State of Iowa v. Tony Earl Arterberry

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IN THE COURT OF APPEALS OF IOWA

                                  No. 23-0032
                            Filed December 4, 2024


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TONY EARL ARTERBERRY,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Scott Rosenberg,

Judge.



      A defendant appeals his convictions for murder in the first degree, burglary

in the first degree, and robbery in the first degree. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Brenna Bird, Attorney General, and Kevin Cmelik, Special Counsel, for

appellee.



      Heard by Tabor, C.J., and Ahlers and Sandy, JJ.
                                          2


AHLERS, Judge.

         There is no question Rhonda Howard was murdered in her apartment. A

jury determined that Tony Arterberry committed the murder.1               On appeal,

Arterberry challenges the sufficiency of the evidence supporting the jury’s verdict

as well as various evidentiary rulings he claims deprived him of a fair trial.

         We begin our discussion with Arterberry’s sufficiency-of-the-evidence

challenge because success on that challenge would require us to remand for

judgment of acquittal, making it unnecessary to address his remaining challenges.

See State v. Dullard,
668 N.W.2d 585, 597
(Iowa 2003).

I.       Sufficiency of the Evidence

         “We review challenges to the sufficiency of the evidence for correction of

errors at law.” State v. Veal,
930 N.W.2d 319, 328
(Iowa 2019).2 “Substantial

evidence is evidence sufficient to convince a rational trier of fact the defendant is

guilty beyond a reasonable doubt.” State v. Crawford,
972 N.W.2d 189
, 202 (Iowa

2022).    “In determining whether the jury’s verdict is supported by substantial

evidence, we 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). Although Arterberry


1 In addition to first-degree murder, the jury also found Arterberry guilty of burglary

in the first degree and robbery in the first degree based on the same events
surrounding the murder.
2 Arterberry contends the standard of review for challenges to the sufficiency of

evidence should be de novo because the beyond-a-reasonable-doubt standard is
constitutionally based. We reject this contention because the supreme court has
clearly proclaimed the standard of review to be for correction of errors at law, see
State v. Slaughter, 3 N.W.3d 540, 546 (Iowa 2024), and we are not permitted to
ignore or overrule controlling precedent. See State v. Beck,
854 N.W.2d 56, 64
(Iowa Ct. App. 2014).
                                          3


raises challenges to some of the evidence admitted at his trial, we still consider the

challenged evidence, regardless of whether we ultimately determine it to be

admissible, in conducting our assessment of the sufficiency of the evidence. See

Dullard,
668 N.W.2d at 597
.

        In challenging his convictions for murder in the first degree, burglary in the

first degree, and robbery in the first degree, Arterberry does not contest the fact

that someone did the acts necessary to support convictions for all three crimes.

Rather, he contends the State failed to prove that he is the person that did those

acts.   So, our focus is on the evidence supporting the jury’s conclusion that

Arterberry is the person who committed the crimes.

        Based on the evidence presented at trial, reasonable jurors could have

found the following facts. Arterberry and Howard had been in an on-again-off-

again romantic relationship for several months. On May 6, 2022, about four days

before her murder, Arterberry kicked in the door to Howard’s apartment, grabbed

her hair, knocked her to the ground, and got on top of her. While this was

happening, Arterberry threatened to come back and kill her. He attempted to take

her phone, but she was able to throw it out of reach before he got up and left the

apartment. Howard then called 911. When the police responded, she misspelled

Arterberry’s name when asked about her assailant but provided a physical

description and a list of locations he frequented.       The police left to continue

searching for Arterberry but were unable to locate him.

