State of Iowa v. Vester Matthew Rawlins

IN THE COURT OF APPEALS OF IOWA

No. 22-1259
Filed August 30, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

VESTER MATTHEW RAWLINS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister

(preliminary questions of admissibility) and Jeanie Vaudt (motion in limine, trial,

and sentencing), Judges.

A defendant appeals his criminal convictions, challenging the admission of

evidence and failure to merge the convictions. REVERSED AND REMANDED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Ahlers, P.J., Badding, J., and Potterfield, S.J.*

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

(2023).
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BADDING, Judge.

Faced with unavailable witnesses in a domestic-violence prosecution, the

State relied on a 911 call recording and body-cam footage from a responding

police officer to prove its case against Vester Matthew Rawlins. With that

evidence, a jury convicted Rawlins of simple assault and domestic abuse assault

causing bodily injury. Rawlins appeals both convictions,1 raising several claims,

including that the district court erred in admitting the body-cam footage because it

contained testimonial statements that violated his right to confrontation. We

reverse and remand for a new trial.

I. Background Facts and Proceedings

On November 23, 2021, at 2:17 a.m., an unidentified female called 911 and

provided the address of an apartment as it was being told to her by someone else.

After receiving the address, the dispatcher questioned: “What’s going on there?”

The caller responded in a hushed and hurried voice: “I—it’s just—it’s bad, uhm.”

The dispatcher told the caller that she could barely hear her, and the caller

responded: “I know, I—I need you guys to be here real soon.” The dispatcher

asked what was happening, and the caller answered that “someone is assaulting

someone else.” Faint yelling could be heard in the background. When asked

whether any weapons were involved, the caller said that she didn’t know for sure.

In response to further questions, the caller explained it was “male versus

female,” the suspect’s name was “Matt,” and he was assaulting his wife, who had

asked her to call 911. The dispatcher then asked for a description of “Matt” in case

1 Rawlins was granted discretionary review as to his conviction for simple assault.
 3

he took off. The caller said he was white and 6’2”. After the dispatcher asked what

he was wearing, the yelling in the background got louder. There was a long pause,

and then the caller said, “I have to go.” The yelling escalated, continuing until the

call ended.

The dispatcher classified the call “as a priority one, domestic fight,” which

meant it would be “dispatched immediately” because the caller “said there was an

assault currently taking place.” Officer Tyler Kelley got to the apartment around

2:20 a.m., about three minutes after the call came in. Footage from the officer’s

body cam shows that he was met at the front door of the apartment by a black

male. Officer Kelley immediately asked: “Anybody yelling in here or anything?”

The male calmly responded, “Uh, yeah, there was a little bit of shouting going on,”

as he led the officer into the apartment. Officer Kelley followed the male into the

living room, where one female was sitting on a couch and another was sitting on a

chair in the corner with a towel over her mouth. Officer Kelley asked, “Is the

problem still here?” The male and one of the females simultaneously responded.

The female stated: “I think he went out the door, I think he went out the downstairs

door,” while the male said: “Uh, no, he went out the back door. Like right when he

saw a car pull up, man he just wigged out.”

Officer Kelley then questioned: “So what happened I guess, or what’s, just

yelling or what’s going on?” The female in the corner with the towel over her mouth

responded: “No, he physically—he knocked my tooth out, he busted me in the

face.” The other female stated: “Her nose is all bruised.” Officer Kelley responded,

“Oh, okay,” and pulled out his pen and notepad while another officer asked:

“What’s he wearing?” The group collectively responded jeans and a green hoodie.
 4

Officer Kelley asked the injured female her relationship with the suspect, and she

said they were husband and wife. He then asked for her name, date of birth, and

phone number, as well as “his name,” date of birth, and residence. She gave the

officer that information, identifying Rawlins by name. Officer Kelley wrote the

information down as it was given to him and asked again, “Alright so what

happened tonight?” Rawlins’s wife described the assault in more detail, with some

input from the other two witnesses.

A warrant was issued for Rawlins’s arrest, and he was caught about one

week later. In late December, Rawlins’s wife moved to terminate the no-contact

order issued after his arrest. She stated, “I have thought long and hard and have

decided to recant any previous statements I have made. I will not testify against

my husband in any further proceedings.” The State proceeded with its

prosecution, filing a trial information in January 2022 that charged Rawlins with

assault without intent causing serious injury, first-degree harassment, and

domestic abuse assault causing bodily injury. The trial information was later

amended to remove the harassment charge.

