State of Iowa v. Reginald Eugene Stewart, Jr.

IN THE COURT OF APPEALS OF IOWA

No. 22-0936
Filed February 7, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

REGINALD EUGENE STEWART, JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.

A defendant appeals his criminal convictions raising double jeopardy,

insufficient evidence, and evidentiary claims. AFFIRMED.

Lucas L. Asbury of Trey Sucher Law, PLC, Windsor Heights (until

withdrawal), and Shea M. Chapin of The Chapin Center, PLC, Dubuque, for

appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Badding and Buller, JJ.
 2

BADDING, Judge.

An ordinary Thursday night turned violent when Reginald Stewart sliced his

girlfriend’s head, back, and legs with a pocketknife and beat her with brass

knuckles. A jury convicted Stewart of attempt to commit murder, willful injury

causing serious injury, and three counts of domestic abuse assault. Stewart

appeals, raising double jeopardy, insufficient evidence, and evidentiary claims.

We affirm.

I. Background Facts and Proceedings

At around 7:30 a.m. on December 3, 2021, eleven-year-old B.H. sent his

dad a video showing blood splattered all over the upstairs of the home he shared

with his younger brother; their mother, Jill; and her boyfriend, Reginald Stewart.

While narrating in a whispered voice, “[t]here’s blood on here, right there, right

there,” B.H. panned the video to smears of blood on the hallway walls and

bathroom door. In the bathroom, B.H. pointed out drops of blood on the sink,

counter, and floor and brass knuckles in the bathtub.

Frantic, the children’s dad drove to Jill’s mother’s house, where they called

911 to request a welfare check. Corporal Jordan Waddick and Officer Jonathan

Brokens were dispatched to Jill’s home. Before knocking on the front door,

Waddick called Jill’s cellphone. She answered, telling Waddick that she and her

sons were out of town. Sensing something was off, the officers walked around the

house. Brokens saw movement inside, prompting Waddick to try Jill’s phone

again. They could hear the phone ringing inside. When Jill answered, she

“became really defensive,” according to Waddick. She told him that he was

harassing her and tried to get him to leave. Jill eventually admitted she was inside
 3

with her youngest son and Stewart. B.H. had already left for school. Although Jill

insisted that they were fine, Waddick persuaded her to let them inside.

Stewart opened the door to the officers. Once inside, they saw a very “frail

and white” Jill laying on a bed. She was covered up by a blanket and wearing a

sweatshirt with the hood up. Brokens immediately noticed that Stewart had a

pocketknife in his front pants pocket. The officer removed the knife and got Stewart

to step outside to talk with Waddick. Brokens stayed inside with Jill.

Once Stewart was outside, Waddick patted him down and found brass

knuckles in his rear pants pocket. While talking to Stewart, Waddick saw that he

had blood on his hands, forearm, elbows, shirt, and shoes. Stewart told Waddick

that Jill called him that morning to help her clean up blood before her sons woke

up. He claimed that he didn’t know what happened to her or what time he got to

the house, telling Waddick, “Let her tell you.”

Back inside, Jill told Brokens that the night before, people broke into her

house and beat her up. But she couldn’t remember how many or who. Brokens

then made a protective sweep of the house. In the kitchen, he saw a bloody folding

chair against the counter and blankets spread across the entire floor. When

Brokens lifted one of the blankets, he found a pool of dried blood. Concerned, he

went back to Jill, telling her, “There is blood all over.” Brokens asked where she

was injured and if she needed an ambulance. Jill resisted getting medical

treatment, but Brokens called an ambulance anyway. While they were waiting for

it, one of the officers told Stewart there was a lot of blood in the kitchen. He

responded, “Yeah. I know that.” The officer asked Stewart why he didn’t call an
 4

ambulance, and Stewart said it was because he “didn’t find no blood on her.” He

suggested the blood was from Jill’s menstrual cycle.

As Jill was brought out of the house by emergency medical responders,

Stewart yelled at her: “Hey Jill! What happened? Let me know what happened.”

Jill responded, “Somebody broke in here and beat me up last night. That’s why I

called you at 7:00 this morning.” But the only incoming call on Stewart’s phone

was from his cousin “Law” at around 6:00 a.m.

