State of Iowa v. Bita Amisi

IN THE SUPREME COURT OF IOWA

No. 22–0624

Submitted October 10, 2023—Filed November 17, 2023

STATE OF IOWA,

Appellee,

vs.

BITA AMISI,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Celene Gogerty,

Judge.

A defendant convicted of operating while intoxicated third offense and

eluding appeals his convictions, arguing that the district court abused its

discretion in admitting evidence about a preliminary breath test and that the

evidence was insufficient. AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which Waterman,
Oxley, and McDermott, JJ., joined. McDonald, J., filed a special concurrence, in

which Christensen, C.J., and May, J., joined.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, P.L.C., Des Moines,

for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.
 2

MANSFIELD, Justice.
I. Introduction.

“[M]en may construe things after their fashion,” says Cicero in

Shakespeare’s Julius Caesar. William Shakespeare, Julius Caesar act 1, sc. 3, l.

34. Jurors, however, are supposed to construe the facts according to what they

see in the courtroom. A recurring problem arises, therefore, when the courtroom

evidence allows the jury to draw an impermissible inference.

Iowa law provides that the results of a preliminary breath test (PBT) are

not generally admissible in an operating while intoxicated (OWI) prosecution.

Iowa Code § 321J.5(2) (2021). Technically, that line was not crossed in this jury

trial. However, over the defendant’s objection, the district court did admit a

portion of an officer bodycam video showing the defendant agreeing to a PBT.

The edited video then jumped immediately to the defendant’s OWI arrest.

We conclude that this juxtaposition of the PBT and arrest violated Iowa

Rule of Evidence 5.403 because it had minimal probative value while strongly

implying to the jury that the defendant had failed the PBT. But given the

overwhelming evidence from other sources that the defendant had been driving

while under the influence, we find the evidentiary error harmless. We also find
sufficient evidence to sustain the defendant’s eluding conviction. Therefore, we

affirm the defendant’s convictions and sentence.

II. Background Facts and Proceedings.

On August 23, 2021, Officer Angel Perez was patrolling in a residential

area of Des Moines. It was approximately 7:37 p.m. and still light outside when

Officer Perez observed a car ahead of him swerve into the oncoming lane of traffic

of the two-lane road. He activated the red and blue emergency lights of his

marked police vehicle and pulled behind the car, which continued to veer back
and forth dangerously between the two lanes. After approximately forty-five
 3

seconds of pursuit with his emergency lights activated, the vehicle still had not

stopped. Officer Perez turned on his sirens, at which point the car noticeably

accelerated and drove in the wrong (lefthand) lane for approximately fifteen

seconds before slowing down and ultimately pulling into an apartment complex

parking lot.

In the parking lot, the driver struggled to park his car, initially hitting the

curb, then backing up too far to correct. At this point, Officer Perez exited his

squad car and verbally ordered the driver to stop and get out of the vehicle. All

of these events were recorded on Officer Perez’s dashcam video, which was

admitted at trial.

When the driver exited his car, Officer Perez observed that he “had

unsteady balance; bloodshot, watery eyes; and alcohol on his breath.” Officer

Perez also saw an open container of an alcoholic beverage inside the vehicle. He

placed the driver, Bita Amisi, in the back of his squad car.

A second officer, Officer James Chadwick, arrived at the scene to perform

an OWI investigation. He conducted a series of field sobriety tests on Amisi.

Officer Chadwick attempted three times to administer the horizontal-gaze

nystagmus test. Amisi, however, failed to hold his head still, preventing the
proper administration of that test. Officer Chadwick marked that down as a

refusal. Amisi then took and failed two more tests—the walk-and-turn and the

one-leg stand. Officer Chadwick’s bodycam video showing Amisi’s performance

on these field sobriety tests was admitted at trial.