After the three witnesses at the apartment failed to appear for defense

depositions, the State moved for a preliminary determination of the admissibility of

the 911 call and body-cam footage under Iowa Rule of Evidence 5.104. The State

argued the statements made in those recordings would not violate the

Confrontation Clause if the witnesses were unavailable for trial because they were

“made during an ongoing emergency investigation” and were therefore

nontestimonial. As for the hearsay obstacle to admissibility, the State argued the

statements qualified as present sense impressions, excited utterances, and
 5

residual hearsay. Rawlins resisted, asserting the statements were testimonial

hearsay not subject to an exception.

An evidentiary hearing was held in May, at which the 911 call, the full thirty-

minute version of the body-cam footage, and Officer Kelley’s deposition were

admitted. The court also admitted the State’s redacted body-cam video, clocking

in at about twelve minutes, that omitted the parts where the officer was “sitting in

his car or walking back and forth.” After considering this evidence, the court ruled

that the statements made during the 911 call and the first 2:25 minutes of the

State’s redacted body-cam video—up until Officer Kelley asked a second time,

“Alright so what happened tonight?”—were nontestimonial. The court deferred

ruling on whether those statements met a hearsay exception, but definitively

excluded any statements after the 2:25 mark “absent production by the State of

the declarants at trial so that they are available for cross-examination.”

On the morning of trial a few weeks later, Rawlins filed a motion in limine

requesting exclusion of (1) the body-cam video “after the :46 second mark”—when

the officer learned Rawlins had fled—on confrontation and hearsay grounds, and

(2) all of the 911 call as hearsay. The court stood by the prior ruling as to Rawlins’s

confrontation argument with the body-cam video and reserved ruling on the

hearsay issues. After jury selection, but before opening statements, the State

presented testimony from dispatcher Kelli Larkins, who received the 911 call, and

Officer Kelley in an offer of proof. With this additional information, the court denied

Rawlins’s motion in limine, concluding the statements in the 911 call and body cam

were excepted from the hearsay rule as present sense impressions.
 6

Knowing that evidence was coming in, the defense focused its opening

statement on the witnesses the State was not calling at trial:

When [O]fficer Kelley arrived, there was not one, not two, but
three people in that apartment. You shouldn’t expect to hear from
any of them. You won’t be able to judge whether or not they’re telling
you the truth, whether or not they’re lying, whether or not this was a
story—nothing—because they won’t be here. You won’t be able to
hear explanations as to why they said some things. Why won’t you
hear from any of them? We don’t know.

Consistent with the defense’s expectation, the State’s evidence did not

include the three witnesses at the apartment. Instead, the State admitted the 911

call through dispatcher Larkins’s testimony, and the first 2:25 minutes of the body-

cam video through Officer Kelley’s testimony. Larkins also testified that in her

opinion, the female caller was “scared, very hesitant to talk,” and “[t]here was

yelling in the background” from someone who “sounded like a male.” And she

agreed that it appeared “the caller was reporting what was happening in the

moment”—a “male assaulting his wife.” For his part, Officer Kelley testified that

when he got to the apartment, Rawlins’s wife “was sitting in a chair. She had a

towel over her mouth because her mouth was still bleeding from getting a tooth

knocked out by the defendant, and she was kind of like cowering in the corner with

the towel over her mouth.” Based on her body language, Officer Kelley thought

that she was “fearful that Mr. Rawlins, the defendant, would return and possibly

assault her further.” And the officer was concerned for her safety “because at that

point [he] was unable to locate the defendant.” Before going to look for Rawlins,

however, Officer Kelley took pictures of the wife’s injuries, which were also

admitted into evidence.
 7

The jury found Rawlins guilty of the lesser-included offense of simple

assault under count one and domestic abuse assault causing bodily injury under

count two. Rawlins appealed following the imposition of sentence.

II. Analysis

Although Rawlins raises other issues on appeal, which we will touch on as

they may arise on remand for new trial, his confrontation claim under the federal

and state constitutions is dispositive.2 We review that constitutional claim de novo.

See State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021).

