IN THE COURT OF APPEALS OF IOWA

No. 20-0201

Filed August 4, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

RANDELLE DENVER BROWN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

Randelle Brown appeals his convictions after a jury found him guilty of four 

charges. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee.

Considered by Mullins, P.J., Schumacher, J., and Carr, S.J.*

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

(2021).
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CARR, Senior Judge.

Randelle Brown appeals after a jury found him guilty on charges of domestic 

abuse assault causing bodily injury, first-degree harassment, and obstruction of 

emergency communication.1 He challenges the district court rulings denying his 

motions for mistrial and the court’s failure to give a requested jury instruction. 

I. Background Facts and Proceedings.

The State charged Brown with two counts of domestic abuse assault 

causing bodily injury as a third offender, one count of harassment in the first 

degree, and one count of obstruction of emergency communication based on the 

following events, which occurred in June 2019. C.J., who was in a relationship 

with Brown and about twenty-five weeks pregnant, called 911 from a convenience 

store near her home to request an ambulance transport her to the hospital for 

medical treatment. She reported that Brown slapped and punched her before 

grabbing her by the neck and throwing her against a wall. C.J. fell onto her 

stomach and informed medical personnel that she felt pain in her abdomen and 

experienced contractions. C.J. stated that Brown took her phone and threatened 

that he or his friends would kill her and her children if she went to the police. C.J. 

ran to the convenience store for help after escaping from a locked bedroom.

At Brown’s trial, a paramedic who transported C.J. to the hospital and an 

emergency room nurse who treated C.J. each testified that they observed 

scratches or abrasions on the side of C.J.’s neck. Both testified that C.J. was 

 

1 The obstruction charge is a simple misdemeanor from which Brown has no right 

to appeal, but our supreme court granted Brown’s application to treat his notice of 

appeal as an application for discretionary review. See Iowa Code § 814.6(1)(a)(1), 

(2)(d) (2019). 
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tearful and had elevated heart and respiratory rates. The sheriff’s deputy who took 

C.J.’s statement at the hospital testified that C.J. was “crying hysterically” and “very 

upset.” The deputy explained that C.J. stopped crying at some point but began 

again when asked who hurt her, becoming “very fearful and very timid to answer 

questions.” The deputy also testified that he saw “redness [or] scratch marks” on 

the side of C.J.’s neck, dried blood behind her left ear, some redness beneath one 

eye, an abrasion on the left side of her temple, and a cut on the inside of her lip. 

The court admitted into evidence the photos the deputy took at the hospital to 

document C.J.’s injuries. 

Although C.J. consistently gave the same version of events on the day in 

question, she provided a different explanation at trial. C.J. testified that she called 

911 because she “had a severe anxiety attack and wanted to get checked out.” 

C.J. explained that she did not think the ambulance would transport her to the 

hospital for an anxiety attack, so she invented a story about Brown hitting her. She 

testified that the mark on her neck occurred when she nicked herself with a razor 

and the blood behind her ear was the result of an infection from wearing cheap 

earrings. 

At the close of evidence, the jury found Brown guilty as charged. The court 

entered judgment and sentenced Brown to serve five years on the domesticabuse-assault convictions, two years on the harassment conviction, and thirty days 

in jail on the obstruction conviction. The court ordered the sentences to run 

concurrently. 
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II. Motions for Mistrial. 

Brown challenges the denial of his motions for mistrial. Brown moved for a 

mistrial, alleging the prosecutor engaged in misconduct during voir dire and closing 

argument. We review the denial of a mistrial based on prosecutorial misconduct 

for an abuse of discretion. See State v. Coleman, 907 N.W.2d 124, 134 (Iowa 

2018). To prove a claim of prosecutorial misconduct, a defendant must show that 

misconduct occurred that denied the defendant the right to a fair trial. See id. at 

138. In determining whether to grant a defendant a new trial based on 

prosecutorial misconduct, we consider: “(1) The severity and pervasiveness of 

misconduct; (2) the significance of the misconduct to the central issues in the case; 

(3) the strength of the State’s evidence; (4) the use of cautionary instructions or 

other curative measures; [and] (5) the extent to which the defense invited the 

misconduct.” Id. at 140 (quoting State v. Boggs, 741 N.W.2d 492, 508–09 (Iowa 

2007)).

A. Statements made during voir dire.

Brown first moved for mistrial based on the prosecutor asking improper 

questions during voir dire that Brown argues were impermissibly suggestive. 

Because the parties waived reporting of jury selection, the only record of what 

occurred is contained in the parties’ arguments on the motion for mistrial. 