Officer Chadwick then offered a PBT to Amisi. The bodycam video shows

Officer Chadwick asking,

So, the last test I’m asking you to do is called a preliminary
breath test. It’s where you blow into a machine. It’s not admissible
in court. It kind of lets us know how much you’ve had to drink.
Would you like to take that test?
 4

Amisi agreed.

As admitted at trial, the bodycam video jumped from Amisi’s consent to

taking the PBT to Officer Chadwick placing Amisi in handcuffs and saying, “Right

now you are placed under arrest for operating a motor vehicle while intoxicated,

OWI.”

Amisi was transported to the police station. At the station, Amisi first told

Officer Chadwick he was “begging” him to take him home. Officer Chadwick

declined and instead brought Amisi inside the station. There he went through

the implied consent procedure. Amisi was uncooperative, speaking over the

officer at times and stating repeatedly that he “wasn’t driving.” Amisi verbally

refused to take the chemical test and signed the form acknowledging that he

declined to provide a breath sample.

On September 1, the State charged Amisi by trial information with OWI

third offense, a class “D” felony, and eluding, a serious misdemeanor. Iowa Code

§ 321J.2(1)(a), (2)(c); id. § 321.279(1)(a). Prior to trial, Amisi’s counsel objected

to the State’s plan to introduce into evidence the portion of the bodycam video

showing Officer Chadwick asking Amisi if he would take a PBT and Amisi

agreeing. The actual administration of the PBT and the results were redacted.
Counsel explained his objection as follows:

MR. McCORMACK: Your Honor, the objection is to a portion
of Exhibit 4, which references -- which features Officer, I believe,
Chadwick offering my client the preliminary breath test.

....

It features him offering the PBT to my client, my client
accepting, and then it cuts the testing process out, and cuts straight
to him being arrested.

THE COURT: What exactly is the objection to that, just for the
record, sir?
 5

MR. McCORMACK: I believe it’s in violation of the statute
regarding the introduction of evidence of the PBT. And even if it’s
not, I would argue it’s more prejudicial than probative, as the only
real inference the jury can draw from the way it’s presented is that
he failed the PBT.

The district court overruled Amisi’s objection, stating that “the fact a PBT

was administered is not barred from evidence . . . [a]s long as the PBT results

are not put into evidence.”

Before Officer Chadwick took the stand, the district court allowed Amisi’s

counsel to make a record that he continued to object to the portion of the video

being played that showed Amisi consenting to the PBT just before being arrested.

After this objection was overruled, the video was played while Officer Chadwick

gave the following narration:

Q. Did you offer the defendant any other test?

A. Yes, I did.

Q. Can you tell us what that test is? A. Called a preliminary
breath test.

Q. And what is the purpose of administering this test?

A. Just measures the breath alcohol content in the breath at
that time.

Q. And when offered this test, did the defendant consent?

A. Yes, he did.

Q. And at this point in the investigation, what did you decide
to do?

A. At this point, I placed the defendant under arrest for
operating a motor vehicle while intoxicated.

The jury found Amisi guilty of OWI and eluding. In a separate

enhancement trial, the State proved that Amisi had received two prior OWI

convictions, and he was convicted of OWI third offense. On March 25, 2022,
Amisi was sentenced to serve consecutive sentences of incarceration not to
 6

exceed five years for OWI third offense and one year for eluding. Iowa Code

§ 321J.2(5)(a); id. § 903.1(1)(b). Amisi timely appealed. We transferred the case

to the court of appeals.

The court of appeals panel affirmed Amisi’s convictions and sentence.

Citing its own decision of Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa Ct. App.

1992), the court reasoned that “[e]vidence that a defendant agreed to take a PBT

is admissible when there is no reference to the results of the test.” The court also

found no rule 5.403 violation. In the court of appeals’ view, the bodycam video

had probative value because it showed Amisi’s “speech and physical

manifestations of intoxication during the process of obtaining his consent.”

Without elaboration, the court added that “the danger of unfair prejudice was

very low.” Lastly, the court found sufficient evidence to sustain Amisi’s OWI and

eluding convictions.