“The Sixth Amendment’s Confrontation Clause, which is binding on the

States through the Fourteenth Amendment, provides: ‘In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against

him.’” Ohio v. Clark, 576 U.S. 237, 243 (2015) (alteration in original). The

amendment “prohibits the introduction of testimonial statements by a nontestifying

witness, unless the witness is ‘unavailable to testify, and the defendant had had a

prior opportunity for cross-examination.’” Id. (quoting Crawford v. Washington, 541

U.S. 36, 54 (2004)). Since that formulation of the amendment was adopted in

Crawford, “[m]uch of modern confrontation clause jurisprudence turns on the

question of whether the evidence is ‘testimonial’ in nature.” State v. Veverka, 938

N.W.2d 197, 202 (Iowa 2020); accord Clark, 576 U.S. at 244 (“Our more recent

2 Because Rawlins has not argued article 1, section 10 of the Iowa Constitution

should be interpreted differently than the Confrontation Clause in the Sixth
Amendment to the United States Constitution, “we construe the provisions
identically.” State v. Shipley, 757 N.W.2d 228, 234 (Iowa 2008).
 8

cases have labored to flesh out what it means for a statement to be ‘testimonial.’”).

And so it is here.3

In answering that question, we are guided by the United States Supreme

Court’s combined decisions in Davis v. Washington and Hammon v. Indiana, 547

U.S. 813 (2006), a pair of domestic-violence cases. In Davis, the Court considered

whether statements made by a victim during a 911 call were testimonial, 547 U.S.

at 817–18, while in Hammon, the Court examined statements made by a victim at

the scene of the domestic disturbance with her husband in a different room. Id.

at 819–20. “To address the facts of both cases,” the court “expanded on the

meaning of ‘testimonial’” and “discussed the concept of an ongoing emergency,”

explaining:

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.

Michigan v. Bryant, 562 U.S. 344, 356 (2011) (quoting Davis, 547 U.S. at 822).

Courts are to “objectively evaluate the circumstances in which the encounter

occurs and the statements and actions of the parties” in determining the primary

purpose of an interrogation. Id. at 359.

3 On appeal, Rawlins also contends the “State failed to establish the declarants

were unavailable.” We agree with the State that this claim was not raised or
decided in district court, so we will not address it on appeal. See State v. Bynum,
937 N.W.2d 319, 324 (Iowa 2020) (noting that even with constitutional issues, “[i]t
is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we decide them on appeal” (citation
omitted)).
 9

The existence of an ongoing emergency at the time of the police encounter,

while not determinative, “is among the most important circumstances informing the

‘primary purpose’ of an interrogation.” Id. at 361; accord Clark, 576 U.S. at 245

(noting an ongoing emergency “is simply one factor” that informs the inquiry

(quoting Bryant, 562 U.S. at 366)). This is because “an emergency focuses the

participants on something other than proving past events potentially relevant to

later criminal prosecution,” that being “ending a threatening situation.” Bryant, 562

U.S. at 361 (cleaned up). “[W]hether an emergency exists and is ongoing is a

highly context-dependent inquiry.” Id. at 363. Domestic-violence cases—like this

one—“have a narrower zone of potential victims than cases involving threats to

public safety,” according to the Supreme Court. Id. As a result, the Court has

“focused only on the threat to the victims and assessed the ongoing emergency

from the perspective of whether there was a continuing threat to them.” Id. The

use of a weapon also affects whether there is an ongoing emergency, as does the

medical condition of the declarant. Id. at 364. And, notably for this case, nothing

“suggests that an emergency is ongoing in every place or even just surrounding

the victim for the entire time that the perpetrator of a violent crime is on the loose.”

Id. at 365. In the end, “the existence and duration of an emergency depend on the

type and scope of danger posed to the victim, the police, and the public.” Id.

at 370–71.

Under those principles, the Court in Davis found that statements made by

a victim in a 911 call during and shortly after her boyfriend’s attack were not

testimonial. 547 U.S. at 829. Significant to the Court’s reasoning was that the

caller “was speaking about events as they were actually happening, rather than
 10

describing past events.” Id. at 827 (cleaned up). And her “call was plainly a call

for help against bona fide physical threat,” with the questions asked and the

answers given “necessary to be able to resolve the present emergency, rather than

simply to learn . . . what had happened in the past.” Id. In contrast, the statements

made by the victim in Hammon at the scene of the domestic disturbance with her

assailant in a different room were testimonial. Id. at 830. Unlike Davis,

There was no emergency in progress; the interrogating officer
testified that he had heard no arguments or crashing and saw no one
throw or break anything. When the officers first arrived, [the victim]
told them that things were fine, and there was no immediate threat
to her person. When the officer questioned [her] for the second time,
and elicited the challenged statements, he was not seeking to
determine (as in Davis) “what is happening,” but rather “what
happened.” Objectively viewed, the primary, if not indeed the sole,
purpose of the interrogation was to investigate a possible crime . . . .