At the hospital, Jill was treated for multiple lacerations “on her scalp, on her

face and forehead, on her back and on her right thigh.” She also had contusions

on her body, face, head, and finger. Jill was in “acute distress” upon her arrival at

the hospital and received two pints of blood. Her scalp wounds, one of which was

down to the skull, were closed with staples, while other lacerations were sutured.

The emergency room physician who treated her said that even though the wounds

were not life threatening, they would leave scars. Jill was discharged from the

hospital later that evening.

Stewart was arrested and charged with first-degree kidnapping, willful injury

causing serious injury, three counts of domestic abuse assault, attempt to commit

murder, and two counts of child endangerment. With Stewart in jail, Jill began to

open up about what had happened to her.

Jill testified at trial that when she and Stewart began dating, they had a

really good relationship—“nothing violent.” That changed on December 2, 2021,

according to Jill. After putting her sons to bed around 8:30 p.m., she and Stewart

stayed up, “talking, kissing, hanging all over each other, having a good night.”

They eventually moved into Jill’s bedroom and tried to have sex. But when Stewart
 5

couldn’t maintain his erection, Jill said he “just went crazy and psycho,” slicing the

top of her head with his pocketknife. Stewart then began yelling at Jill about some

money he thought that he had lost.

Bleeding from her head, Jill testified that she went into the kitchen to look

for the money. About fifteen minutes later, Stewart came up behind Jill while she

was still in the kitchen and hit the back of her head with something hard. Before

he hit her, Jill heard him say, “Why did you kill my brother?” One of Stewart’s

brothers, whom Jill had never met, died the year before from a methamphetamine

overdose.1 The blow knocked Jill to the floor. She then felt Stewart slash her back

with his knife—a cut that went from the top of her shoulder down to her tailbone.

While Jill was lying on the floor, she heard Stewart call his mother and tell her, “I

know who killed my brother.” Phone records show this call lasted twenty-one

minutes. He also sent messages to his other brother that stated, “I found out who

killed Gunny,” and “I merk 1 and I’m finna go get the rest.” “Gunny” was the

deceased brother’s nickname. And “merk,” according to an investigating officer,

“means to kill.”

At some point, Stewart told Jill to get up and sit on a folding chair in the

kitchen. He began interrogating her and punching her in the face while demanding,

“Tell me what you did to my brother.” During the beating, Jill passed out on the

floor by the back door to the kitchen. When she regained consciousness, Jill saw

that Stewart had cut her right thigh with a knife. That cut extended from the side

1 There is no evidence in the record that Jill had anything to do with the death of

Stewart’s brother.
 6

of her upper thigh down past her knee. Jill told Stewart that she needed medical

attention, but Stewart told her that she “would be fine.”

With help from Stewart, Jill crawled from the kitchen floor to the upstairs

bathroom. Jill took her clothes off, and Stewart put her in the bathtub to clean her

up. He stayed with her for a bit before going downstairs and passing out. Jill laid

in the tub for “[p]robably like an hour and a half.” She then made her way back

downstairs and grabbed an old t-shirt from the basement to wrap around her head.

Jill sat up on a couch all night, fearing that she was going to lose her life. When

asked why she wouldn’t let the police in the next morning, Jill testified: “I was just

scared. I did want them inside but didn’t know how to get them inside” since

Stewart was still there with her. As for the break-in story, Jill explained that she

made it up because she loved Stewart and “[d]idn’t want to believe he did that” to

her.

Before the trial, Stewart moved to exclude the testimony of Rachel Haskin,

a forensic interviewer for St. Luke’s Child Protection Center. She interviewed Jill’s

sons several weeks after the assault. The district court denied Stewart’s motion,

telling defense counsel that objections would need to be made during Haskin’s

testimony. But the only objection Stewart raised when Haskin testified was to the

admission of two drawings that B.H. made during his forensic interview with her.