        About four days later, Howard was found murdered in her apartment. The

exact time of the murder could not be established, but it occurred sometime in the

late-evening hours of May 9 to early-morning hours of May 10. Surveillance video
                                         4


evidence and testimony established that at 10:52 p.m. on May 9, Arterberry was

wearing a black sweatshirt with a red logo, dark shorts, white tennis shoes, and a

rain poncho.   He obtained a ride from a stranger and was dropped off at a

restaurant near Howard’s apartment a short time later. At 11:01 p.m., Arterberry

used an acquaintance’s phone to call Howard. He was not seen again for several

hours. At 2:27 a.m. on May 10, surveillance footage from a convenience store

shows Arterberry wearing the same sweatshirt and shorts, but his footwear had

changed to black ankle socks with gray foam clogs. He was no longer wearing the

rain poncho and was carrying a backpack. At the same time Arterberry can be

seen leaving the convenience store at 2:40 a.m., data from Howard’s phone—a

phone that was missing from her apartment—shows the phone beginning to move

in the same location as Arterberry. Arterberry is then seen on two other cameras

walking east, which correlated to the evidence of continued movement of Howard’s

phone. Arterberry was not seen again until 11:40 a.m., when he was captured on

video boarding a bus in the same sweatshirt. However, he had changed from

shorts to jeans, and his footwear had changed again, this time to black shoes.

       A reasonable juror could conclude that Arterberry’s change in footwear

around the time of a bloody murder, Howard’s phone being missing from her

apartment, and the phone following the same path as Arterberry demonstrates that

Arterberry was at the apartment, took the phone, and had reason to change his

footwear.

       Arterberry argues the evidence described above is insufficient to establish

that he is the person who committed the crimes at issue. If this is all the evidence

the State presented, Arterberry may be right. But there is more. Howard was
                                         5


found dead at the bottom of her basement stairs as a result of blunt and sharp

force injuries. She also had injuries to her hand indicative of defensive wounds.

The whole apartment was ransacked, and Howard’s car keys, phone, credit card,

and jewelry were missing. Two cigarette butts, numerous dented canned goods,

and a shower curtain rod were found near Howard’s body. Testing of saliva from

the cigarette butt closest to the body showed a match to Arterberry’s DNA, while

the one further away belonged to another individual. A latent fingerprint on the

shower curtain rod found next to the body was a confirmed match to Arterberry.

The medical examiner testified a linear injury on the victim’s body could be

consistent with her being struck by a shower curtain rod. Material scraped from

under Howard’s fingernails contained Arterberry’s DNA. Outside the apartment, a

sock with Arterberry’s DNA was recovered. Additionally, when Arterberry was

arrested, he asked to wash his hands. When he was told no, he began to wipe his

hands and individually lick each finger multiple times.

       Faced with this evidence, Arterberry points out that the State’s case is

based largely on circumstantial evidence. Yet, direct and circumstantial evidence

are equally probative. State v. Brimmer,
983 N.W.2d 247
, 256 (Iowa 2022). So,

Arterberry seeks to undermine the weight of various pieces of evidence introduced

by the State and points to claimed oversights by law enforcement during this

investigation. He contends his personal relationship with the victim explains his

DNA under her fingernails and the fingerprints around the apartment, and he

maintains that crucial pieces of evidence received no testing or analysis.

       But all Arterberry’s arguments are simply ways of asking us to weigh the

evidence differently than the jury did. This is something we cannot do on a
                                          6


sufficiency-of-the-evidence challenge, as it is ultimately the jury’s responsibility to

resolve conflicts in and weigh the evidence, not ours.
Id.
Based on our review of

the evidence, a reasonable juror could conclude that Arterberry is the individual

who committed the crimes. As his only challenge is to identity, there is substantial

evidence supporting the jury’s verdict finding Arterberry guilty of murder in the first

degree, burglary in the first degree, and robbery in the first degree.

       Having concluded there is sufficient evidence to support Arterberry’s

convictions, we turn to his evidentiary challenges.

II.    Evidentiary Challenges

       In reviewing Arterberry’s appellate briefs, we have tried our best to identify

the items of evidence he challenges on appeal. We have identified four such items.

If Arterberry sought to challenge any other items of evidence, we deem him to have

waived those challenges due to failure to properly identify them. See Iowa R. App.

