle’s sirens as well. While Tewes did not accelerate

or take any evasive action, he failed to respond to the lights and sirens for nearly

two miles before abruptly pulling onto the shoulder and skidding to a stop.

Based on Tewes’s failure to stop coupled with the officer’s past experiences

with Tewes, which caused the officer to believe Tewes could be violent,

aggressive, and uncooperative, the officer called for backup. Backup arrived about

the same time Tewes finally pulled over, and the two officers conducted a “felony

stop.” They ordered Tewes out of the vehicle with his hands up while both officers

aimed firearms at Tewes. Tewes argued with the officers using profanity before
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eventually exiting the vehicle with a dark object in his hand. The officers ordered

Tewes to face away from them and to walk backward toward them. Tewes

complied with those commands, but he had to be repeatedly told to face away from

the officers. The officers then ordered Tewes to get on his knees and then “on his

face.” Tewes was again slow to respond and was claiming confusion as to what

he was being asked to do while still clutching the object in his hand. In response,

the second officer used his foot to push Tewes face down on the ground, and the

officer ripped the object out of Tewes’s hand after unsuccessfully trying to kick it

out. It turned out the object was a cell phone. Tewes was handcuffed and placed

in the first officer’s patrol vehicle for transport to the jail. During the ride to the jail,

Tewes engaged in a steady stream of one-sided chatter directed at the arresting

officer, to which the officer did not respond other than to answer Tewes’s questions

about the charges against him.

All of the above-described events were captured on body and/or dash

camera audio and video recordings.

II. The Charges and Trial

As relevant to this appeal, Tewes was charged with eluding in violation of

Iowa Code section 321.179(1) (2018), which, in pertinent part, states:

The driver of a motor vehicle commits a serious misdemeanor
if the driver willfully fails to bring the motor vehicle to a stop or
otherwise eludes or attempts to elude a marked official law
enforcement vehicle driven by a uniformed peace officer after being
given a visual and audible signal to stop. The signal given by the
peace officer shall be by flashing red light, or by flashing red and blue
lights, and siren.

Prior to trial, Tewes secured an order in limine prohibiting the State from

introducing evidence or questioning “about defendant’s criminal history.”
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However, in response to the State’s stated intention to submit a dash camera video

and audio recording that had been redacted to remove parts that “bear no

relevance to the probative matter of whether the crime of eluding was committed,”

Tewes objected and insisted that the recording be submitted and displayed to the

jury in its entirety.1

Based on Tewes’s insistence that any recording be admitted in total, the

State admitted the dash camera recording into evidence and played the entire

recording to the jury. The recording did not cast Tewes in a favorable light. Tewes

was generally disrespectful to the officer and regularly mocked him. He repeatedly

made provocative statements that appeared to be designed to bait the officer into

responding, but he was unsuccessful. He made a derogatory comment about the

physique of a random female pedestrian they encountered near the jail. Finally,

and perhaps most important to the issues at hand, Tewes made repeated

references to being arrested multiple times, including for an assault, and described

multiple people having a restraining order against him, all of which was evidence

the jury may not have heard but for Tewes’s insistence that it be shown to the jury.

After the dash camera recording had been played to the jury, the prosecutor

asked the following questions of the arresting officer:

Q: Do you know anything about Mr. Tewes’s history that would
make you take more care in stopping the vehicle? A: Yes, I do.
DEFENSE COUNSEL: Objection.
THE COURT: Sustained.
Q: Why did you feel that you needed to use force during the
stop of this vehicle? A: Because of his previous actions and just his
general demeanor.
Q: And what do you know that to be? A: He’s always
aggressive.

1 Tewes’s trial counsel was not the same as appellate counsel.
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Q: Okay. Can you give us any specific examples? A: As in
interactions that I’ve had with him?
Q: Yes. A: I mean, just calls where he just doesn’t want to
cooperate with you. I don’t—I don’t really—

After changing to other topics, the prosecutor returned to the topic of

Tewes’s past:

Q: Tell the jury why you called for backup. A: Because just
past dealings and knowing his past, just knowing what he’s done.
Q: Okay. And can you elaborate on that any further than what
you already have? A: I don’t know. Can I?
Q: I believe it came out in the video even though it’s inaudible.
A: Okay. Shooting an ethanol plant with a—
DEFENSE COUNSEL: Objection.
THE COURT: Sustained.
Q: I think the original question was why did you call for
backup. We’ll go back to that. A: It’s always safer to have two cops
there than one.