The State interpreted the drawings as showing Stewart covered in blood and

holding a knife. The court did not rule on the objection until B.H. testified, at which

time the court admitted the drawings into evidence. The court also overruled

objections Stewart made to eighteen photographs of Jill’s injuries in various stages

of recovery.
 7

After the State rested, the court granted Stewart’s motion for judgment of

acquittal on the two child-endangerment counts. The jury acquitted Stewart of first-

degree kidnapping but convicted him of attempt to commit murder in violation of

Iowa Code section 707.11 (2021), willful injury causing serious injury in violation

of section 708.4(1), domestic abuse assault causing bodily injury in violation of

section 708.2A(2)(b), domestic abuse assault while using or displaying a

dangerous weapon in violation of section 708.2A(2)(c), and domestic abuse

assault with intent to cause serious injury in violation of section 708.2A(2)(c).

Stewart appeals, claiming that (1) his two convictions under Iowa Code

section 708.2A(2)(c) violate double jeopardy, as do his convictions for willful injury

causing serious injury and domestic abuse assault causing bodily injury; (2) the

evidence was insufficient to support his conviction for attempted murder;

and (3) the district court abused its discretion in admitting certain exhibits and

testimony.

II. Analysis

A. Double Jeopardy

The United States Constitution provides that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

This clause protects against: (1) a second prosecution for the same offense after

acquittal; (2) a second prosecution for the same offense after conviction;

and (3) multiple punishments for the same offense. State v. McKettrick, 480

N.W.2d 52, 56 (Iowa 1992).

Stewart makes two distinct double-jeopardy claims under the multiple-

punishments category—one involving a claim that the same statute was charged
 8

multiple times and another involving a merger issue. See State v. Ross, 845

N.W.2d 692, 701 (Iowa 2014) (distinguishing between the two types of claims).

While we review questions involving the interpretation of statutes and merger for

correction of errors at law, to the extent that resolution of these claims depends on

constitutional principles, our review is de novo. See State v. West, 924

N.W.2d 502, 504 (Iowa 2019); State v. Lindell, 828 N.W.2d 1, 4 (Iowa 2013); see

also State v. Chapman, 944 N.W.2d 864, 871 (Iowa 2020).

1. Same statute

For his first claim, Stewart argues that his convictions for domestic abuse

assault while using or displaying a dangerous weapon and domestic abuse assault

with intent to cause serious injury violate double jeopardy because they fall under

the same code section—Iowa Code section 708.2A(2)(c).2 This provision states

that “[o]n a first offense of domestic abuse assault, the person commits. . . . [a]n

aggravated misdemeanor, if the domestic abuse assault is committed with the

intent to inflict a serious injury upon another, or if the person uses or displays a

dangerous weapon in connection with the assault.”

Focusing on the word “or” in section 708.2A(2)(c), Stewart argues the

statute “clearly provides two alternative avenues for the prosecution to prove the

crime, not two separate crimes.” As a result, he asserts “the State erroneously

parsed this statute into two separate offenses.” But this argument ignores the well-

established proposition “in Iowa law that a single course of conduct can give rise

to multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584

2 We elect to bypass the State’s error-preservation challenge to deny the claim on

its merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
 9

(Iowa 2013). When interpreting other statutes, like the one criminalizing

intimidation with a dangerous weapon with intent, our supreme court has

recognized “a defendant may assault the same victim twice, as long as the

assaults are separate and distinct acts.” Ross, 845 N.W.2d at 706; accord Velez,

829 N.W.2d at 584 (finding two separate acts of willful injury against the same

victim).3 This is because a “defendant should not be allowed to repeatedly assault

his victim and fall back on the argument his conduct constitutes but one crime.”

Constable, 505 N.W.2d at 478 (citation omitted).

Thus, “multiple punishments can be assessed after a defendant is convicted

of two offenses that are not the same.” State v. Smith, 573 N.W.2d 14, 19

(Iowa 1997). “To constitute the same offense for the purpose of invoking the

Double Jeopardy Clause, the offenses must be the same act. Separate acts, even

charged under the same statute, are not subject to Fifth Amendment analysis.”

B. John Burns, 4A Iowa Practice Series, Criminal Procedure § 38:3 (2023 ed.);

accord 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.”).