P. 6.903(2)(a)(8)(3). The four evidentiary issues we have identified are challenges

to: (1) testimony about prior incidents and 911 calls by Howard related to

Arterberry; (2) evidence about an outstanding warrant for Arterberry’s arrest;

(3) evidence about Howard’s statements to law enforcement officers, family

members, and a friend about the May 6 incident; and (4) the admission of the

medical examiner’s autopsy report and testimony.

       We will address the issues in the above order, but, before doing so, we first

address the applicable standards of review. “District court decisions on whether

to admit or exclude evidence are typically reviewed for an abuse of discretion.”

State v. Dessinger,
958 N.W.2d 590
, 597 (Iowa 2021). However, hearsay claims

are reviewed for corrections of errors at law.
Id.
“The correction for errors at law
                                            7


standard is applicable in determining whether evidence that would generally be

prohibited as hearsay comes in under a hearsay exception.”
Id.
Claims alleging

a violation of the Confrontation Clause are reviewed de novo.
Id.
The district

court’s decision to deny a motion to suppress based on interpretation of a statute

is reviewed for corrections of errors at law. State v. Madison,
785 N.W.2d 706
,

707–08 (Iowa 2010). The district court’s ruling will be affirmed if the law was

applied correctly and substantial evidence supports the court’s findings of fact.

State v. Davis,
922 N.W.2d 326, 330
(Iowa 2019).

       A.      Prior Incidents and 911 Calls

       Arterberry first challenges the admission of testimony from a law

enforcement officer that Howard had contacted 911 on multiple occasions in the

past about Arterberry and had provided different spellings for Arterberry’s last

name. He contends this evidence was hearsay and was improper evidence of

prior bad acts.

       We cannot address this issue because Arterberry did not preserve error.

The district court made no definitive ruling on this topic in its order resolving pretrial

motions in limine, so Arterberry had the obligation to object at trial. See State v.

Thoren,
970 N.W.2d 611
, 620–21 (Iowa 2022). When a question about this topic

was posed to a law enforcement officer during the trial, Arterberry lodged no

objection until the answer had been given. He then raised hearsay and prior-bad-

acts objections, which the district court overruled. Arterberry made no request to

strike the answer. By failing to move to strike the answer after his tardy objection,

he failed to preserve error on this issue. State v. Taylor,
310 N.W.2d 174, 177
(Iowa 1981) (explaining an objection raised after testimony is in the record fails to
                                         8


preserve error “unless a motion to strike is made, an application to place the

objection before the answer is made, or an excuse is offered for the delay in

objecting to the evidence”); see also State v. Howland, No. 22-0519,
2023 WL

3613259
, at *7 (Iowa Ct. App. May 24, 2023).

       B.     Outstanding Warrant

       Arterberry also contends the district court erred by allowing testimony that

he had an outstanding warrant in Michigan when the police arrested him. He

contends this is improper bad-acts evidence in violation of Iowa Rule of

Evidence 5.404(b). The State does not challenge error preservation on this issue.

       Under Iowa Rule of Evidence 5.404(b),3 evidence of other crimes, wrongs,

or acts is admissible under certain circumstances:

       Evidence of a crime, wrong, or other act is not admissible to prove a
       person’s character in order to show that on a particular occasion the
       person acted in accordance with the character. . . . [However, T]his
       evidence may be admissible for another purpose such as proving
       motive, opportunity, intent, preparation, plan, knowledge, identity,
       absence of mistake, or lack of accident.

