IN THE COURT OF APPEALS OF IOWA

No. 22-1069

Filed June 21, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KRISTLE CAY CURTIS,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Michelle M. 

Wagner, District Associate Judge.

A defendant appeals her conviction for operating while intoxicated, first 

offense. AFFIRMED. 

Stuart G. Hoover, East Dubuque, Illinois, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
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GREER, Judge.

Kristle Curtis was found guilty of operating while intoxicated, first offense, in 

violation of Iowa Code section 321J.2 (Supp. 2021). Before trial, Curtis moved to 

suppress portions of the State’s video evidence where she directed racial slurs and 

other insults towards the arresting officers. The district court denied her motion,

and the jury heard the full videotape evidence, including the racial slurs. On 

appeal, Curtis argues the evidence was unfairly prejudicial—because Curtis failed 

to preserve error, we affirm her conviction. 

I. Facts and Prior Proceedings. 

Just before midnight on November 20, 2021, Officer Nicholas Weber saw a 

white car pull into the parking lot of a retirement community in Waterloo. Because 

this was uncommon in his experience with the location, he followed the vehicle 

until it parked and then drove by it slowly to see the license plate number and who 

was driving. Based on the driver’s longer hair, Officer Weber assumed it was a 

woman. Then Officer Weber drove out of the parking lot and waited at a nearby 

intersection; about fifteen minutes later, the car drove past him again. Officer 

Weber followed the vehicle to an intersection, where the vehicle stopped. There, 

he testified, “it appeared that a subject was thrown from the driver’s side of the 

vehicle, and there was a brief altercation of sorts between the two people next to 

the driver’s side of the vehicle.” One occupant of the car who had exited on the 

driver’s side of the vehicle, Curtis, had shoulder-length hair. The other, a man with 

short hair, exited the passenger side door of the car, then he got back inside1—the 

1 Officer Weber testified he did not see the man reenter the car, but did see him 

exit again.
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car’s brake lights came on, indicating someone was pressing the brakes, before 

he exited the passenger side door again and sat on the curb. The male passenger

admitted to driving at least part of the way between the retirement community and 

the car’s final resting place.

After seeing the occupants leave the vehicle, Officer Weber next observed 

Curtis vomiting and slurring her speech, so he believed she was impaired. After 

Curtis requested medical care, an ambulance was called to the scene and she was 

transported to the hospital. Once Curtis was discharged from the hospital, 

Sergeant John Koontz transferred her from the hospital to the Waterloo Police 

Department. Eventually, because Officer Weber maintained Curtis was the one 

driving the car into the retirement community parking lot, she was arrested and 

transferred from the police department to the jail. 

Ahead of trial, Curtis moved in limine to suppress three discrete parts of 

body camera footage from the police officers that showed Curtis arguing with 

officers and using a racial slur;

2 she argued those specific portions of the footage 

were unfairly prejudicial. A hearing was held on the motion, and Curtis argued 

that, because the instances where she used racial slurs were only portions of 

longer videos, the footage was unnecessary to meet the State’s purpose of 

showing her impairment and would only inflame the jury. Though there was no 

evidence of Curtis’s blood alcohol level, Curtis was willing to stipulate that she was 

intoxicated, but not that she drove the car; so, she argued the challenged portions 

2 Curtis used the “n word” as she wished harm on the officers’ families, but we see 

no reason to repeat the full context of the statements because it is the term rather 

than the context of its use that she challenges as prejudicial.
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of the footage had no probative value. The State declined her stipulation, and 

argued:

Officer Weber indicates he sees her driving. But when we’re

assessing credibility I think one thing that sticks out to me is the 

witness’s or the presenter’s appearance, conduct, age, intelligence, 

memory, and knowledge of the facts. And that prong, her conduct, 

her appearance, her memory those statements would go towards her 

credibility when they're assessing whether or not to believe her 

testimony if she chooses to testify or believe her statements that will 

be played for them that she denies driving when Officer Weber 

indicates he saw her driving.

So the State’s position is that these statements should be 

submitted for the jury to consider, both to ascertain whether or not 

they believe the defendant is under the influence of alcohol or to 

assess her credibility under the credibility instruction.

The State also asserted the evidence of her impairment was necessary to show it 

was alcohol-related and not due to any injury. The district court did not grant 

Curtis’s motion in limine, finding the evidence was probative and not unfairly 

prejudicial. After noting that there was no stipulation as to the intoxication, the 

district court ruled:

If the Court—I don’t really like to do limiting instructions but if the 

defense has asked for an instruction of only what they can consider 

it for, I would be happy to factor some jury instruction that they can 

only consider it to determine if she was under the influence. But at 

this time I do not believe that if [the jury] hear[s] that statement it 

would unfairly prejudice the defendant because I do believe it is 

needed for the jury to make a determination as to if Ms. Curtis was 

under the influence of alcohol. 

