IN THE COURT OF APPEALS OF IOWA

No. 14-0894

Filed October 14, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DAVID EDWARD VRBA,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Wright County, Paul B. Ahlers, 

Judge. 

A defendant appeals his conviction and sentence for assault while 

displaying a dangerous weapon. CONVICTION AFFIRMED; SENTENCE 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH 

DIRECTIONS.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick, 

Assistant Attorneys General, Eric Simonson, County Attorney, and Jonathan 

Murphy, Assistant County Attorney, for appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
2

TABOR, Presiding Judge.

A jury convicted David Vrba of assault while displaying a dangerous 

weapon after hearing testimony that he pointed a shotgun at his mother and 

pushed her over a coffee table. On appeal, Vrba argues the jury should not have 

been allowed to consider evidence that he engaged in a “standoff” with police

after his mother fled from the house. He further argues his attorney was remiss 

in (1) not challenging the State’s proof he used or displayed the shotgun, (2) not 

objecting to testimony concerning the mother’s possession of pepper spray to 

protect her from Vrba, and (3) not requesting a limiting instruction concerning the 

pepper spray and the “standoff.” Vrba also challenges his sentence.

Because we conclude the evidence of Vrba’s delayed arrest was 

inextricably intertwined with the assault, we affirm on the evidentiary challenge. 

We find no prejudice from counsel’s challenge to the sufficiency of the evidence

but preserve the remaining ineffectiveness claims. On the sentencing question, 

we conclude the court properly exercised its discretion in denying a deferred

judgment, but we vacate the probationary condition prohibiting Vrba from being 

at private locations where alcohol or controlled substances are present. 

I. Background Facts and Proceedings

“This is Marilyn Vansickel. My son’s flipping out.” So started the 

emergency call Vansickel placed to police from outside the home of her son 

David Vrba on December 2, 2013. Vansickel told the Wright County dispatcher 

Vrba placed his hands on her and took away her keys so she could not leave. 

Vansickel also informed the dispatcher that Vrba was armed with a shotgun, 
3

which he had pointed at his mother several times during their tense encounter. 

Vansickel recounted that Vrba tried to push her over the coffee table, but she did

not hit the floor. As the police closed in on her son’s house, Vansickel said she 

“really didn’t want him killed, but he needs help.”

After several hours of waiting for him to emerge from his house, 

authorities eventually arrested Vrba. The State charged him with assault while 

displaying a dangerous weapon and false imprisonment.1

At trial, Vansickel proved to be a reluctant witness against her son.2 She 

recalled going to his Eagle Grove house to help him move furniture. She found 

the house was a mess, and Vrba bristled when she chastised him about its 

condition. She testified Vrba heard a noise in the kitchen and picked up his 

shotgun from next to the living room couch. She continued: “He aimed into the 

kitchen.” When the prosecutor asked if he carried the shotgun the whole time 

she was inside the house, she replied: “I was probably not there very long. But. 

Um. He had it like in his right hand. And he kept looking into the kitchen.” 

When the prosecutor asked if Vrba pushed her, Vansickel again

equivocated: “I backed into the coffee table. . . . I don’t know if I lost my balance 

or what. . . . I kind of fell over the coffee table backwards.” She acknowledged 

Vrba grabbed her with his left hand as he held the gun in his right hand. Vrba 

 

1 The State originally included a count of assault on a health care provider in connection 

with Vrba’s conduct toward a social worker at the hospital. The court found no probable 

cause to support the enhancement, amended the charge to a simple misdemeanor 

assault, and transferred it to the magistrate court.

2 When asked if she had second thoughts about being involved in the case after Vrba 

was arrested, Vansickel said: “I wish it never would have happened . . . . Because 

things got blown out of shape.” 
4

manhandled his mother with such force that she had red marks on her shoulder 

despite wearing a heavy winter coat. 

After Vansickel managed to get back to her feet, she fled from the house 

without her keys. She then called law enforcement for help. Vansickel

acknowledged at trial that she was hiding behind a tree in a neighboring yard 

when she spoke with the dispatcher. When the officers arrived, in her words, 

“Everything went berserk after that.” 