Id. at 829–30. Also key to the Court’s decision was that the assailant in Hammon

“was armed only with his fists when he attacked his wife,” so removing her “to a

separate room was sufficient to end the emergency.” Bryant, 562 U.S. at 364.

So let’s look at what happened here. Immediately after Officer Kelley

entered the apartment and asked the witnesses, “Is the problem still here?” he was

told that Rawlins had left. Rawlins argues “[f]rom that point on, Kelley’s questions

and the corresponding responses were not addressing any ongoing emergency;

their primary purpose was to establish or prove past events in a criminal

prosecution.” In response, the State asserts there was an ongoing emergency,

pointing to Rawlins’s recent flight, his unknown whereabouts, and the concern that

he would return to the apartment and carry out his threat of murder-suicide—a

threat the officer only learned about toward the end of the interaction, in the portion

of the body-cam video the district court excluded from evidence.
 11

But in making this argument, the State acknowledges the emergency was

“at a pause” when the challenged statements were made. After Officer Kelley

learned that Rawlins had fled, his focus turned investigative when he asked, “So

what happened I guess, or what’s just yelling or what’s going on?” See id. at 365

(noting a conversation that begins as an inquiry to determine the need for

emergency assistance can evolve into testimonial statements). He was not trying

to find out where Rawlins could have gone so that officers could end any threat;

instead, he was trying to establish the circumstances of the assault—“what

happened,” not “what was happening.” Davis, 547 U.S. at 830; accord

Commonwealth v. Wilson, 113 N.E.3d 902, 915 (Mass. Ct. App. 2018) (noting

officer’s concern “about the defendant’s whereabouts was satisfied when the

defendant’s wife told him that the defendant had left the scene,” with the rest of the

conversation focused on historical facts about the crime).

At that point, there was no indication of an immediate ongoing threat to the

victim, the police, or the public. See State v. Bassett, No. 21-0923, 2022

WL 16630788, at *7 (Iowa Ct. App. Nov. 22, 2022) (finding no emergency where

victim advised officers that her boyfriend left, thus “reducing the risk both to herself

and the deputies”). Rawlins had fled the scene in his vehicle, a weapon was not

involved, and the victim did not need medical attention. See Andrade v. United

States, 106 A.3d 386, 389 (D.C. Ct. App. 2015) (relying on the same

circumstances as support for the conclusion that there was no ongoing

emergency); cf. State v. Richards, No. 18-0522, 2019 WL 1057886, at *5 (Iowa Ct.

App. Mar. 6, 2019) (determining statements captured on body-cam video were

nontestimonial where declarant, who was distraught, crying, shaking, bleeding,
 12

and transported to the hospital, told officers the assailant had a gun and wanted

her to die). It was not until later in the interview that Rawlins’s wife mentioned her

fear that he would come back. Her answers before then were simply describing

the circumstances of the past event. See Andrade, 106 A.3d at 391 (finding

victim’s answers to an officer’s questions did not “suggest a focus on dealing with

an emergency” where she “did not request medical assistance” or “ask the police

to take any other emergency steps,” but “simply described the circumstances of

the earlier incident”); cf. State v. London, No. 13-1461, 2014 WL 5475727, at *7

(Iowa Ct. App. Oct. 29, 2014) (finding primary purpose of officer’s questions “was

to ‘enable him to assess the situation and to meet the needs of the victim,’” where

the officer found the victim on the floor “crying, upset, and worked up” in a pool of

blood and the victim kept repeating that she had been hit with a bat by the

defendant, who had fled (citation omitted)); State v. Moore, No. 10-1283, 2012

WL 3194116, at *2 (Iowa Ct. App. Aug. 8, 2012) (concluding victim’s statements

to emergency personnel and an officer at the scene were nontestimonial where

made “in the context of seeking help for injuries and protection from Moore, not as

part of a police investigation”).

We have also considered the formality of the interview. While it took place

in the victim’s living room, her statements “deliberately recounted, in response to

police questioning, how potentially criminal past events began and progressed,”

some time after the events described were over. Davis, 547 U.S. at 830. And

after he asked what happened, Officer Kelley pulled out his note pad and pen and

took notes about those past events. All of this is more like the “formal station-

house interrogation in Crawford” than the more spontaneous statements made
 13

during the 911 call in Davis or the statements made in Bryant by a man “lying in a

gas station parking lot bleeding from a mortal gunshot wound to his abdomen.”

