IN THE COURT OF APPEALS OF IOWA

No. 16-1206

Filed October 11, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BENJAMIN ROYER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Terry R. Rickers, 

Judge.

On direct appeal, the defendant challenges his convictions and sentences. 

CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.

Alexander Smith of Parrish Kruidenier Dunn Boles Gribble Gentry Brown 

& Bergmann L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant 

Attorney General, for appellee.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

Benjamin Royer appeals his convictions for operating while intoxicated, 

third offense, in violation of Iowa Code section 321J.2 (2015); leaving the scene 

of an accident resulting in injury, in violation of Iowa Code sections 321.261 and 

321.263; driving while barred as a habitual offender, in violation of Iowa Code 

sections 321.560 and 321.561; and driving while revoked, in violation of Iowa 

Code section 321J.21. He raises several challenges to his convictions and 

sentences, and we address them in turn. 

I.

We begin first with the facts and circumstances of the offenses. This case 

arises out of a 2015 car accident. Royer was operating a motor vehicle and 

failed to stop at a stop sign. A van struck Royer’s vehicle, causing several 

injuries to Royer, Royer’s passenger, Scott Hall, and the occupants of the van. 

Royer exited the vehicle, fled the scene, and went to a nearby apartment 

complex. Police Sergeant James Archer found Royer. Archer observed Royer 

had bloodshot eyes and slurred speech. Archer detected the odor of an alcoholic 

beverage on Royer’s breath. Before Royer was taken to the hospital for medical 

treatment, Archer asked Royer to take a preliminary breath test (PBT). Royer 

refused once he learned no one died in the accident. He refused again when 

Archer suggested taking the breath test could establish his sobriety. After Royer 

received medical treatment at a local hospital, Iowa State Patrol Trooper Durk 

Pearston transported Royer to the local police station. Pearston asked Royer if 

he would to take a PBT, and Royer declined. At the time of the accident, Royer’s 
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driver’s license was barred as a habitual offender and revoked pursuant to 

chapter 321J. 

Royer was charged with operating while intoxicated, third offense, leaving 

the scene of an accident causing injury, driving while barred as a habitual 

offender, driving while revoked, and operating a motor vehicle without the 

owner’s consent. The matter proceeded to trial by jury. The jury found Royer 

guilty of all counts except operating a motor vehicle without the owner’s consent. 

The district court ordered the sentences for leaving the scene of the accident

causing injury to be served consecutively to the sentence for operating while 

intoxicated. The district court ordered the remainder of the sentences to be 

served concurrently with the sentence for operating while intoxicated. Royer 

timely filed this appeal.

II.

A.

Royer first challenges several related evidentiary rulings. Specifically, 

Royer contends it was error for the district court to allow Archer and Pearston to 

testify Royer refused to submit to PBTs. Evidentiary rulings are reviewed for an 

abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). “An 

abuse of discretion occurs when the trial court exercises its discretion ‘on 

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

Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

We find no abuse of discretion here. A recent decision of this court upheld 

the admissibility of evidence showing the defendant refused to submit to a PBT. 

See State v. Smidl, No. 12-2182, 2014 WL 69751, at *2 (Iowa Ct. App. Jan. 9, 
4

2014) (“Evidence of a decision to take a PBT or a refusal to submit to a PBT, 

however, is not deemed inadmissible under section 321J.5(2).”). It is well 

established “[a]dmissions may be implied by the conduct of a defendant 

subsequent to a crime when such conduct indicates a consciousness of guilt.” 

Id. (citing State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995)). The jury was free 

to infer from Royer’s refusal to take the PBTs that he knew he was intoxicated. 

See id. (stating “evidence of Smidl’s refusal to submit to a PBT was admissible 

to show her consciousness of guilt”). We decline Royer’s request to depart from 

our prior decision.