Anticipating that C.J. would recant her prior statements, the prosecutor asked 

potential jurors their opinions about the State pursuing criminal charges against a 

defendant despite the complaining witness’s objection or recantation. When one 

prospective juror answered that the State would need a good reason to do so, the 

prosecutor asked if anyone could think of a reason why a witness might oppose 
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prosecution or recant. Those who responded suggested “intimidation, threats, and 

coercion” as potential reasons. Brown’s counsel then objected and moved for a 

mistrial, arguing the prosecutor’s questions inappropriately suggested there was 

evidence that the State did not possess:

The State is getting way too close to the facts of this case. The fact 

that the State knows it has a recanting witness, the State knows that 

it’s intending to pursue charges against this complaining witness’s 

wishes. What the State has now done is planted the idea in the jury’s 

mind that the State has a good reason for doing this over this 

complaining witness’s objection. It’s an invitation for these jurors to 

make inferences based on evidence that the State knows is not going 

to come in the record.

Because Brown did not object until the prosecutor’s question regarding why a 

complaining witness might not want to pursue criminal charges or might recant a 

prior statement, Brown failed to preserve error on any objection to the preceding 

questions. See State v. Martin, 877 N.W.2d 859, 865 (Iowa 2016) (holding that a 

defendant fails to preserve error on appeal by failing to object to a prosecutor’s 

statements made during voir dire or to raise them to the district court as ground for 

a mistrial).

Brown has failed to establish that the trial court abused its discretion in 

denying a mistrial based on the prosecutor’s voir dire question. Brown argues the 

State’s strategy “is identical” to that addressed in State v. Williams, 427 P.3d 434, 

441 (Utah Ct. App. 2018). But in Williams, the prosecutor proposed answers to 

hypothetical questions that no prospective juror suggested and made encouraging 

statements when a panel member gave the answer she was looking for. See 427 

P.3d at 438-41. The Utah Court of Appeals concluded,

The process employed by the prosecutor in this case was not 

designed to find out what jurors’ thoughts or attitudes were, but 
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instead served as an attempt to influence the jury panel—in effect 

intentionally tainting it with a bias favorable to the State’s case. And 

while the prosecutor never couched her questions or comments by 

reference to a specific victim, it is clear, given the context, that the 

prosecutor was essentially arguing the State’s case and 

inappropriately bolstering the anticipated testimony of the alleged 

victims.

Id. at 441. In contrast, the prospective jurors gave answers to the prosecutor’s 

hypothetical question about why the State might pursue charges over the 

objections of a complaining witness who had recanted. Although there is no 

evidence to show that, after C.J. made her statements at the convenience store 

and Brown’s subsequent arrest, Brown did any of the things the jurors proposed in 

their answers, like using threats, duress, or intimidation, there is no basis for 

concluding the prosecutor asked the question in order “to pre-educate and

indoctrinate jurors as to the State’s theory of the case.” People v. Boston, 893 

N.E.2d 677, 681 (Ill. App. Ct. 2008); see also Williams, 427 P.3d at 441 (quoting 

Boston, 893 N.E.2d at 681). Questions that seek “prospective jurors’ general 

impressions and opinions” are “a proper subject of inquiry.” Martin, 877 N.W.2d at 

868.

B. Statements made during closing argument.

Martin also claims the court abused its discretion in failing to order a mistrial 

based on the prosecutor’s statements during closing argument. 

At the end of her closing statement, the prosecutor told the jury:

Ladies and gentlemen, as part of your job as jurors you’re 

being tasked with judging the credibility of complete strangers, and 

no one said it was going to be an easy task. But that’s what this case 

boils down to, whether or not you believe the tearful and hysterical 

statements made on June 22 or whether you believe what she said 

yesterday, that this was all a lie and she was just having an anxiety 

attack. There’s enough evidence here for you to make that decision. 
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And if you decide that those statements made on June 22 were the 

truth, then the State has met their burden, the State has proven every

element of the offenses. And the—

Brown’s attorney objected, and an off-the-record-discussion took place. The court 

then overruled Brown’s objection, and the prosecutor concluded by stating:

If you find that the statements she made on June 22, 2019, 

that explain everything that they explained, the State has met beyond 

a reasonable doubt the burden, has proven every element of each 

offense. And if you believe what she said in trial yesterday, then the 

defendant is not guilty.

Brown argues that by directing the jury to decide his guilt based solely on 

C.J.’s out-of-court statements, the prosecutor mischaracterized the burden of 

proof, violating State v. Graves, 668 N.W.2d 860, 880 (Iowa 2003). We disagree. 