So at this time I am going to overrule Defendant’s motion in 

limine . . . I will allow the State to play the video with the statements 

and the defense can talk about if they would like some instruction 

prior, when we do instructions, to state that it is only to be used for 

determining if a person is under the influence. 

(Emphasis added.)

In her opening statement, Curtis conceded her intoxication and indicated

she was only contesting that she was the one driving. Over no objections, the jury 
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heard the video evidence, including the sections with Curtis’s racial slurs. As for 

the instructions to the jury, Curtis requested no limiting instruction to address its 

use of the evidence containing the racial slurs. After deliberations, the jury 

returned a guilty verdict against Curtis. She filed a motion for a new trial, arguing 

the video evidence should not have been shown to the jury; the district court denied 

the motion. Curtis appeals that ruling, but first we determine if Curtis preserved 

error on the admission of the video evidence.

II. Error Preservation.

The State argues Curtis did not preserve error because she did not lodge 

an objection contemporaneous to the evidence’s introduction. Our supreme court 

recently explained that:

Generally, denial of a motion in limine does not preserve error 

for appellate review. Motions in limine are procedural rulings that 

“serve[] the useful purpose of raising and pointing out before trial 

certain evidentiary rulings the court may be called upon to make 

during the course of the trial.” If denied, the resisting party must 

object at the time the evidence is offered at trial to preserve a 

challenge to the evidence on appeal. If sustained, the ruling 

“excludes reference or introduction of this evidence until its 

admissibility is determined by the trial court, outside the presence of 

a jury, in an offer of proof.” Error arises when the evidence is 

introduced at trial, not from ruling on the motion in limine.

As with most rules, there is an exception. “[I]f the ruling [on 

the motion in limine] 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.”

State v. Thoren, 970 N.W.2d 611, 620–21 (Iowa 2022) (alterations in original) 

(citations omitted). Here, given the context of the district court’s ruling, the answer 

comes down to whether the ruling was a final ruling that reached the ultimate issue 

and declared the evidence admissible. See State v. Alberts, 722 N.W.2d 402, 406 

(Iowa 2006). So, 
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where a motion in limine is resolved in such a way it is beyond 

question whether or not the challenged evidence will be admitted 

during trial, there is no reason to voice objection at such time during 

trial. In such a situation, the decision on the motion has the effect of 

a ruling. 

State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975). Put another way, was it 

necessary to take the additional “procedural step [an objection and ruling] to the 

introduction of allegedly objectionable evidence”? Quad City Bank & Tr. v. Jim

Kircher & Assocs., P.C., 804 N.W.2d 83, 89–91 (Iowa 2011). 

Advocating that Curtis had to object to the videos, the State points to the 

district court’s use of the phrase “at this time” to show it was not a final ruling. True, 

at the motion stage, the district court determined the evidence was coming in and 

even suggested the possibility of a limiting instruction for the jury. See Alberts, 

722 N.W.2d at 407 (noting “the plain language of the court’s ruling—‘I’m not going 

to permit testimony or evidence concerning [R.M.’s] mental health or past sexual 

comments or activities’—rings of a final ruling” even when “the district court did not 

specifically state the evidence was ‘inadmissible’”). But the use of the term “at this 

time” suggests that there might have come a time during the trial where the ruling 

could be reconsidered. See Quad City Bank, 804 N.W.2d at 90–91 (finding a 

motion-in-limine ruling was final when “[t]he court did not equivocate or state it 

would reconsider its ruling at trial”); State v. Bassett, No. 21-0923, 2022 WL 

16630788, at *8 (Iowa Ct. App. Nov. 2, 2022) (“[T]he court concludes by merely 

noting, ‘[T]he Court will not grant the motion in limine at this time as to any such 

evidence. Rather, the Court will treat the motion in limine as a cautionary 

statement.’ The court’s apparent final ruling on the motion in limine would 

ordinarily preserve Bassett’s claims for appeal despite the lack of objections at 
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trial.”); State v. Debettignies, No. 18-2061, 2019 WL 5790900, at *1 (Iowa Ct. App. 

Nov. 6, 2019) (finding the ruling not final because “during the motion in limine 

hearing, the court said that, ‘at this point,’ the evidence is ‘going to be excluded 

from the trial.’ But the court also said, ‘Maybe there’ll be additional 

information . . . that will come in during the trial that would cause me to reevaluate 

the relevance of this evidence.’”).