Even if the testimony were improper, the error was not prejudicial. State 

v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011) (“An erroneous evidentiary ruling 

is harmless if it does not cause prejudice.”). There was overwhelming evidence 

of Royer’s intoxication, including testimony from Archer, Pearston, and treating 

paramedics, all of whom observed Royer shortly after the accident. In addition, 

the jury was also shown video footage of Royer taken in the hours immediately 

after the accident. The evidence showed Royer was unsteady on his feet, 

displayed slurred and slowed speech, and was agitated. Officers also found a 

vodka bottle on the driver’s side floorboard of the car Royer was driving and 

empty vodka bottles and a beer can in the vehicle. Under the circumstances, 

any error was not prejudicial to the defendant. 

B.

Related to his first claim, Royer next argues the prosecutor engaged in 

misconduct or committed error in eliciting Archer’s testimony that Royer could 
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prove his sobriety by taking the PBT.1 He also claims the prosecutor engaged in 

misconduct when, during closing arguments, the prosecutor referred to Royer’s 

refusal to submit to PBTs.

The error was not preserved for our review. Royer moved in limine to 

exclude the challenged testimony. The district court overruled the motion, 

concluding Archer’s testimony was relevant and not unfairly prejudicial. If Archer 

were challenging the admissibility of the evidence, he arguably may have 

preserved the issue for appellate review depending on the definitiveness of the 

ruling on the motion in limine. The district court’s ruling on the motion in limine, 

however, did not preserve Royer’s claim of prosecutorial misconduct with respect 

to Archer’s testimony. At the time the evidence was offered, trial counsel did not 

object to the evidence and did not move for mistrial. Error was thus not 

preserved. See State v. Neiderbach, 837 N.W.2d 180, 209 (Iowa 2013) 

(discussing error preservation for claims of prosecutorial misconduct). 

To the extent Royer is claiming the prosecutor also committed error when 

referring to this same testimony during closing arguments, the error is also not 

preserved. Trial counsel objected to the prosecutor’s statements, and the district 

court sustained the objection. Archer failed to move for mistrial on this ground. 

Error was not preserved on this claim. See State v. Krogmann, 804 N.W.2d 518, 

526 (Iowa 2011) (requiring a defendant to move for mistrial after a sustained 

objection to preserve claim of prosecutorial misconduct); State v. Romeo, 542 

N.W.2d 543, 552 (Iowa 1996) (requiring the defendant make an objection to the 

 

1 While the analysis for prosecutorial error and prosecutorial misconduct are the same, 

the phrase prosecutorial error should be used to describe instances of mistake, human 

error, or poor judgment. See State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016).
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alleged error and make a record for appellate review in order to preserve a 

prosecutorial error claim). 

C.

In his third claim of error, Royer contends the district court should have 

granted two motions for mistrial. One motion for mistrial was made after Archer 

testified Royer “was currently barred in the State of Iowa for being a habitual 

violator, and he was also under revocation for an OWI, previous OWI, and I 

believe those are the two infractions.” The second motion was made after the 

owner of the vehicle Royer was driving, Chinberg, testified Royer was previously 

arrested for driving without a license. The basis for the motion was the testimony 

was inadmissible prior acts evidence.

This court reviews motions for mistrial for an abuse of discretion. State v. 

Newell, 710 N.W.2d 6, 32 (Iowa 2006). “[A] court is found to have abused its 

discretion only when defendant shows prejudice which prevents him from having 

a fair trial.” State v. Callender, 444 N.W.2d 768, 770 (Iowa Ct. App. 1989) (citing 

State v. Trudo, 253 N.W.2d 101, 106 (Iowa 1977)). 