In ruling on pretrial motions in limine, the district court prohibited the State from

talking about Arterberry’s criminal history, including the outstanding arrest warrant

from Michigan. However, during Arterberry’s opening statement, Arterberry began

developing the theme that law enforcement had tunnel vision that led them to

immediately take Arterberry into custody only two hours after discovering the

murder. Based on these statements, the State asked the court to revisit its ruling

on the motion in limine to allow the State to introduce evidence about the Michigan



3 Trial occurred in 2022, so we refer to the version of rule 5.404 in effect at that

time. An updated version of rule 5.404 became effective on January 1, 2023.
                                           9


arrest warrant. The State pointed out that, due to that warrant, officers were

required to arrest Arterberry, and the State should be allowed to introduce that

evidence to counteract Arterberry’s suggestion that his immediate arrest was a

rush to judgment. The court granted the State’s request, and evidence of the

Michigan warrant was admitted.

       As previously mentioned, Arterberry does not challenge that someone

committed murder, burglary, and robbery.          He only challenges the evidence

establishing that he is that someone, so the fighting issue in this case is the identity

of the perpetrator. When the perpetrator’s identity is contested, bad-acts evidence

may be relevant to prove identity. State v. Putman,
848 N.W.2d 1, 11
(Iowa 2014).

To determine whether bad-acts evidence is admissible for the non-propensity

purpose of establishing identity, the court first determines whether the evidence is

relevant to a disputed factual issue.
Id. at 8
. Also, there “must be clear proof the

individual against whom the evidence is offered committed the bad act or crime.”
Id.
(citation omitted). If the evidence is relevant and there is clear proof, “the court

must determine whether the evidence’s ‘probative value is substantially

outweighed by the danger of unfair prejudice to the defendant.’”
Id.
(citation

omitted).

       The State introduced evidence regarding the warrant to prove Arterberry’s

identity and to give a reason behind his immediate arrest. The officer testified that

the arrest warrant was used to obtain a photograph and name that were ultimately

used to identify Arterberry at the time of his arrest. No other details pertaining to

the warrant were discussed. The evidence was relevant, and there was clear proof

of the warrant. While Arterberry may have suffered minimal prejudice, we find no
                                         10


abuse of discretion in the court’s determination that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice to

Arterberry, so we find no error in the admission of this evidence.

       C.     Howard’s Statements about the May 6 Incident

       The district court permitted evidence in the form of testimony and body-

camera video that, when officers arrived at Howard’s home in response to her 911

call on May 6, Howard reported a variety of details about Arterberry kicking in her

door, Arterberry assaulting her, prior problems with him, and the fact Howard had

called several times in the past about him.       The district court also permitted

evidence in the form of testimony from Howard’s family members and a friend

about statements she made to them about the May 6 incident before her murder.

       Arterberry reprises the arguments made to the district court that all the

described evidence was inadmissible hearsay and that admission of the

statements made to law enforcement officers violated his right to confront

witnesses. As to the hearsay issue, the court found the statements admissible

under the excited-utterance exception. As to the Confrontation Clause objection,

the court found the statements nontestimonial.

              1.     Hearsay and the Excited Utterance Exception

       Hearsay is a statement “(1) [t]he declarant does not make while testifying

at the current trial or hearing; and (2) [a] party offers into evidence to prove the

truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c). In general,

hearsay is inadmissible unless it falls within an exception to the hearsay rule. Iowa

R. Evid. 5.802. One of the recognized exceptions is an excited utterance. An

excited utterance is “[a] statement relating to a startling event or condition, made
                                        11


while the declarant was under the stress of excitement that it caused.” Iowa R.

Evid. 5.803(2).

       In determining whether a statement qualifies as an excited utterance, the

court considers:

       (1) the time lapse between the event and the statement, (2) the
       extent to which questioning elicited the statements that otherwise
       would not have been volunteered, (3) the age and condition of the
       declarant, (4) the characteristics of the event being described, and
       (5) the subject matter of the statement.

State v. Atwood,
602 N.W.2d 775, 782
(Iowa 1999). The rationale for the exception

is that a statement made under the stress of the event is more likely to be truthful

than if the statement was made after reflection. Dessinger, 958 N.W.2d at 601.