The State was apparently not dissuaded by the sustained objections

because, when the second officer testified, the following exchange occurred:

Q: Why was so much care taken or why were weapons used
during the arrest of Mr. Tewes? A: Well, any time you’re—like I said
before, every traffic stop is an unknown. It is an unknown risk. And
let’s say, for instance, if you have someone that you have pretext
with that may—I don’t know. Let’s say feloniously used a gun in a
crime at some point. You’re—you would be heightened a little bit
further than that. You would take more care in what you’re doing if
you are dealing with some event like that.

At the next break in the trial, Tewes moved for a mistrial “based on the

State’s introduction of prior bad acts of Mr. Tewes shooting up an ethanol plant

after being objected to and sustained moments earlier for trying to introduce prior

bad acts.” The prosecutor resisted the motion for mistrial, arguing Tewes had

agreed to allow all of the dash camera recording—including the discussion of
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Tewes shooting an ethanol plant—to be admitted into evidence and shown to the

jury.2 The district court denied the motion for mistrial, stating:

The mistrial, I would overrule that on two grounds. One, the
video that came into evidence, although the quality was real poor, it
was already in there, the part that was in evidence. That’s not
something that was really focused on one way or another. You could
barely tell it on the video. I’m not sure that the video was sufficient
enough for the jury to catch the wording at all on the in-car video.
The body camera, that was a little bit better. And the jury has already
been admonished not to consider any testimony where the court
sustained the objection and told them not to consider that or make
any conjecture what the evidence might be following an objection.
Plus it was such a minor time, I don’t think even the whole question
was answered or the answer got out before the objection was made
and sustained on that. In any event, I don’t find any prejudice from
that one statement, plus the fact that it’s cumulative.

At the close of the evidence, Tewes renewed his motion for mistrial on the

same grounds, while noting the fact the arresting officer asked if he could talk about

Tewes’s history before answering suggested he knew he was not supposed to be

telling the jury about it. The district court again denied the motion, stating:

On the mistrial, I don’t find any prejudice. It’s cumulative as
to what was on the tape even though it probably wasn’t even heard
by most of the jurors on the tape. Some of them may have heard it.
It could be discussed in the jury room. [The arresting officer] did ask
if it was okay to answer that, which maybe heightened the jury’s
awareness of what the answer was going to be or called some
attention to it. But I still don’t think that it was a major point or that it
prejudiced the defendant. And they’ve already been admonished to
not consider evidence that was objected to and sustained on the
objection.

2 After closely listening to both the dash and body camera recordings, we cannot
discern any reference to an ethanol plant or a shooting of the plant. The only
reference to a shooting we can discern is when Tewes mocks the arresting officer,
who apparently had been involved in a prior on-duty-related shooting, thanking the
officer for not shooting him and saying Tewes knew how itchy the officer’s trigger
finger can get.
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During closing argument, the prosecutor played only a portion of the video

of the recording of the eluding incident and made the following comments as it

relates to the issues on appeal:

The best evidence was this video that was just seen. The rest
of the video that you were made to watch does not have anything to
do with the crime of eluding. You may not have liked what the officers
had to do to take the defendant into custody, but they have explained
to you why they did it. It was a matter of officer safety. They knew
of this gentleman before this incident. They felt that the manner of
the arrest was appropriate for the conditions that day. . . . We’ve
seen it time and time again where these officers are putting
themselves in harm’s way in order to protect us.
The officer explained why they arrested him in the manner that
they did. You should not be considering that in your verdict today.

The jury found Tewes guilty of eluding, and he was sentenced.

III. Analysis of the Issues

Tewes seeks a new trial on the ground the district court erred by denying

his motion for mistrial after the State introduced evidence about Tewes’s past bad

acts and crimes in violation of the order in limine and the prior sustained objections.

A. Error Preservation and Standard of Review

The State raises an error-preservation issue, asserting Tewes did not make

the motion when the asserted ground for a mistrial first became apparent, as

required to preserve error. See State v. Gibb, 303 N.W.2d 673, 678 (Iowa 1981)

(“Generally, a mistrial motion must be made when the grounds therefor first

become apparent.”). While we note there may be merit to the State’s assertion,

we choose to bypass the error-preservation issue and address the claim on its

merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (“We choose to pass

Taylor’s serious preservation-of-error problems and affirm on the merits.”).
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We review denial of a motion for mistrial for an abuse of discretion. State

v. Plain, 898 N.W.2d 801, 811 (Iowa 2017).