In determining whether the district court abused its discretion in denying 

the motion for mistrial, we must address the merits of the underlying evidentiary 

issue. Royer argues evidence of his prior conviction and arrest was inadmissible 

prior-acts evidence under Iowa Rule of Evidence 5.404(b)(1). However, this rule 

of evidence does not require the court to “exclude all evidence of other crimes, 

wrongs, or acts.” State v. Wilson, 878 N.W.2d 203, 211 (Iowa 2016). Instead, 

evidence of other crimes, wrongs, or acts are admissible if “relevant to a 

legitimate, disputed factual issue.” State v. Putman, 848 N.W.2d 1, 9 (Iowa 
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2014) (citing State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004)). “Evidence is 

relevant if it has ‘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.’” Putman, 848 N.W.2d at 9 (quoting Iowa 

R. Evid. 5.401). The relevancy determination is the first step in a three-step test. 

Id. at 8. “There also ‘must be clear proof the individual against whom the 

evidence is offered committed the bad act or crime.’” Id. at 9 (quoting Sullivan, 

679 N.W.2d at 25). If the evidence is relevant and there is clear proof the 

defendant committed the act or crime, then the probative value of the evidence 

must be considered against the potential for unfair prejudice. Id. 

Archer’s testimony was relevant to a legitimate, disputed factual issue and 

admissible. Archer testified Royer was barred as a habitual offender and Royer 

was under revocation due to a past OWI. In this case, Royer was charged with 

operating while barred as a habitual offender and charged with driving under 

revocation. Royer’s status of having his license barred and revoked for operating 

while intoxicated were thus necessary elements of the State’s case. See State v. 

Elsberry, No. 06-0597, 2007 WL 461316, at *1 (Iowa Ct. App. Feb. 14, 2007). 

The probative value of the evidence outweighed any potential for unfair prejudice 

because this evidence was directly relevant to elements of the State’s case. 

Royer contends the evidence was unduly prejudicial because no 

testimony was necessary to prove he was barred as a habitual offender or his 

license was revoked pursuant to 321J because he stipulated to these facts. The 

argument is unavailing. First, Royer did not stipulate to these facts until after 

Archer testified. More important, the defendant cannot control the State’s 
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presentation of its case by stipulating to facts; a defendant’s stipulation to certain 

facts does not preclude the State from introducing evidence of the same. 

Because Royer’s barred status as a habitual offender and revoked status as a 

result of a 321J violation were both elements of the offenses charged, Archer’s 

testimony was admissible and not unduly prejudicial.

For similar reasons, we have little trouble concluding Chinberg’s testimony 

was relevant and admissible. Royer was charged with operating a motor vehicle 

without the owner’s consent. Jury instruction number twenty-three required the 

state to prove: “1. On or about December 26, 2015, the defendant intentionally 

took possession or control of a motor vehicle belonging to Diane Irene Chinberg. 

2. The possession or control was without consent of Diane Irene Chinberg.” 

Chinberg testified she learned Royer was previously arrested for driving without a 

license. The testimony explained when and why Chinberg revoked her consent 

for Royer to drive her vehicle: 

Q: Did you explicitly tell him that he was not allowed to drive 

the vehicle? A: Yes, multiple times.

Q: Do you remember the first occasion that you told him he 

was not allowed to drive it? A: I don’t recall.

Q: Do you know approximately when it was? A: After he 

was arrested. I can’t remember the exact date. The car was put in 

impound.

Because when Chinberg revoked her consent for Royer to operate her 

vehicle was relevant to the State’s second required element and she could 

remember when she revoked her consent relative to the arrest, the past arrest is 

relevant to count IV, operating a motor vehicle without the owner’s consent. The 

testimony is not unfairly prejudicial, and thus, it was admissible. 
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The district court has broad discretion in ruling on a motion for mistrial. 

Fry v. Blauvelt, 818 N.W.2d 123, 132 (Iowa 2012). We will intervene only where 

the discretion has been clearly abused. Newell, 710 N.W.2d at 32. Here, the 

district court allowed into evidence testimony regarding essential elements of the 

charged offenses. The district court did not abuse its discretion when denying a 

mistrial based on this testimony.

D.