Eagle Grove Police Chief Ray Beltran responded to Vansickel’s call. She 

told the chief her son had pointed a shotgun at her, and she had grabbed the 

muzzle and pulled it away, telling him to stop. Chief Beltran used a cell phone to 

call Vrba, who stayed inside his house. Vrba sounded “very emotional.” Beltran

told him the police were there to help him—but he needed to step outside. The 

police also used a public address system in trying to communicate with Vrba. It 

took several hours for Vrba to come out of his house, but as the chief told the 

jury, “he finally came out on his own will.” Chief Beltran recalled that when Vrba 

came out of the house, in his undershorts, he looked disoriented and acted like 

he was under the influence of something. Vrba told officers he had not slept for a 

couple of days and was paranoid that “people were trying to get him.” Police 

transported Vrba to the hospital.

Police then obtained a search warrant for Vrba’s house. Inside, officers

recovered two shotguns, one inside of a dog kennel and one leaning against the 

living room couch. Police Captain Josh Kuisle testified the couch was “tipped at 
5

an angle toward the front door. . . . Basically set up for a barricade situation. He 

had a fighting station set up there.”

Vrba testified in his own defense. He denied pointing a weapon at his 

mother and claimed that he did not know police were outside of his house and he 

just fell asleep.

After just over an hour of deliberation, the jury returned a verdict of not 

guilty on the false imprisonment count, but found Vrba guilty of assault while 

displaying a dangerous weapon.

At sentencing, the district court rejected Vrba’s request for a deferred 

judgment and imposed a sentence of 180 days in the county jail, with all but thirty 

days suspended, and placed him on probation for two years. As a condition of 

his probation, the court prohibited Vrba from being at locations where illegal 

drugs or alcoholic beverages were present, even if he was not consuming or 

possessing them. The court added an exception allowing Vrba to dine at

restaurants that serve alcohol, “as long as that’s not the primary focus of the 

business.”

Vrba appeals his conviction and sentence.

II. Scope and Standards of Review

We review the district court’s ruling on admissibility of the “standoff”

evidence for an abuse of discretion. State v. Putman, 848 N.W.2d 1, 7 (Iowa 

2014). An abuse occurs when the district court exercises its discretion on 

grounds or for reasons clearly untenable or to an extent clearly unreasonable. 

Id. Even if the district court has abused its discretion, the defendant must show 
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prejudice before we will reverse. Id. We also review Vrba’s sentence for an 

abuse of discretion; any abuse of discretion necessarily results in legal error. 

See State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). 

Vrba’s claims of ineffective assistance, because of their constitutional 

implications, call for de novo review. State v. McNeal, 867 N.W.2d 91, 99 (Iowa 

2015). 

III. Analysis of Vrba’s Arguments

A. Did the district court abuse its discretion in admitting evidence of 

Vrba’s “standoff” with police?

Before trial, when considering Vrba’s motion in limine, the district court 

ruled the State could offer evidence of the “prolonged standoff, if you will, 

between law enforcement and Mr. Vrba.” But the court prohibited the State from 

revealing the detail that local schools were locked down during that time period. 

At an earlier hearing, the court stated the span of time before Vrba left the house 

was relevant and “largely kind of the res gestae of the crime.”

In its written ruling, the court concluded such evidence was not “improper 

character or bad acts evidence that would be made inadmissible pursuant to 

Rule 5.404, as claimed by Defendant.” But even if the evidence fell into that 

framework, the court declared the evidence admissible as proof of “motive, 

opportunity, intent, preparation, knowledge, identity, or absence of mistake or 

accident.” The court also further ruled the probative value of the evidence was 

not substantially outweighed by the danger of unfair prejudice under rule 5.403. 

We find Vrba preserved error on this issue by securing the court’s final ruling on 

admissibility of the evidence. See State v. Alberts, 722 N.W.2d 402, 406 (Iowa 
7

2006) (explaining that “if the ruling reaches the ultimate issue and declares the 

evidence admissible or inadmissible, it is ordinarily a final ruling and need not be 

questioned again during trial”).