We granted Amisi’s application for further review.

III. Standard of Review.

We review the district court’s decision to admit the video under a mixed

standard of review. Amisi challenges the district court’s interpretation of Iowa

Code section 321J.5(2). When the issue raised is one of statutory interpretation,
“[o]ur review is . . . for correction of errors at law.” State v. Ness, 907 N.W.2d

484, 487 (Iowa 2018) (quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa

2003)). Amisi alternatively challenges the ruling on the basis that the video was

inadmissible under Iowa Rule of Evidence 5.403. “Our review . . . under rule

5.403 is for an abuse of discretion.” State v. Lacey, 968 N.W.2d 792, 807 (Iowa

2021). “However, we will not overturn a conviction for an error in the receipt of

evidence if the error was harmless.” Ness, 907 N.W.2d at 487.
 7

IV. Legal Analysis.

A. Admission of PBT Evidence. In Iowa, peace officers are permitted to

administer a PBT if they have reasonable grounds to believe that a motor vehicle

operator is operating “[w]hile under the influence of an alcoholic beverage or

other drug or a combination of such substances,” “[w]hile having an alcohol

concentration of .08 or more,” or “[w]hile any amount of a controlled substance

is present in the person, as measured in the person’s blood or urine.” Iowa Code

§§ 321J.2(1), .5. The PBT is one gateway—presumably the most common

gateway—to the implied consent procedure. See id. § 321J.6(1).

But the results of the PBT are generally inadmissible:

The results of this preliminary screening test may be used for the
purpose of deciding whether an arrest should be made or whether
to request a chemical test authorized in this chapter, but shall not
be used in any court action except to prove that a chemical test was
properly requested of a person pursuant to this chapter.

Id. § 321J.5(2).

“Because of the PBT’s unreliability, ‘the legislature chose to make the

“results” inadmissible in evidence.’ ” Albrecht, 657 N.W.2d at 479 (quoting State

v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987)). We have held that the term

“result” is not limited to an actual numeric result, but also includes the mere
fact that the defendant passed or failed the PBT. Deshaw, 404 N.W.2d at 158.

That is, “the showing of positive on the test, indicating the presence of some

alcohol, is a ‘result’ of the testing which may not be used as evidence in court.”

Id.; see also Massengale v. State, 894 S.W.2d 594, 595–96 (Ark. 1995)

(concluding that evidence the defendant had an “unsatisfactory” result on a PBT

was inadmissible, although finding the error harmless).

Here, the State argues that Iowa Code section 321J.5(2) was not violated
because no test results of any kind were actually admitted. Amisi counters that
 8

the spliced video showing him being asked and agreeing to take the PBT and

then being promptly arrested effectively told the jury that he had failed the test.

His position is that the statute precludes both direct and circumstantial evidence

of the PBT test results.

The district court and the court of appeals relied on an earlier court of

appeals decision in upholding the State’s position. Gavlock, 493 N.W.2d 94.

Gavlock was a civil case. Id. at 96. The defendant’s vehicle had crossed the center

line and collided head-on with the plaintiff’s vehicle, inflicting various injuries

on the plaintiff. Id. at 95–96. At trial, a police officer was allowed to testify over

objection that he administered a PBT at the scene to the defendant. Id. at 96.

There was other compelling evidence of the defendant’s intoxication. Id. at 96–

97. The court of appeals briefly observed that “this ruling was proper because

the statement made no reference to the results of the P.B.T.” Id. at 96.

Another relevant precedent is State v. Zell, 491 N.W.2d 196 (Iowa Ct. App.

1992). The first issue on appeal centered on the following exchange between the

prosecutor and the arresting officer:

Q. Okay. What did you do next? A. I believe I waited until the
dispatcher from Decorah gave me the driver’s license information on
Mr. Zell and it came back that he did in fact have a valid driver’s
license Iowa.