Stewart does not argue that his two convictions under section 708.2A(2)(c)

were for the same act or complain about the sufficiency of the evidence supporting

3 Like with these other statutes, section 708.2A proscribes domestic abuse assault

in terms of the singular—when a person performs “an” assault. Iowa Code
§ 708.2A(1); State v. Constable, 505 N.W.2d 473, 477 (Iowa 1993) (“Throughout
chapter 709, the legislature proscribed sexual abuse and related crimes in terms
of the singular, when a person performs ‘a’ or ‘any’ sex act.”); accord Velez, 829
N.W.2d at 580 (discussing the importance of the legislature’s use of the phrase
“an act” to denote the unit of prosecution).
 10

two separate assaults. Cf. Ross, 845 N.W.2d at 705–06 (examining the sufficiency

of the evidence to support defendant’s multiple convictions for intimidation with a

dangerous weapon with intent). We will not do so for him. See Hyler v.

Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the

arguments [a party] might have made and then search for legal authority and comb

the record for facts to support such arguments.”). Because Stewart’s claim is

confined to an interpretation of section 708.2A(2)(c) that conflicts with the above

caselaw, we reject this assignment of error.

2. Merger

Stewart next claims that his convictions for willful injury causing serious

injury and domestic abuse assault causing bodily injury violate double jeopardy

because the latter offense is a lesser-included offense of the former.4 When

determining whether the legislature provided for double punishments in the

merger-context, “our first step is to apply the legal-elements test that compares

‘the elements of the two offenses to determine whether it is possible to commit the

greater offense without also committing the lesser offense.’” State v. Johnson, 950

N.W.2d 21, 24 (Iowa 2020).

Stewart concedes that under “the strict, elements-based approach . . . these

statutes appear to be sufficiently distinct as to not violate double jeopardy

protections” because “each contains a single element the other does not.” We

4 Stewart mentions section 701.9 in passing, which is a codification of “the double

jeopardy protection against cumulative punishment.” State v. Anderson, 565
N.W.2d 340, 344 (Iowa 1997). “If the Double Jeopardy Clause is not violated
because the legislature intended double punishment, section 701.9 is not
applicable and merger is not required.” State v. Halliburton, 539 N.W.2d 339, 344
(Iowa 1995).
 11

reached the same conclusion in State v. Smith, where a defendant pled guilty to

“two crimes that arose from the same act”—domestic abuse assault and willful

injury causing bodily injury. No. 15-1252, 2016 WL 3281037, at *1 (Iowa Ct. App.

June 15, 2016); see also State v. Rodriguez, 636 N.W.2d 234, 247 (Iowa 2001)

(finding domestic abuse assault while using or displaying a dangerous weapon and

domestic abuse assault causing bodily injury were not lesser-included offenses of

willful injury causing bodily injury). Yet Stewart argues that under the second step

in our analysis, which considers “whether the legislature intended multiple

punishments for both offenses,” Halliburton, 539 N.W.2d at 344, we should find his

conviction for domestic abuse assault causing bodily injury merged with his

conviction for willful injury causing serious injury. We reject this argument.

In Smith, we agreed with the State that the defendant “was subject to

multiple punishments for the single act of assault because the crimes of domestic

abuse assault and willful injury were intended to address separate evils.” 2016

WL 3281037, at *1; accord Johnson, 950 N.W.2d at 26 (declining to merge

offenses “when the underlying statutes focus on ‘different dangers’”); State v.

Butler, 415 N.W.2d 634, 637 (Iowa 1987) (“By enacting separate statutes the

legislature addressed separate evils.”). We see no reason to depart from that

conclusion here. Cf. McKettrick, 480 N.W.2d at 58 (finding a “clear indication” of

legislative intent that a defendant, who committed a single assault, “may not be

convicted of and receive multiple punishments for both assault with intent to

commit serious injury and assault causing bodily injury”).
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B. Sufficiency of the Evidence—Attempt to Commit Murder

For the attempted murder charge, the jury was instructed that the State was

required to prove the following beyond a reasonable doubt:

1. On or about December 3, 2021, the defendant struck [the
victim] and cut her with a knife.
2. By his acts, the defendant expected to set in motion a force
or chain of events which would cause or result in the death of [the
victim].
3. When the defendant acted, he specifically intended to
cause the death of [the victim].