Bryant, 562 U.S. at 366, 375.

Considering all these circumstances, we find this case is closer to the

testimonial statements in Hammon than the nontestimonial statements in Davis.

Other courts have reached the same conclusion in circumstances comparable to

this one. See, e.g., Andrade, 106 A.3d at 391–92 (collecting cases); see also

Wilson, 113 N.E.3d at 917 (finding no ongoing emergency after officer learned the

defendant had left and then gathered information about what happened from the

victim). Because the portion of the video allowed into evidence contained

testimonial statements by declarants that were unavailable and not subject to

cross-examination, we agree with Rawlins that his right to confrontation was

violated.

This does not end our inquiry, however, because reversal is not mandated

if the State proves the error was harmless beyond a reasonable doubt. See State

v. Newell, 710 N.W.2d 6, 25 (Iowa 2006). We find the State has not met that

burden, considering that the body-cam video was the lynchpin of the State’s case,

which was not strong. Id. (considering the importance of the evidence, whether it

was cumulative, the presence or absence of corroborating or contradictory

evidence, the extent of cross-examination, and the overall strength of the

prosecution’s case). While the video may have been cumulative to some of the

other properly admitted evidence in the record—like photographs of the victim’s

injuries—the officer’s testimony was based on the same statements in the video

that we found should have been excluded. See State v. Kennedy, 846
 14

N.W.2d 517, 528 (Iowa 2014) (considering whether the inadmissible evidence was

cumulative to the admissible evidence). We accordingly find the State failed to

prove the error was harmless beyond a reasonable doubt. As a result, we reverse

and remand for a new trial. See State v. Martinez, No. 21-0145, 2022

WL 1487594, at *5–6 (Iowa Ct. App. May 11, 2022).

III. Other Issues

Although Rawlins’s convictions must be reversed, we will address his claim

regarding the 911 call recording because that issue is likely to come up on

remand,4 see State v. Dudley, 766 N.W.2d 606, 615 (Iowa 2009), as well as a

merger question that implicates double jeopardy.

A. Hearsay—911 Call

Rawlins claims the district court erred in admitting the recording of the 911

call because it contains hearsay not subject to any exception. See State v.

Maldonado, 993 N.W.2d 379, 384 (Iowa Ct. App. 2023) (reviewing district court’s

evidentiary ruling on hearsay for errors at law). The court found the statements

made in the 911 call met the exception for present sense impressions, which

applies to “[a] statement describing or explaining an event or condition, made while

or immediately after the declarant perceived it.” Iowa R. Evid. 5.803(1). Rawlins

4 We do not address Rawlins’s claim that the district court abused its discretion in

admitting testimony from a detective about why, in general, a domestic-assault
victim may be reluctant to testify at trial. Unlike the record for the 911 call
recording, the record on the detective’s testimony may be different on retrial, so
there is not much benefit in addressing the issue now. See Sauer v. Scott, 176
N.W.2d 140, 145 (Iowa 1970) (“The record may well be different on retrial and the
question of whether the proper foundation was laid [for expert testimony] will arise,
if at all, in a different context.”); accord State v. Hart, 966 N.W.2d 304, 309 n.6
(Iowa Ct. App. 2021).
 15

challenges this finding because “no evidence established where the caller was in

relation to the events, whether the caller was personally observing the things

described, or when they were observed.” We disagree.

The 911 recording itself discloses that the caller was near the altercation.

The male suspect can be heard yelling in the background throughout the recording,

more muffled at first, but then louder and more clearly later on. The recording

establishes the caller was in the apartment, perceiving the events as they

occurred, and explaining them to dispatch while, or immediately after, they

occurred. See State v. Dessinger, 958 N.W.2d 590, 600 (Iowa 2021) (stating the

rationale underlying the exception for present sense impressions “is that the

declarant has no opportunity to fabricate a statement if the statement is made

during or ‘immediately’ after the event” (quoting Fratzke v. Meyer, 398 N.W.2d 200,

205 (Iowa Ct. App. 1986)). As for Rawlins’s complaint about the caller’s unknown

identity, since the declarant need not be available for admission as a present sense

impression, “lack of knowledge of the identity of declarant should not be a bar to

admission of the unknown declarant’s statement under the hearsay rules where

the statement and surrounding circumstances indicate firsthand observation by the

declarant.” Laurie Kratky Doré, Iowa Practice Series: Evidence § 5.803:1

(Nov. 2022 update). We accordingly find no error in admitting the recording of the

911 call as a present sense impression.