Because of Mr. Zell’s speech being slurred, my observation of
his balance not being what I thought it should be, the fact that he
admitted to me he had been drinking, I asked Mr. Zell if he would
take an alco-sensor test or a preliminary breath test.

Q. And what was the result of the-well, what happened-what
was the result of the preliminary breath test? A. When I first asked
Mr. Zell if he would take the test, I noted a quote from him was he
asked me “What’s the use. I am over.”

Q. Okay. I probably shouldn’t ask the result of the preliminary
breath test because I could get in trouble for asking that but let me
ask [--] After he gave the preliminary breath test, what happened
next?
 9

Id. at 197.

At this point, defense counsel moved for a mistrial “because of the mention

of the preliminary breath test.” Id. The district court overruled the motion but

gave the following cautionary instruction: “Ladies and Gentlemen, there was

some reference to a preliminary breath test. That is not to be considered by you

for any purpose whatsoever and please disregard any reference to that.” Id.

On appeal, the court of appeals concluded that it “need not decide”

whether “the prosecutor stepped over the line.” Id. at 198. Instead, it held, “Given

the fact the exact results of the test were not admitted, and the fact the trial

court instructed the jury to disregard any reference to the preliminary breath

test, we do not find the trial court abused its discretion in not granting a

mistrial.” Id.

While Gavlock and Zell are the latest words from our courts in a reported

decision, the North Dakota Supreme Court has more recently considered when

evidentiary use of the PBT crosses the line. State v. Rende, 905 N.W.2d 909 (N.D.

2018). In Rende, the following testimony was given:

Q. Now, Trooper Langer, at that point in time, you had asked
her for the preliminary breath test, correct?

A. Correct. Yes.

Q. And did the Defendant perform that?

A. She did. Yes.

Q. And once she had performed that, what did you do next?

A. I placed her under arrest for driving under the influence of
alcohol.

Id. at 912. The state supreme court concluded:

The above questioning would have almost certainly left the
jury with the conclusion Rende had failed the preliminary breath
test. Interpreting the term “result,” as provided in N.D.C.C. § 39–20–
 10

14(3) to include only numerical values and exclude statements
regarding passing or failing the preliminary breath test, defeats the
purpose of N.D.C.C. § 39–20–14(3). That line of questioning is also
inconsistent with this Court’s decision in [City of Fargo v. Erickson,
598 N.W.2d 787 (N.D. 1999),] which recognized that even the
question of whether or not a driver consented to the preliminary
breath test is irrelevant and inadmissible.

Id.

Erickson, 598 N.W.2d at 790–91, cited by the North Dakota Supreme Court

in Rende, held that evidence of a driver’s consent to take a PBT did not violate

that state’s laws, but should have been excluded because it was irrelevant:

We agree the language of N.D.C.C. § 39–20–14 explicitly refers
to the result of an A.L.E.R.T. test, and not to the admissibility of
whether a person consented to take an A.L.E.R.T. test. However,
N.D.R.Ev. 401 defines relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” . . .

Probable cause for Erickson’s arrest was not an issue at trial
rendering the result of the test irrelevant and inadmissible under
N.D.C.C. § 39–20–14. Thus, whether Erickson consented to take a
breath test was also irrelevant evidence having no tendency “to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence.” N.D.R.Ev. 401.

(Citation omitted.)
About a decade ago, the Montana Supreme Court considered an

evidentiary scenario similar to the present case. State v. Lozon, 291 P.3d 1135

(Mont. 2012). In Lozon, a video was admitted showing an officer delivering a PBT

to the defendant, but the volume was muted to prevent the jury from hearing

that the defendant had failed the test. Id. at 1137. The Montana Supreme Court

held that “[a]lthough Lozon’s blood alcohol content level from the [PBT] was not

revealed to the jury[,] . . . [t]he video of the [PBT] administration, followed closely

by Lozon’s arrest, raised a compelling inference that he was over the legal blood
 11

alcohol limit.” Id. at 1138–39. The court reversed the defendant’s conviction.