Accord Iowa Code § 707.11(1). Stewart challenges the sufficiency of the evidence

supporting the last two elements.

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

errors at law, giving high deference to the verdict. State v. Burns, 988 N.W.2d 352,

370 (Iowa 2023). In doing so, we view “the evidence ‘in the light most favorable to

the State, including all reasonable inferences that may be fairly drawn from the

evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (citation omitted).

With this standard in mind, we turn to Stewart’s specific arguments. He first

argues that the evidence was insufficient because while Jill “did suffer from

extensive injuries from the events that took place that night,” the medical evidence

established the cuts and blood loss were “insufficient to cause her death.” But in

State v. Young, our supreme court explained it is “the actor’s expectation of the

consequences of his or her act, not the probability of the act’s success” that is

relevant. 686 N.W.2d 182, 185 (Iowa 2004). More bluntly: “factual possibility or

probability of success is utterly irrelevant.” Id.; accord Iowa Code § 707.11(3)

(stating it is not a defense “that the acts proved could not have caused the death

of any person, provided that the actor intended to cause the death of some person
 13

by so acting, and the actor’s expectations were not unreasonable in the light of the

facts known to the actor”).

Stewart next argues the only direct evidence of his intent “is the testimony

of Jill . . . herself,” which he says is implausible. First, “any nicks in the veracity of

a witness are left to the inspection of the jury.” State v. Boutchee, No. 17-1217,

2018 WL 3302010, at *3 (Iowa Ct. App. July 5, 2018). “It is not our place ‘to resolve

conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the jury.’”

State v. Brimmer, 983 N.W.2d 247, 256 (Iowa 2022) (citation omitted). So while

Jill’s trial testimony differed from statements she made at the scene and after,

those conflicts were for the jury to sort out.

Second, “[s]pecific intent is seldom capable of direct proof.” State v.

Hunt, 801 N.W.2d 366, 376 (Iowa Ct. App. 2011) (citation omitted). As a result,

the State may establish intent “by circumstantial evidence and by inferences

reasonably to be drawn from the conduct of the defendant and from all the

attendant circumstances in the light of human behavior and experience.” State v.

Casady, 491 N.W.2d 782, 787 (Iowa 1992). Here, we have both direct and

circumstantial evidence showing Stewart’s intent to cause Jill’s death.

After he sliced Jill’s scalp open, knocked her to the ground with a blow to

the back of her head, and cut her along her spine, Stewart messaged his brother:

“I found out who killed Gunny” and “I merk 1 and I’m finna go get the rest.” An

investigating officer testified that “merk” is a common slang word meaning “to kill.”

From this, a jury could infer, as the State argued in closing, that Stewart thought

he had killed Jill sometime during his assault. See id. Jill also testified that when
 14

Stewart first sliced her scalp in bed, she “immediately thought he was trying to kill”

her and screamed, “Please, no, I have children.” That fear remained as the attack

continued, with Jill testifying that she was scared for her life while Stewart was

punching her on the folding chair. Even after the assault ended, Jill testified that

she sat on the couch all night, afraid that she was going to die.

While Jill’s injuries were not life-threatening, they were extensive. See

Hunt, 801 N.W.2d at 377 (noting that victim’s “extensive and severe injuries,” while

not life-threatening, were circumstantial evidence of defendant’s intent to seriously

injure and kill the victim). She received fifteen staples in her head, had multiple

knife lacerations sewn up with sutures, suffered multiple contusions all over her

body, and lost twenty percent of her body’s blood volume according to doctors who

testified for the State. The multiple deep cuts to Jill’s body and blows to her head

are further evidence of Stewart’s murderous intent. See id. (“Intent to kill or

seriously injure another may be inferred from the type and number of injuries

suffered by the victim.”); accord Boutchee, 2018 WL 3302010, at *3 (finding

repeated blows to a victim’s head “and the slashing of his wrist—both locations on

the body vulnerable to mortal injuries—qualified as overt acts in furtherance of

[defendant’s] specific intent to kill”). Viewing this evidence in the light most

favorable to the State, a rational trier of fact could conclude that Stewart acted with

the requisite intent. See Hunt, 801 N.W.2d at 377.