On appeal, Vrba contends the district court should have excluded the 

evidence of his “standoff” with police under Iowa Rules of Evidence 5.4033and 

5.404(b).4 He first asserts the record did not establish “clear proof” that he 

actually engaged in behavior that constituted a “standoff.” Vrba disputes Captain 

Kuisle’s characterization of the “barricade situation” in the living room and points 

to his own testimony that he did not want to talk to anyone and just went to bed. 

Vrba further claims his conduct subsequent to the alleged assault of his mother 

was not relevant to show his intent, motive, opportunity, or consciousness of 

guilt. Vrba also argues the doctrine of inextricably intertwined evidence does not 

allow for admission of the purported “standoff” in this case.

The State points out the only mention of the term “standoff” in front of the 

jury came during defense counsel’s questioning of Chief Beltran.5The State 

further argues that its evidence showed Vrba “initially refused to leave his home 

upon the request of law enforcement and that, after a few hours, the defendant 

 

3

“Although relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.” Iowa R. Evid. 5.403.

4

Iowa Rule of Evidence 5.404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity 

therewith. It may, however, be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident.

5 Q. So it wasn’t in fact until about an hour into the standoff that [Vansickel] even 

mentioned a shotgun; isn’t that correct? A. . . . I’ll keep with my statement. Correct.
8

voluntarily surrendered.” The State argues the captain’s testimony that it 

appeared Vrba had moved furniture to create some sort of barricade was in 

response to cross examination suggesting Vrba did not know the police were 

outside his home. 

The State further contends the disputed testimony “was not evidence of 

character or bad acts at all but rather the res gestae of the crime.” The State 

noted the common law principle of res gestae has evolved into the inextricably 

intertwined doctrine. See State v. Nelson, 791 N.W.2d 414, 421 (Iowa 2010)

(quoting Edward J. Imwinkelried, The Second Coming of Res Gestae: A 

Procedural Approach to Untangling the “Inextricably Intertwined” Theory for 

Admitting Evidence of an Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 

719, 728–29 (2010) (arguing inextricably intertwined doctrine is “modern deLatinized” equivalent of res gestae)).

Evidence that is “‘inextricably intertwined’ in a causal, temporal, relational, 

or spatial sense with the charged offense” need not be excluded under rule 

5.404(b). State v. Caples, 857 N.W.2d 641, 645 (Iowa Ct. App. 2014). Such 

evidence does not point to another crime, wrong, or act but instead is closely 

related to the charged crime. Id. The key question is whether omitting the 

challenged evidence would have “left the narrative of this crime unintelligible, 

incomprehensible, confusing, or misleading.” See Nelson, 791 N.W.2d at 424.

Our supreme court has cautioned that “the inextricably intertwined doctrine 

should be used infrequently and as a narrow exception to the general rule 
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against admitting evidence of other crimes, wrongs, or acts.” Nelson, 791 

N.W.2d at 423.

We believe this case fits within that narrow exception. The circumstances 

immediately following the reported assault and culminating in Vrba’s arrest a few 

hours later were intrinsic to the charged crime. The testimony of Vansickel and 

the officers would have been confusing and incomplete without mention of the 

officers’ efforts to coax Vrba from the house and the subsequent search of the 

crime scene, which resulted in seizure of the shotgun used in the assault. See 

State v. Walters, 426 N.W.2d 136, 140–41 (upholding admission of evidence that 

defendant sexually abused victim after the kidnapping to complete the story of 

the crime). Courts in other jurisdictions have reached similar conclusions

regarding the admissibility of events closely tied to the charged act in time and 

location. See, e.g., United States v. Hood, 774 F.3d 638, 644 (10th Cir. 2014) 

cert. denied, 135 S. Ct. 2370 (2015) (upholding government’s use of evidence of 

uncharged acts necessary to “contextualize the defendant’s arrest as intrinsic 

evidence not subject to Federal Rule of Evidence 404(b)”); Ordway v. 

Commonwealth, 391 S.W.3d 762, 790–91 (Ky. 2013) (“It is difficult to conceive 

how the events that immediately followed the shooting could be omitted without 

impairing the jury’s ability to understand the whole event.”). Vrba’s post-crime, 

pre-arrest conduct was relevant and admissible under the inextricably intertwined 

doctrine.