Royer’s fourth and fifth claims of error relate to his conviction for driving 

while barred. Specifically, Royer contends the proof of mailing notice of the bar 

is an element of driving while barred, the district court erred in denying his 

requested instruction to that effect, and there was insufficient evidence to prove 

the State mailed notice of the bar. “Our standard of review on issues of jury 

instructions is for errors at law.” State v. Anderson, 636 N.W.2d 26, 30 (Iowa 

2001) (citing State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000)). Our review of 

the sufficiency of the evidence is for the correction of legal error. See State v. 

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). We will affirm the conviction where 

supported by substantial evidence. See State v. Bash, 670 N.W.2d 135, 137 

(Iowa 2003).

Our court recently resolved an inconsistency in our case law regarding the 

issue of whether mailing notice of the bar is an element of the offense of driving 

while barred. We held the offense of driving while barred is comprised of two 

elements: 1) operating a motor vehicle 2) while barred. See State v. Williams, 

No. 16-0894, 2017 WL 3524729, at *5 (Iowa Ct. App. Aug. 16, 2017). “Notice is 

thus not an element of the offense of driving while barred as defined by chapter 
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321.” Id. at *4. The district court did not err in declining the requested 

instruction. On the correct instructions given, there was sufficient evidence to 

support the conviction. There was overwhelming evidence Royer was driving on 

the date in question, including the testimony of his passenger, Hall. And Royer 

stipulated the barment was in effect on the date of the offense within the meaning 

of the relevant statute. We need not dwell on these claims any further. 

E.

Royer’s next challenges his conviction for driving while revoked. 

He first claims the district court erred in refusing to submit his proposed 

marshaling instruction for driving under revocation. The proposed instruction 

provided as follows: 

1. On or about the 26th day of December, 2015, in Dallas County, 

Iowa, the defendant operated a motor vehicle,

2. Upon the public streets and highways of the State of Iowa,

3. While his license was revoked by the Iowa Department of 

Transportation [DOT].

4. The DOT provided notice of the revocation to the address last 

reported by the Defendant to the DOT.

The instructions do not accurately state the law. Royer’s instruction fails

to note the revocation must be for a chapter 321J offense and erroneously adds

mailing of notice as an element. See State v. Kennedy, 846 N.W.2d 517, 521

(Iowa 2014) (stating “the State must prove [defendant] drove a motor vehicle 

while his license was revoked due to a violation of chapter 321J”). Because 

Royer’s proposed instructions do not accurately state the law, the district court 

correctly refused them. Gardner v. Wandersee, No. 06-0454, 2007 WL 1062947, 

at *1 (Iowa Ct. App. Apr. 11, 2007).
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Royer also challenges the sufficiency of the evidence supporting his 

conviction for driving while revoked. Royer contends the State was required to 

prove notice of revocation was mailed to the defendant. We disagree. As with 

driving while barred, driving while revoked has only two elements. The elements 

are: 1) operating a motor vehicle 2) while revoked due to a violation of chapter 

321J. See Kennedy, 846 N.W.2d at 521. With respect to the first element, 

Royer’s blood was found in the vehicle on the driver’s side and the passenger 

testified Royer was driving. With regard to revoked status, Royer stipulated his 

driving privileges were revoked on the date in question. The claim is without 

merit. 

F.

Finally, Royer argues the district court failed to provide a statement of 

reasons explaining why Royer’s sentence for leaving the scene of an accidient 

causing injury (Count II) be served consecutive to the other sentences. The 

State concedes the error on this issue and requests the matter be remanded for 

resentencing. We agree with the concession and remedy. See State v. Hill, 878 

N.W.2d 269, 273 (Iowa 2016) (requiring the district court to identify reason or 

reasons for imposing consecutive sentences).

III.

For the foregoing reasons, this court affirms Royer’s convictions. We 

vacate Royer’s sentence for leaving the scene of an accident causing injury

(Count II) and remand this matter for a resentencing hearing on that count.

CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.