This case falls somewhere in between the cases where it is clear that the 

limine ruling is final and those where the district court might rule differently given 

the evidence during the trial. Compare Wailes v. Hy-Vee, Inc., 861 N.W.2d 262, 

264 (Iowa Ct. App. 2014) (holding error was not preserved as the court did not 

issue a final ruling and there was no objection made to the evidence), with State

v. Daly, 623 N.W.2d 799, 800 (Iowa 2001) (reiterating that after the district court 

confirmed at the motion stage that the ruling was final there was no question the 

issue was resolved, so no objection at trial was required to preserve error). We 

endorse the following guidance: 

The best practice is to avoid speculation on whether a particular 

ruling will be viewed as a final, unequivocal one. If possible to do so 

without prejudicing the client, counsel in most cases should renew 

the objection at trial. Otherwise, counsel should inquire of the court 

whether its ruling in limine is final and unequivocal. Unless the 

response is a positive one, failure to object and obtain a ruling during 

trial may constitute a waiver.

4A B. John Burns, Iowa Practice Series: Criminal Procedure § 10:3(h) (2022)

(footnotes omitted). So, returning to the issue here, we note the words of the 

district court must be given due consideration to evaluate the unequivocal intent of 

the ruling. “At this time,” used twice by the district court in reference to the ruling 

on the motion in limine, must have some meaning. Because that language can 
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mean the ruling could be reconsidered at a later time during the trial, the ruling was 

not unequivocal. No one asked the district court what those references meant nor 

if the ruling was indeed final. See James v. Miller, No. 07-1098, 2008 WL 2522119,

at *2 (Iowa Ct. App. June 25, 2008) (finding that the court’s repeated phrases 

excluding evidence “at this point” indicate that the court’s ruling was not final as 

the court noted it still had to review the documents). Thus, Curtis had to object to 

the evidence at trial and make any arguments that supported her theory of 

exclusion. Error was not preserved. 

Even so, because we review evidentiary rulings for an abuse of discretion, 

on this record we would not find the district court abused its discretion. See 

Thoren, 970 N.W.2d at 620. “A district court abuses its discretion when it bases 

its decisions on grounds or reasons clearly untenable or to an extent that is clearly 

unreasonable . . . [or] if it bases its conclusions on an erroneous application of the 

law.” Id. (alteration in original) (citation omitted). “[Iowa Rule of Evidence] 5.403 

allows a court to exclude ‘relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice.’” State v. Lacey, 968 N.W.2d 792, 

807 (Iowa 2021). “‘Unfair prejudice’ is the ‘undue tendency to suggest decisions 

on an improper basis, commonly though not necessarily, an emotional one.’” State 

v. Huston, 825 N.W.2d 531, 537 (Iowa 2013) (citation omitted). We follow a twopart test to determine if evidence should be excluded under this rule: “First, we 

consider the probative value of the evidence. Second, we balance the probative 

value against the danger of its prejudicial or wrongful effect upon the triers of fact.” 

State v. Einfeldt, 914 N.W.2d 773, 784 (Iowa 2018). “Because the weighing of 

probative value against probable prejudice is not an exact science, we give a great 
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deal of leeway to the trial judge who must make this judgment call.” State v. 

Newell, 710 N.W.2d 6, 20–21 (Iowa 2006). 

As the case was submitted, the jury had to determine if Curtis was 

intoxicated. And we agree with the district court that Curtis’s rantings during her 

arrest was probative of Curtis’s intoxication3 because, as the court put it, the State 

had to show Curtis was intoxicated by “show[ing] that her reason or mental ability 

ha[d] been affected, her judgment was impaired, and her emotions [were] visibly 

excited.” While Curtis regrets what she said and argues the jury would be inflamed 

by her language, her demeanor and lack of judgment provides evidence indicative 

of intoxication, just as slurred speech, vomiting, and her general belligerence might 

support that element of proof. 

Our rules against unfair evidence recognize that evidence which “appeals 

to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, 

or triggers other mainsprings of human action may cause a jury to base its decision 

on something other than the established propositions in the case.” State v. Plaster, 

424 N.W.2d 226, 231 (Iowa 1988). This is charged language, which both parties 

agree is “uniquely vicious” and likely to elicit an emotional response. But the 

behavior of intoxicated persons often fit that category. Here, the district court made 

a judgment call as is its role, and we do not find it abused its discretion. See id. at 

232 (noting the district court made the judgment call which “calls for a large 

measure of individual judgment about the relative gravity of the imponderables.”).

3 While the State argued at trial that it was also relevant to her credibility, the district 

court ruled only that the evidence was relevant to her intoxication. The State does 

not further the credibility argument on appeal.
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III. Conclusion.

Because Curtis failed to preserve error on the admissibility of the evidence 

she seeks to challenge on appeal, we affirm the conviction.

AFFIRMED.