In Graves, the court held the prosecutor distorted the burden of proof by stating 

that the jury must convict the defendant if it believed the testimony of a law 

enforcement officer. 668 N.W.2d at 880. The supreme court noted that “even if 

the jury believes the government witnesses have told the truth, it might still 

conclude guilt has not been proved beyond a reasonable doubt” because the 

officer’s testimony did not establish all elements of the crime. Id. In contrast, C.J.’s 

statements to medical personnel and law enforcement in June 2019 satisfied the 

essential elements of the crimes with which the State charged Brown.

Brown also claims the prosecutor impermissibly vouched for the credibility 

of C.J.’s out-of-court statements during rebuttal. The prosecutor told the jury:

[W]hat I can tell you about domestic abuse is that the person being 

abused is the expert on how to keep themselves safe. I’m going to 

wait until the right time to escape my abuser so that I can get help 

for me and my unborn child. I’m going to go to Casey’s where I can 

use a phone hysterically in public and cry on the phone to a 911 

operator in public. I’m going to tell the 911 operator exactly what 

happened to me. I’m going to tell her just enough to where I can get 
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treated. Her main fear being her abdomen. But I’m not going to tell 

his name. If I go to Casey’s and I call 911, I’m not calling the police. 

I’m just getting help for me. I’m just getting to the doctor. If I don’t 

say his name, [Brown] can’t get in trouble, and if they don’t know his 

name, [Brown] can’t go to jail. And all these things are going through 

her head and she is conscious enough of her safety and the safety 

of her children and the safety of her unborn child to get exactly what 

she needs to protect herself without saying his name.

Because there is no evidence in the record to support this argument, it was 

improper. But Brown did not object on this basis until after the case was submitted 

to the jury. The court noted had Brown objected earlier, it would have given the 

jury a clarifying or limiting instruction “to clean up any misconceptions.” The court 

did instruct the jury that statements, arguments, questions, and comments by the 

attorneys are not evidence. Under the circumstances, the court did not abuse its 

discretion denying a mistrial.

Finally, Brown argues that during closing statements, the prosecutor 

misstated the evidence regarding how many witnesses testified to certain facts. 

But Brown raised the issue for the first time when responding to the State’s 

resistance to his motion for new trial, and the court did not rule on it. Because 

error was not preserved for our review, we do not address this claim. See State v. 

Manna, 534 N.W.2d 642, 644 (Iowa 1995) (“Our preservation rule requires that 

issues must be presented to and passed upon by the district court before they can 

be raised and decided on appeal.”).

III. Jury Instruction.

Brown also challenges the district court’s denial of his request for a “true 

threat” jury instruction. Our review is for correction of errors at law. See State v. 

Bynum, 937 N.W.2d 319, 324 (Iowa 2020). Although we review the court’s refusal 
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to give a requested jury instruction for error, our review is for an abuse of discretion 

when the jury instruction is not required but discretionary. See id.

The State charged Brown with first-degree harassment, which requires 

proof that, “with intent to intimidate, annoy, or alarm another person,” he 

communicated to another a threat to commit a forcible felony without legitimate 

purpose in a manner likely to cause annoyance or harm. See Iowa Code

§ 708.7(1)(a)(1), (2)(a)(1). The trial court instructed the jury that in order to find 

Brown guilty of first-degree harassment, the State was required to prove Brown: 

(1) communicated with C.J. without a legitimate purpose in a manner likely to 

cause her annoyance or harm, (2) threatened that if C.J. called the cops, he would 

kill her or her children, and (3) did so with the specific intent to intimidate, annoy, 

or alarm C.J. 

Brown argues the court erred in failing to give the jury a “true threat” 

instruction, which provides “threats” are “statements that would be understandable 

by a reasonable person of ordinary intelligence as threats, in light of the 

surrounding circumstances.” State v. Soboroff, 798 N.W.2d 1, 10 (Iowa 2011). 

The purpose of the instruction is to prevent a person from being convicted for 

making a constitutionally protected statement. See id. Brown claims that because 

there is no evidence showing that he owned or had access to a firearm, the jury 

could have found his alleged statements that he or his friends would shoot C.J. 

were “merely idle talk or hyperbole.” Our supreme court has held that the specific 

intent element of harassment under section 708.7 “does not require that the 

harasser have the present apparent ability to carry out the threats.” State v. Button, 

622 N.W.2d 480, 484 (Iowa 2001) (noting the statute provides that threat may be 
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communicated by telephone or mail). The court instructed the jury properly on the 

elements of first-degree harassment, and its refusal to give a true threat instruction 

was not error.

AFFIRMED.