B. Merger

Finally, Rawlins claims that his conviction for simple assault should have

merged into his conviction for domestic abuse assault causing bodily injury under

Iowa Code section 701.9 and Iowa Rule of Criminal Procedure 2.6(2).
 16

Section 701.9—a codification of “the double jeopardy protection against

cumulative punishment,” State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997)—

provides:

No person shall be convicted of a public offense which is
necessarily included in another public offense of which the person is
convicted. If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.

Rule 2.6(2) similarly states, “Upon prosecution for a public offense, the defendant

may be convicted of either the public offense charged or an included offense, but

not both.”

Rawlins argues that “[b]ecause the elements of assault are included within

the elements of domestic abuse assault causing bodily injury, assault is a lesser

included offense.” See State v. Folck, 325 N.W.2d 368, 375 (Iowa 1982) (“One

crime is included within another when the lesser is composed solely of some, but

not all, of the elements of the greater and when the greater offense cannot be

committed without committing the lesser.”). The State does not contest that point,

arguing instead that “there is no double jeopardy problem” because the “trial record

supported . . . the jury’s verdict [that] he assaulted [the victim] multiple times.” See

State v. Zmuda, No. 11-0563, 2012 WL 470201, at *2 (Iowa Ct. App.

Feb. 15, 2012) (“Double jeopardy principles . . . do not apply when a defendant is

convicted of multiple offenses for different assaults.”); accord State v. McKettrick,

480 N.W.2d 52, 56 n.2 (Iowa 1992); State v. Delap, 466 N.W.2d 264, 266 (Iowa

Ct. App. 1990).

The State is correct that where “the alleged acts occur separately and

constitute distinct offenses, there can be no complaint one is a lesser-included
 17

offense of the other.” State v. Flanders, 546 N.W.2d 221, 224 (Iowa Ct. App. 1996)

(noting the “lesser-included offense analysis addresses situations where multiple

charges apply to a single occurrence”). The problem is the case was not presented

to the jury in that way. See id. at 225 (“The State can convict a defendant of both

kidnapping in the first degree and sexual abuse if there are separate and distinct

occurrences of sexual abuse and the case is presented in a manner that requires

the fact finder to make separate factual findings the separate and distinct

occurrences happened.” (emphasis added)).

In its opening statement, the prosecutor told the jury:

On November 23, 2021, the defendant got into an altercation
with his wife. . . . This altercation turned physical when the defendant
struck his wife in the face. This gave her a bloody nose, knocked out
one of her teeth, and, from that wound, blood poured out.

And in closing, the prosecutor argued: “We’ve proven beyond a reasonable doubt

all elements of both counts. On November 23, 2023, the defendant assaulted his

wife. He intended to strike her; and, when he did, he caused her to lose a tooth.”

So while there may have been multiple injuries, as the State asserts on

appeal,5 the State did not argue that there were multiple acts causing those

injuries. See State v. Negrete-Ramirez, No. 07-1059, 2008 WL 4531532, at *2

(Iowa Ct. App. Oct. 1, 2008) (rejecting the State’s argument that the “district court

was not obligated to merge the two convictions because defendant committed

multiple assaults when he cut [the victim’s] face, thumb, and arm” since the “case

was presented to the jury as one continuous course of conduct”). And the jury

5 The State points out that photographs of the victim’s injuries “depicted a swollen

nose, an abrasion on her chin, [and] a lost tooth.”
 18

“was never asked to do the fact-finding necessary to support two separate

assaults.” State v. Love, 858 N.W.2d 721, 725 (Iowa 2015). Instead, the State

tried the case as “one continuing event and submitted [it] to the jury in that manner.”

Folck, 325 N.W.2d at 376. As a result, we find the simple assault conviction must

be set aside. See id.; see also State v. Newman, 326 N.W.2d 788, 793

(Iowa 1982) (finding merger required where the “prosecution from start to finish

was treated by all concerned as a single episode”).

IV. Conclusion

We find the body-cam video contained testimonial statements that violated

Rawlins’s right to confrontation. And we conclude that Rawlins’s conviction for

simple assault should have merged with his conviction for domestic abuse assault

causing bodily injury. For these reasons, we reverse Rawlins’s convictions, vacate

the entry of judgment and sentence on those convictions, and remand for a new

trial on the charge of domestic abuse assault causing bodily injury only.

REVERSED AND REMANDED.