C. Evidence Issues

Stewart next claims the district court abused its discretion in (1) admitting

two pictures B.H. drew as “hearsay not falling into any exception”; (2) allowing

forensic interviewer Rachel Haskin to testify; and (3) admitting photographs
 15

showing Jill’s healing injuries. We review these “evidentiary rulings for an abuse

of discretion. However, the standard of review for hearsay is for errors at law.”

State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021) (citation omitted).

1. Drawings

During B.H.’s testimony at trial, the prosecutor presented him with two

pictures that he drew during his forensic interview with Haskin. B.H.’s testimony

about these drawings, like the rest of his testimony, was limited:

Q. I’m handing you two pictures that I have copies of. Do you
remember those? A. Yeah.
Q. What are they? A. Don’t know.
Q. Did you draw them? A. Yeah.
Q. And when you were drawing them, what were you thinking
about? A. Reggie.
Q. You were thinking about Reggie? A. (The witness
indicated affirmatively.)
Q. Are those pictures of Reggie? A. Yeah.

The district court admitted the drawings into evidence, overruling Stewart’s

hearsay objection. In closing arguments, the prosecutor interpreted the drawings

as showing Stewart “covered in blood holding a knife.”

On appeal, the State concedes the drawings are hearsay but contends they

were properly admitted as past recollections recorded under Iowa Rule of

Evidence 5.803(5). Alternatively, the State asserts admission of the drawings was

not prejudicial because they were cumulative of other evidence, which

overwhelmingly established Stewart’s guilt. We find the latter argument

dispositive.

“The erroneous admission of hearsay testimony is presumed to be

prejudicial unless the contrary is established affirmatively; however, the court will

not find prejudice if substantially the same evidence has come into the record
 16

without objection.” State v. McGuire, 572 N.W.2d 545, 547 (Iowa 1997). There

was abundant evidence at trial that came in without objection about the amount of

blood at the scene and on Stewart—from officers, the video B.H. sent to his father,

body cam videos, and pictures of the scene. Corporal Waddick testified that during

his contact with Stewart the morning after the assault, he “observed that he had

blood across his body. It was on his elbows, his hands, his forearm, and what I

suspected at the time to be blood on his shirt.” There was also blood on Stewart’s

shoes and on the pocketknife and brass knuckles the officers removed from his

pants pockets. A criminologist testified that the blood on both weapons matched

Jill’s DNA profile. We agree with the State that the drawings, which “at most

suggested that Stewart had blood on him and may have been holding an object in

his hand,” were cumulative to this “other evidence establishing the bloody scene,

the bloody defendant, and the bloody weapons.”

We also agree with the State that “the force of [the drawings] paled in

comparison to the overwhelming evidence of Stewart’s guilt,” as detailed above.

See State v. Elliott, 806 N.W.2d 660, 669 n.1 (Iowa 2011) (“Another way to show

the tainted evidence did not affect the jury’s verdict is to show other overwhelming

evidence of the defendant’s guilt, making the prejudicial impact of the tainted

evidence insignificant.”). Yet Stewart contends the drawings impacted the jury’s

verdict on attempted murder because the prosecutor used the drawings to play on

the jury’s sympathies, arguing in closing:
 17

We know [B.H.] saw something, right?[5] Like, that is—that’s
straight out of a horror movie. That’s an eleven-year-old drawing the
person who’s been living with them for the better part of a year
covered in blood holding a knife. My interpretation of the exhibit.
You know, [B.H.] wouldn’t talk about it here. He wouldn’t talk about
it in front of the Defendant except to acknowledge that he was
drawing the Defendant, but that’s what that drawing is. That’s
something he saw that night.

The jury, however, acquitted Stewart of first-degree kidnapping—another

indication that the drawings, which were a small part of the State’s case against

Stewart, were not prejudicial. See State v. Taylor, 689 N.W.2d 116, 130

(Iowa 2004) (noting the court’s acquittal of the defendant on a kidnapping charge

was “an indication the bad-acts evidence did not motivate the fact finder to

categorically rule against the defendant”); accord Rodriguez, 636 N.W.2d at 243

n.4 (observing the jury acquitted the defendant of one offense, which indicated a

lack of prejudice).