Id. at 1139–40.

We agree generally with the path followed by the North Dakota and

Montana Supreme Courts. Admission of Amisi’s consent to take the PBT followed

by his arrest did not technically violate Iowa Code section 321J.5(2). The results

of the test did not come into evidence. But rule 5.403 prohibits the use of

evidence where “its probative value is substantially outweighed by a danger of

. . . unfair prejudice.” Iowa R. Evid. 5.403. Here, the evidence was only minimally

relevant while being unfairly prejudicial. It left the jury with the impression that

Amisi had failed the PBT because the last thing the jury saw was Amisi

consenting to the PBT, which “kind of lets [police officers] know how much you’ve

had to drink,” before being arrested.1 Unlike in Zell, the district court did not call

a halt to references to the PBT and instruct the jury to disregard any references

to it. Instead, it allowed the evidence to be repeated through Officer Chadwick’s

testimony.

The State’s contention that it needed the video version of the evidence to

show Amisi’s movements and manner of speech does not persuade us. Thirty

minutes of video from Officer Chadwick’s bodycam were admitted at trial; the
PBT discussion took up only twenty seconds. Those twenty seconds could easily

have been redacted as requested by Amisi’s counsel without affecting the jury’s

ability to evaluate Amisi’s sobriety (or lack thereof). We find that admission of

the evidence violated rule 5.403.

1Moreover, as the voir dire record in this case suggests, jurors are likely to have

background knowledge in this area, from personal experience or otherwise. In 2022, 14,228
drivers in Iowa had their licenses revoked for OWI violations. Iowa Dep’t of Transp., Iowa OWI
Revocations by Year and County 2003-2022 3 (2023), https://iowadot.gov/mvd/factsandstats
(the report can be found by clicking the link titled “OWI revocations in Iowa by county – 2003 to
2022”).
 12

In our view, the district court abused its discretion. It did not attempt to

balance the probative value and danger of unfair prejudice. It simply noted that

the results themselves were not coming into evidence. Any balancing would have

indicated that the probative value was quite minimal and the danger of unfair

prejudice by allowing the PBT results to come in through the back door was

significant.

B. Harmless Error. We now turn to whether this error requires reversal.

The State argues that even if error occurred, it was harmless.

“Where a nonconstitutional error [is] claimed, the test for determining

whether the evidence [is] prejudicial and therefore require[s] reversal [is] this:

‘Does it sufficiently appear that the rights of the complaining party have been

injuriously affected by the error or that he has suffered a miscarriage of

justice?’ ” Ness, 907 N.W.2d at 488 (alterations in original) (quoting State v.

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)).

In State v. Ness, we reversed for a new trial where the state conceded that

a test using a PBT device should not have been admitted at trial. Id. at 487, 489.

We characterized the evidence as “strong” but not “overwhelming”:

This includes several witnesses’ testimony that Ness gave off a
strong smell of an alcoholic beverage, had bloodshot and watery
eyes, was unsteady on his feet, and slurred his speech; Ness’s
admission at the probation office that he had been drinking; and
Ness’s admissions at the jail that he was presently intoxicated.

Id. at 489.

Yet that case involved the wrongful admission of an actual numerical test

result of .130. Id. We noted that “there is something special about objective

tests.” Id. We also noted that “the prosecutor referred to the .130 test result three

times during her brief closing argument.” Id.
 13

Here the prosecutor did not mention the PBT at all in closing argument.

And there was little need to, since there was considerable other evidence of

Amisi’s intoxication. Officer Perez’s dashcam video shows Amisi’s vehicle

repeatedly swerving all the way into the oncoming lane of traffic. Amisi had

difficulty simply parking his car in a parking lot. Amisi was found with an open

container of an alcoholic beverage in his car and admitted to officers that he had

last drank about an hour ago. He smelled of an alcoholic beverage and failed

three different field sobriety tests. His manner of speaking was voluble, and what

he said often didn’t make sense. At the station he first begged to be driven home,

then became obstructionist, and finally denied that he had even driven the car.