We recognize even relevant and otherwise admissible evidence must be 

excluded when its probative value is substantially outweighed by the danger of 
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unfair prejudice. See Iowa R. Evid. 5.403. “Unfair prejudice arises when the 

evidence would cause the jury to base its decision on something other than the 

proven facts and applicable law, such as sympathy for one party or a desire to 

punish a party.” State v. Reynolds, 765 N.W.2d 283, 290 (Iowa 2009). We do 

not believe the State’s evidence that Vrba stayed inside his house and possibly 

moved furniture prompted the jurors to reach their verdicts based on sympathy or 

a desire to punish. The State’s witnesses did not characterize the situation as a 

“standoff.” Captain Kuisle’s description of Vrba’s living room as a “barricade 

situation” or a “fighting station” was disputed by the defense case. It was up to 

the jury whether to credit Vrba’s testimony explaining both the interaction with his 

mother and his conduct after his mother alerted police. 

To convict Vrba of aggravated assault, the State was required to offer 

proof Vrba intentionally pointed a firearm toward Vansickel or displayed a firearm 

in a threatening manner toward her. To convict Vrba of false imprisonment, the 

State was required to prove he intentionally confined Vansickel against her will. 

A defendant’s post-crime conduct may be relevant to show his or her intent at the 

time of the offense. See State v. Shanahan, 712 N.W.2d 121, 138 (Iowa 2006) 

(finding prejudicial effect of other-acts evidence did not substantially outweigh 

their probative value). Vrba’s emotional reaction to Chief Beltran’s call and his 

protracted refusal to submit to police authority was probative of the intentional 

nature of his actions while his mother was inside the home. We do not believe

rule 5.403 required exclusion of the evidence challenged by Vrba on appeal. 
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The district court did not abuse its discretion in allowing testimony 

concerning the activity leading up to Vrba’s arrest.

B. Did defense counsel perform below constitutional expectations?

Vrba raises three complaints about the performance of his trial attorney. 

To succeed on his claims of deficient representation, Vrba must show two 

elements by a preponderance of the evidence: (1) trial counsel failed to perform 

an essential duty and (2) this failure resulted in prejudice. See State v. Webster, 

865 N.W.2d 223, 231 (Iowa 2015); see also Strickland v. Washington, 466 U.S. 

668, 687 (1984). If Vrba fails to show prejudice, we need not address whether 

the attorney failed to perform an essential duty. See Webster, 865 N.W.2d at 

231. Because Vrba chose to raise his ineffective-assistance-of-counsel claims

on direct appeal, we may either determine the record is adequate and decide the 

claims or find the record is inadequate and preserve them for postconviction 

proceedings so Vrba may develop a more complete accounting. State v. Neitzel, 

801 N.W.2d 612, 624-25 (Iowa Ct. App. 2011).

Vrba first claims his attorney, in moving for judgment of acquittal,

breached a material duty by failing to challenge the State’s proof for the element 

of using or displaying a dangerous weapon in connection with the assault. On 

the prejudice prong, Vrba contends because of counsel’s omission, the jury was 

allowed to find him guilty under a theory lacking in evidentiary support. 

We bypass the duty question and skip to the prejudice prong. We reject 

Vrba’s claim because a more specific motion would not have been successful. 

The State presented substantial evidence—through the dispatch call and 
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Vansickel’s live, albeit unenthusiastic, testimony—establishing Vrba grabbed and 

pushed her, causing her to fall over the coffee table. He did so while holding a 

shotgun. The evidence showed Vrba pointed the gun at Vansickel more than 

once during their encounter inside the house. The State’s proof created a jury 

question on all of the statutory alternatives of assault presented in the 

instructions. Counsel’s formulation of the motion for judgment of acquittal did not 

result in prejudice to Vrba. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) 

(concluding even if trial counsel could have made a more specific motion for 

judgment of acquittal, a claim of ineffective assistance of counsel cannot be 

established if the State’s evidence was sufficient to generate a jury question on 

defendant’s guilt).