       Five people testified about statements Howard made about the May 6

incident—a police officer, three of Howard’s adult children, and Howard’s friend.

       As to the police officer’s testimony, both the officer’s body-camera video

and her testimony establish that Howard was upset and under the excitement of

the event that had just occurred moments before. The district court’s finding that

the foundational facts supporting application of the excited-utterance exception

existed is supported by substantial evidence, so there was no error committed in

allowing the evidence from the officer. See State v. Long,
628 N.W.2d 440, 447
(Iowa 2001) (explaining that when a fact finding is made to determine that a

hearsay exception applies, the finding is upheld if supported by substantial

evidence).

       The other four witnesses talked to Howard on May 6 or the day after. Two

talked to her in person, one talked to her on the phone, and one talked to her by

video call. Three of those four witnesses—two of Howard’s children and her
                                        12


friend—testified that Howard was emotional, was not herself, was stressed out,

had swollen eyes from crying,4 and/or showed signs of fear of Arterberry. The

fourth witness—Howard’s youngest child—did not observe such signs of stress.

      As to the three witnesses who observed the signs of distress as Howard

told them about the events of May 6, substantial evidence supports the district

court’s determination that the statements were admissible under the excited-

utterance exception. We are not persuaded by Arterberry’s contention that the

statements to these three witnesses were not excited utterances because they

occurred hours or a day after the event. The evidence clearly established that

Howard was still under the stress of the May 6 break-in and assault when she

made the statements about that event. This is not surprising given the traumatic

and violent nature of it. The excited-utterance exception was properly applied, so

there was no error in admitting the testimony of these three witnesses. See State

v. Sallis, No. 17-0301,
2017 WL 6040002
, at *2 (Iowa Ct. App. Dec. 6, 2017) (“Our

cases have held that statements made several hours or even days after the

startling event or condition can qualify as excited utterances so long as the

declarant was under the stress of excitement that the startling event or condition

caused.”).

      As mentioned, Howard’s youngest child did not observe Howard to be in an

excited state when Howard made statements describing the events of May 6. As

a result, this witness’s testimony should not have been admitted under the excited-

utterance exception. However, given that this witness’s testimony was cumulative



4 One witness testified that Howard broke down crying during the conversation.
                                          13


to the evidence from the police officer, the testimony of two of Howard’s other

children, and the testimony of Howard’s friend, any error in admitting the testimony

of Howard’s youngest child was harmless. See State v. Elliott,
806 N.W.2d 660,

669
(Iowa 2011) (noting that the presumption of harm by wrongful admission of

evidence can be overcome when the evidence is cumulative, absent

circumstances where the “extra helping of evidence” was necessary to establish

credibility).

                2.     Confrontation Clause

        Arterberry contends that, even if the statements made by the victim to the

law enforcement officer were properly admitted as excited utterances, admission

of those statements violated his right to confront the witness under the Sixth

Amendment of the United States Constitution and article 1, section 10 of the Iowa

Constitution.    The Confrontation Clause allows the admission of out-of-court

testimonial statements only if the declarant is unavailable to testify and the

defendant had a prior chance to cross-examine the declarant.            Crawford v.

Washington,
541 U.S. 36
, 53–5468 (2004).            Statements made from police

interrogation    may   be   testimonial   or   nontestimonial   depending   on   the

circumstances.

        Statements are nontestimonial when made in the course of police
        interrogation under circumstances objectively indicating that the
        primary purpose of the interrogation is to enable police assistance to
        meet an ongoing emergency. They are testimonial when the
        circumstances objectively indicate that there is no such ongoing
        emergency, and that the primary purpose of the interrogation is to
        establish or prove past events potentially relevant to later criminal
        prosecution.
                                         14


Davis v. Washington,
547 U.S. 813, 822
(2006). To be admissible, the statements

generally must be nontestimonial.
Id. at 821
.