B. Discussion

As previously noted, the district court denied Tewes’s motion for mistrial and

in doing so made several observations and findings. As quoted above, the district

court noted: (1) at least one of the questions alleged to have been the basis for the

mistrial motion resulted in a sustained objection before the arresting officer

completed the answer; (2) the topic of the questioning at issue was cumulative, as

it had already been heard by the jury via the arrest recordings that had been played

in their entirety; and (3) the jury had already been admonished to not consider

answers to questions to which objections had been made and sustained. The

district court noted the questioning at issue was not a major point and did not

prejudice Tewes. As a result, the district court denied the motion for mistrial and

the renewed motion.

Tewes asserts the district court abused its discretion because two of the

underpinnings of its conclusion leading to the denial of Tewes’s motion were

wrong. Specifically, Tewes argues (1) the district court’s recollection that a

sustained objection cut off part of the arresting officer’s answer was incorrect and

(2) the district court’s recollection that the jury had been admonished to disregard

answers to questions that had drawn a sustained objection was incorrect because

no admonition appears in the record.

As to Tewes’s first argument, the record rebuts his claim. As quoted above,

Tewes made two objections related to the issue at hand and both times they were

sustained. One of the objections was sustained in mid-answer, resulting in the
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arresting officer not completing the answer. Granted, the part that did come out

made reference to “shooting an ethanol plant.” However, given the fact the

objection interrupted the answer, we do not know whether the witness and the

attorney were talking over each other, as there is no meaningful way for the court

reporter to demonstrate overlapping speech in the transcript. This is one reason

why there is so much deference to the discretion of the district court, as the district

court is in a much better position to gauge such events and their impact on the jury

than we are. See State v. Jirak, 491 N.W.2d 794, 796 (Iowa Ct. App. 1992) (“Trial

courts have considerable discretion in ruling upon motions for mistrial, since they

are present throughout the trial and are in a better position than the reviewing court

to gauge the effect of the matter in question on the jury.”).

As to Tewes’s second point, we acknowledge that the admonition given to

the jury was not included in the record, so we do not have the exact wording of it,

but we know an admonition was given, as the district court repeatedly reminded

the jurors of it at breaks. The district court and the attorneys would have been

present to hear the admonition given so would be in the best position to know the

terms of the admonition. The district court referred to the admonition as having

included a direction to disregard any answer that drew a sustained objection as

part of the court’s basis for denying the mistrial motions. Presumably, this was an

accurate statement of the admonition, as it drew no objection or comment from

either attorney. If the court’s description of the admonition was not accurate, as is

now being claimed on appeal, then it was defense counsel’s obligation to call that

mistake to the district court’s attention at that time so corrective measures could

be taken. We will not presume error. See State v. Cook, 330 N.W.2d 306, 313
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(Iowa 1983) (“We do not presume error.”); State v. McFarland, 287 N.W.2d 162,

164 (Iowa 1980) (“To adopt appellant’s argument would have the effect of a

presumption that error occurred at trial and would place the burden upon the State

to disprove it. However, there is a presumption of regularity in trial proceedings.”).

Finding no merit to Tewes’s challenges to the underpinnings of the district

court’s rulings on his motion for mistrial, we turn to the heart of the ruling itself.

The theme of Tewes’s complaint is the State tried to introduce evidence of Tewes’s

past bad or criminal acts and the district court abused its discretion in not granting

a mistrial as a result. However, to show an abuse of discretion by the district

court in denying a motion for mistrial, the defendant must show prejudice that

prevented the defendant from having a fair trial. State v. Callender, 444 N.W.2d

768, 770 (Iowa Ct. App. 1989). Here, Tewes cannot make such showing.

Remember, Tewes insisted on playing the dash camera video and audio recording

in its entirety. That recording included Tewes admitting past charges for assault,

multiple past arrests, and multiple people having restraining orders against him.

Given Tewes’s insistence that the jury hear this evidence, we are not persuaded

Tewes’s trial became unfair by the jury hearing partial and incomplete references

about an ethanol plant shooting incident. Any smearing of Tewes’s character had

already been done effectively by Tewes himself. Additionally, we note, as quoted

above, the State’s closing argument focused primarily on the facts supporting the

eluding charge and specifically directed the jury’s attention to those facts rather

than the events surrounding Tewes’s arrest.
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IV. Conclusion

It was inappropriate for the State to delve into Tewes’s past behavior in

violation of the pretrial order in limine. However, given Tewes’s trial strategy of

insisting that the jury hear the entire recording of Tewes’s interaction with the

arresting officer, including Tewes’s admissions of past bad acts and crimes, the

State’s questioning about another incident did not prejudice Tewes’s right to a fair

trial. In short, we find no abuse of discretion in the district court’s denial of Tewes’s

motion for mistrial.

AFFIRMED.