Vrba’s second claim of ineffective assistance of counsel involves 

Vansickel’s habit of carrying pepper spray. Vrba claims his attorney should have 

objected to Vansickel’s testimony that she was prepared to use the spray as 

protection from Vrba on a prior occasion. Vrba’s third claim of ineffective 

assistance focuses on counsel’s failure to request a limiting instruction regarding 

“other wrongful acts”—specifically his conduct in relation to the “standoff” and 

pepper spray evidence. The record does not show whether counsel may have 

had strategic reasons for not raising pursuing these issues. Because the record 

is inadequate to decide these two claims of ineffective assistance of counsel, we 

preserve them for possible postconviction-relief proceedings. See State v. Coil,

264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to his day in court, 

especially when his professional reputation is impugned.”).
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C. Did the district court abuse its discretion in sentencing Vrba?

Vrba first contends the district court, in denying his request for a deferred 

judgment, violated the principle in State v. McKeever, 276 N.W.2d 385, 387 

(Iowa 1979), that no one sentencing factor be determinative. Vrba contends the 

court relied only upon the nature of the offense at the expense of all other 

considerations in Iowa Code section 907.5 (2013). 

We do not read the district court’s reasons for sentencing as violating 

McKeever. The court expressly stated that it was taking into account Vrba’s 

employment, his family circumstances, and his limited prior criminal history. The 

court said the sentence would have been “much harsher” but for the “positive 

things presented to me here today.” Yet the court rejected Vrba’s request for a 

deferred judgment based on the “obviously unacceptable” and “very dangerous 

behavior” he carried out against his mother. The jail sentence and probationary 

period did not amount to an abuse of discretion. See State v. Formaro, 638 

N.W.2d 720, 724 (Iowa 2002). 

Vrba next argues the district court imposed an unreasonable condition of 

probation. The following paragraph of the sentencing order is at issue:

Defendant is prohibited from consuming or possessing alcohol or 

any illegal drug or any drug for which Defendant does not have a 

valid prescription. In addition, Defendant is prohibited from being at 

any location where alcohol or illegal drugs are present, regardless 

of whether Defendant is actually in possession of or consuming 

such alcohol or illegal drugs. This prohibition does not prohibit 

Defendant from being at a public location (e.g., restaurant) where 

alcohol is served, so long as the primary purpose of the 

establishment is not the serving of alcohol and Defendant is not 

consuming or in possession of alcohol at that location[.]
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Specifically, Vrba argues it was unreasonable for the court to prohibit him from 

being at private locations where alcoholic beverages or controlled substances 

are present, even if Vrba is not in possession of or consuming those substances. 

Vrba notes the court’s order allows him to spend “extended time periods in a 

public restaurant surrounded by others consuming alcohol. But the conditions of 

probation prohibit him from riding in a vehicle where there is a container of 

alcoholic beverage in the trunk” and would “prohibit him from visiting friends and 

family who have beer in the refrigerator.”

People placed on probation are subject to the conditions established by 

the judicial district department of correctional services (DCS) subject to the 

approval of the court, as well as any additional “reasonable conditions” which the 

court or DCS may impose “to promote rehabilitation of the defendant or 

protection of the community.” Iowa Code § 907.6. A condition of probation is

reasonable when it relates to the rehabilitative needs of the defendant or the 

protection of the community and is justified by the defendant’s personal 

circumstances. See Valin, 724 N.W.2d at 446. A condition of probation is 

unreasonable if it is unnecessarily harsh or excessive in achieving the goals of 

rehabilitation or public protection. Id. Vrba argues the probationary condition 

prohibiting him from consuming or possessing alcohol or controlled substances,

without a valid prescription, is sufficient to promote the goals of rehabilitation.

We agree with Vrba that it is an unreasonable condition of probation to 

forbid him from entering a private residence or vehicle where alcohol or 

controlled substances are present, even if they are not being consumed. It is 
15

unnecessarily harsh to expect Vrba to inspect the homes or vehicles of friends or 

relatives for prohibited substances before entering. We make the following 

amendment to the paragraph at issue:

Defendant is prohibited from consuming or possessing alcohol or 

any illegal drug or any drug for which Defendant does not have a 

valid prescription. In addition, Defendant is prohibited from being at 

any business establishment whose primary purpose is the serving 

of alcohol.

We otherwise affirm the sentence imposed. We remand for entry of a 

corrected sentencing order consistent with this ruling.

CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED 

IN PART, AND REMANDED WITH DIRECTIONS.