       As previously noted, Howard called 911 on May 6 to report that her door

had been kicked in by her ex-boyfriend who assaulted her, threatened to come

back and kill her, and then left before police arrived. When the police responded,

Howard was in her apartment and was visibly upset. When asked what happened,

she began describing the assault. She repeatedly stated, “he is coming back.”

The officers asked follow-up questions to gain an idea of what Arterberry looked

like and where they may find him. Howard cried throughout the conversation and

expressed fear of his return numerous times. As the perpetrator was still at large

after threatening to return and kill Howard, the circumstances indicated an ongoing

emergency that required the officers to continue searching for Arterberry, making

Howard’s statements to police nontestimonial. See Davis,
547 U.S. at 822
. The

conclusion that an ongoing emergency existed is supported by the fact that, after

officers left the interview with Howard, they patrolled the area near her apartment

and searched locations frequented by Arterberry in their effort to find him.

       After our de novo review of the evidence, we agree with the district court

that the statements made during the initial police response were nontestimonial.

As such, their admission did not violate Arterberry’s federal or state Confrontation

Clause rights.

       D.     Admission of Autopsy Report

       Iowa Code section 331.802(5)(a) (2022) requires a person conducting an

autopsy to promptly file a complete record to specified parties, including the county

attorney. An administrative rule expands upon this requirement:
                                           15


       A complete record of the findings of the autopsy shall be submitted
       to the state medical examiner’s office, the county attorney of the
       county where the death occurred and the county attorney of the
       county where the injury contributing to or causing the death was
       sustained within 90 days following the date of death, unless unusual
       circumstances requiring further investigation or testing exist. The
       report filed shall include all diagrams, transcriptions of the autopsy
       observations and opinions, and toxicology reports.

Iowa Admin. Code r. 641–127.3(5) (emphasis added).

       It is undisputed that the medical examiner conducting the autopsy did not

complete and submit the autopsy report until August 17—ninety-nine days after

the date of death and nine days past the ninety-day deadline imposed by the

administrative rule. Arterberry filed a motion seeking to suppress admission of the

autopsy report and the medical examiner’s testimony because of the late

submission. The district court denied the motion. It found the need for further

investigation or testing justified the delay.

       On appeal, Arterberry contends that the late submission of the autopsy

report is not subject to the “further investigation or testing” exception stated in the

administrative rule because the medical examiner had access to the test results

needed to complete the report by late July. We find Arterberry’s interpretation of

the rule to be too narrow. Though the medical examiner received the needed test

results in late July, he testified that he needed time to review the results, interpret

them, reach a conclusion, and incorporate the conclusions into a report. Further,

the medical examiner testified that each homicide is unique and may require

additional analysis when the test results indicate something relatively uncommon,

as they did in this case.
                                          16


       Arterberry suggests the delay was a result of neglect rather than diligence

on the medical examiner’s behalf, but the district court found otherwise when it

determined the need for further investigation or testing necessitated the delay. We

conclude the district court correctly interpreted Iowa Code section 331.802(5)(a)

and administrative rule 641–127.3(5). We further conclude there is substantial

evidence supporting the district court’s finding that the delay fell within the

exceptions of the time requirement set by the rule. Accordingly, we find no error

in the court’s decision to deny Arterberry’s suppression motion. Davis,
922 N.W.2d

at 330
(requiring affirmance when the district court correctly applies the law and

substantial evidence supports the court’s factual findings). As we find no violation

of the statute or rule, we need not and do not address whether the remedy for a

violation would be exclusion of the report or testimony about its contents. As

Arterberry’s constitutional challenges to the district court’s denial of his motion are

premised on violations of the statute or rule—a violation that we find did not

occur—we do not address them either.

III.   Conclusion

       In conclusion, there was sufficient evidence to support the jury’s verdict

finding Arterberry guilty of all three charges. We reject Arterberry’s evidentiary

challenges for the reasons stated in this opinion.           Accordingly, we affirm

Arterberry’s convictions for all three crimes.

       AFFIRMED.