We conclude that Amisi’s rights were not injuriously affected, and he would have

been found guilty even without the 20 seconds of video concerning the PBT. The

rule 5.403 error was harmless. See State v. Garrity, 765 N.W.2d 592, 597–98

(Iowa 2009) (finding the admission of the defendant’s refusal to take a chemical

test where his section 804.20 rights were violated to be harmless error in light of

the defendant’s behavior and his having failed three sobriety tests, having

admitted to drinking, and smelling of an alcoholic beverage on his breath).

While the concepts of abuse of discretion and harmless error are related
in some ways, they are analytically distinct. “Danger of unfair prejudice” differs

from actual prejudice. Thus, our precedent indicates that there are occasions

when a rule 5.403 violation should be regarded as harmless. See, e.g., State v.

Martin, 704 N.W.2d 665, 673 (Iowa 2005). In State v. Martin, the “police received

a report that a man was ‘pimping’ a female in the 200 block of West Third Street.”

Id. at 667. When the police arrived, they stopped the defendant as he “was in the

area and matched the suspect’s general description.” Id. One of the officers was

familiar with the defendant and his criminal past and initiated a forcible pat-
down. Id. At trial, the officer was permitted to “testif[y] he patted down [the
 14

defendant] because [the defendant] had been ‘arrested for robberies,’ ‘arrested

for assault on a police officer,’ and was ‘known to be violent.’ ” Id. at 671.

On appeal, the defendant argued the district court abused its discretion

in admitting the officer’s testimony. Id. We found that the evidence was probative

of the defendant’s “propensity for violence mak[ing] it more probable the officer

had a good reason to pat him down.” Id. at 672. But any probative value of this

evidence was minimal as the officer’s “reason for patting [the defendant] down—

was not a primary issue in the case, if an issue at all.” Id. On the other hand,

“[t]he evidence of [the defendant’s] violent nature could only serve to inflame the

passions of the jury.” Id. Thus, we found that “the district court should have

excluded the officer’s testimony about [the defendant’s] prior arrests and violent

tendencies” because it violated rule 5.403. Id. at 673.

Although the district court wrongly admitted the officer’s testimony, that

did not require the defendant’s conviction to be reversed. Id. at 673. We

determined that the admission of the evidence did not prejudice the defendant

and was a harmless error for three reasons, including the overwhelming evidence

of guilt. Id.

We followed a similar line of reasoning in State v. Parker, 747 N.W.2d 196
(Iowa 2008). The issue in Parker was rooted in a rule 5.609(b)(1) analysis. Id. at

205, 208. This rule limits trial counsel’s ability to impeach a witness with past

convictions under certain circumstances and requires a similar balancing to rule

5.403, although with the burden placed on the party seeking to introduce the

conviction. Iowa R. Evid. 5.609.

In Parker, the defendant “was convicted by a jury of second-degree robbery

and sentenced as an habitual offender.” 747 N.W.2d at 200. At trial, the

defendant took the stand, and the state was permitted to introduce the
defendant’s thirteen-year-old drug convictions. Id. at 202. The defendant
 15

appealed, asserting that this evidence should have been excluded under rule

5.609. Id. at 205.

We agreed. Id. at 209. “[T]here were no circumstances presented to reveal

the two convictions had any particular probative value to aid the jury in

assessing [the defendant’s] credibility as a witness.” Id. On the other hand, “[t]he

two prior drug convictions not only potentially cast [the defendant] as a drug

dealer, but one conviction involved dealing drugs near schools. An obvious

danger exists that a jury may convict such an individual with little concern for

his actual guilt as to the crime in question.” Id. at 208–09. Thus, we found that

the defendant’s “prior drug convictions were inadmissible under rule 5.609(b)”

and “[t]he trial court erred in admitting the prior drug convictions into evidence

at trial.” Id. at 209.