2. Haskin testimony

Stewart next claims the district court abused its discretion in allowing Haskin

to testify about “the nature of her work, how she conducts interviews with children,

and what she looks for and sees when she conducts those interviews” because

that testimony was “irrelevant to any issue before the trial court.” Although Stewart

objected to Haskin’s testimony in a motion in limine, the court ruled “objections are

going to have to be made during her testimony and then we’ll deal with it on the

record.” And when Stewart renewed the objection at trial before Haskin testified,

the court repeated:

5 At trial, B.H. denied seeing Stewart the night of the assault.
His younger brother
also told an officer that he didn’t see anything. But the younger brother testified
that he heard Stewart yelling at his mom about money and “[a] lot” of pounding.
 18

I think for purposes of appeal and the record, I think you have to
lodge your objection tomorrow during the witness’s testimony. So
I’m not going to exclude her. She can come in and testify. . . . [A]ny
specific question that she’s asked that you think is improper or
objectionable, make sure you lodge that objection tomorrow.

But the only objection Stewart made during Haskin’s testimony was when

the State offered B.H.’s drawings as exhibits. Because he raised no other

objections, Stewart failed to preserve error on this issue. See State v. Harlow, 325

N.W.2d 90, 91 (Iowa 1982) (“[T]he granting or rejecting of a motion in limine is not

reversible error. The error occurs, if at all, when the matter is presented at trial.

An objection should then be made in order to preserve error.”); cf. State v.

Mark, 286 N.W.2d 396, 410 (Iowa 1979) (recognizing an exception to this rule if

the ruling reaches the ultimate issue and unequivocally declares the evidence

admissible or inadmissible).

3. Photographs

Stewart finally claims the court abused its discretion in admitting

photographs showing Jill’s injuries in various stages of healing. He argues “[t]heir

probative value is nil. The prejudicial effect, however, is substantial as they

constitute a cumulative pile of grotesque evidence used to inflame a jury.” See

Iowa R. Evid. 5.403 (“The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice. . . .”).

Our supreme court has “long recognized photographs are not inadmissible

simply because they are gruesome or may tend to create sympathy if there is just

reason for their admission.” State v. Neiderbach, 837 N.W.2d 180, 202

(Iowa 2013) (cleaned up). “Trial courts have discretion in determining whether the
 19

value of pictures as evidence outweighs their grisly nature.” Id. We find no abuse

of that discretion here.

Some of the charges lodged against Stewart required the State to prove

that Jill suffered a serious injury. The jury was instructed that a “serious injury” is

“a bodily injury which creates a substantial risk of death or which causes serious

permanent disfigurement or extended loss or impairment of the function of any

bodily part or organ.” Because the photographs showed Jill’s injuries and their

long-term effects, they were relevant to the issue of serious injury. See id. (finding

that because a video and photograph showed the child’s condition “before trial and

reflected the long-term effects of the injuries [he] had sustained,” they were

“relevant to the issue of the victim’s serious injury”); accord State v. Perez,

No. 22-0276, 2023 WL 152524, at *3 (Iowa Ct. App. Jan. 11, 2023). And the

photographs, which fairly depicted Jill’s condition, “were not so unfairly prejudicial

as to substantially outweigh their probative value.” Perez, 2023 WL 152524, at *3.

They simply “embellished the verbal picture of the events already provided by the

victim.” State v. Munz, 355 N.W.2d 576, 580 (Iowa 1984) (“Even if we assume the

evidence was cumulative, that is not a sufficient reason, standing alone, to require

its exclusion. . . .”).

III. Conclusion

We affirm Stewart’s convictions, concluding his rights against double

jeopardy were not violated and substantial evidence supported the jury’s verdict

finding him guilty of attempt to commit murder. As for the claimed evidentiary

errors, we find Stewart was not prejudiced by the admission of the child’s drawings,

error was not preserved on his objection to the forensic interviewer’s testimony,
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and the photographs showing the victim’s injuries were not so unfairly prejudicial

as to outweigh their probative value.

AFFIRMED.