But we then relied on Martin and considered “the existence of

overwhelming evidence of guilt” in the record. Id. at 210. On that basis, we found

the error was harmless and did not warrant a new trial. Id.

The United States Court of Appeals for the Eighth Circuit has followed a

similar approach under Federal Rule of Evidence 403. See United States v.

Ramos, 852 F.3d 747, 755–57 (8th Cir. 2017) (finding a rule 403 violation but
determining the error was harmless in light of the overwhelming evidence of the

defendant’s guilt). In summary, we conclude that while evidence of the

defendant’s consent to taking the PBT followed by his arrest amounted to a rule

5.403 violation, the violation was harmless.

C. Sufficiency of the Evidence. Finally, we address Amisi’s challenge to

the sufficiency of the evidence, beginning with the OWI conviction. For the

reasons already discussed, there was sufficient evidence to support Amisi’s OWI

conviction. A reasonable jury could find that he was operating his vehicle while
under the influence of an alcoholic beverage. See Iowa Code § 321J.2(1)(a).
 16

We turn now to Amisi’s eluding conviction. Iowa Code section

321.279(1)(a) provides, “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 or unmarked official law

enforcement vehicle driven by a peace officer after being given a visual and

audible signal to stop.” The district court’s jury instructions mirrored these

statutory elements.

Officer Perez testified that Amisi failed to stop when the officer activated

his flashers and sirens. The dashcam video supports this testimony. It shows

that initially Officer Perez activated only his flashers. This seemingly had no

impact on Amisi, who continued to drive erratically, careening between the

proper side of the road and the oncoming lane of traffic. When Officer Perez

turned on his sirens as well, Amisi suddenly sped up and drove dangerously the

wrong way up a hill. Only after about 15 seconds did he slow down and begin

the process of pulling over. The evidence thus allowed a reasonable jury to

conclude that Amisi intentionally eluded when given a visual and audible signal

to stop.

V. Conclusion.
For the foregoing reasons, we affirm Amisi’s convictions and sentence.

AFFIRMED.
Waterman, Oxley, and McDermott, JJ., join this opinion. McDonald, J.,

files an opinion concurring specially, in which Christensen, C.J., and May, J.,

join.
 17

#22–0624, State v. Amisi

MCDONALD, Justice (concurring specially).
I join the court’s opinion regarding the sufficiency of the evidence

supporting Amisi’s convictions. I concur only in the result with respect to the

evidentiary issue. I would not reach the issue of whether the district court

abused its considerable discretion in admitting the edited video. Amisi objected

to the admission of the edited video showing his consent to the preliminary

breath test (PBT) and his arrest, but he did not object to Officer Chadwick’s

testimony regarding the same events. Officer Chadwick’s testimony provided

substantially the same evidence as that shown in the video. Iowa’s courts have

repeatedly held that “prejudice will not be found where substantially the same

evidence is in the record without objection.” State v. McKettrick, 480 N.W.2d 52,

60 (Iowa 1992); see, e.g., State v. Reynolds, 746 N.W.2d 837, 843–44 (Iowa 2008)

(holding there was no prejudice where substantially the same evidence was

admitted without objection); State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006)

(“If substantially the same evidence is in the record, erroneously admitted

evidence is not considered prejudicial.” (quoting State v. Deases, 518 N.W.2d

784, 791 (Iowa 1994))); State v. McGuire, 572 N.W.2d 545, 547–48 (Iowa 1997)
(concluding there was no prejudice where substantially the same evidence was

admitted); State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986) (“We have held that

where substantially the same evidence is in the record, erroneously admitted

evidence will not be considered prejudicial.”); State v. Burgdorf, 861 N.W.2d 273,

277 (Iowa Ct. App. 2014) (stating presumption of prejudice is overcome “if

substantially the same evidence is already in the record”). Amisi’s failure to

object to Officer Chadwick’s testimony precludes a finding of prejudice here.

Christensen, C.J., and May, J., join this special concurrence.