author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Lincoln Duane BELKEN, Appellant.
    No. 99-2001.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and Edward Bjornstad, County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CADY, Justice.

The primary issues we confront in this appeal from a judgment and sentence for kidnapping and sexual abuse is whether the district court erred at trial in admitting rebuttal evidence that an investigating officer failed to disclose to the defendant during a deposition, and in admitting evidence of a DNA match between the defendant’s DNA and the crime-scene DNA together with a random match probability of one in 431 billion. The court of appeals determined the district court abused its discretion in admitting the rebuttal testimony and reversed the conviction after concluding the evidence was highly prejudicial to the defendant. On our review, we vacate the decision of the court of appeals and affirm the decision of the district court as modified in this opinion.

I. Background Facts and Proceedings.

On July 3, 1998, Tanya Ross accompanied several girlfriends to the Lake Okobo-ji area to celebrate the Independence Day holiday. This was Tanya’s first visit to the Okoboji area, and she was unfamiliar with her surroundings. The girls checked into a motel located on the east side of West Okoboji called “The Inn” at approximately 6:00 p.m. The college-aged girls took turns in the bathroom getting ready to go out for the evening. They also began to consume alcoholic beverages, and other girls began to arrive at the motel room. Tanya consumed a couple of alcoholic beverages while at the motel.

Eventually, everyone left the motel room to go to Arnold’s Park, an amusement park located on the south side of West Okoboji. The group of girls left in two cars. However, Tanya somehow was left behind.

After waiting, to no avail, for her friends to return to the motel, Tanya decided to walk to Arnold’s Park. At approximately 11:00 or 11:30 p.m., Tanya started walking in the direction where she believed Arnold’s Park was located. Tanya had been walking for about fifteen minutes when a young man stopped and offered her a ride into town. The man appeared “harmless to her,” so she accepted the ride. They engaged in a brief conversation. The man asked for her name and where she lived. Although Tanya did not ask the man for his name, he did tell her he was from Okoboji.

When they reached what appeared to be the town, Tanya requested to be dropped off. Instead of letting Tanya out of the car, the man accelerated speed and locked the doors with the automatic power locks. After parking in a wooded area near a lake, the man obtained a gun from the trunk, and threatened to kill Tanya if she attempted to leave. The man then raped Tanya at gunpoint. When the man completed the sex act, he left Tanya in the woods by herself.

Tanya then started walking down the road in search of help. After she had been walking for some time, a man named Heath Richter passed by and offered her assistance. As Heath was driving Tanya to the police department, he saw Officer Dan Schaffer. Officer Schaffer interviewed Tanya and called her an ambulance. These events took place at approximately 12:50 a.m. At. the hospital, medical personnel examined Tanya and obtained evidence for subsequent deoxyribonucleic acid (DNA) analysis.

Tanya provided investigators detailed descriptions of the assailant, the car, and the gun. She described the assailant as a white male, approximately twenty-one years old, thin build, short — approximately 5' 8", light brown hair, clean-shaven, a little acne, wearing gold-framed eyeglasses. He was wearing a green t-shirt on the night of the assault. Tanya described the car as a white four-door mid-1990’s model with red interior and automatic door locks. She believed the gun was a semiautomatic with a blue or dark-colored finish.

On August 18, 1998, Tanya identified Lincoln Belken from a photographic array as the assailant. The photograph of Belken matched the detailed description Tanya had provided to the authorities. On a previous date, Tanya had viewed a photographic array that did not include Belken for one hour and was unable to find the assailant. However, Tanya’s identification of Belken on August 18 was instantaneous. Tanya subsequently identified Belken’s white Achieva from a photograph as the car driven by the assailant on July 3.

A search warrant was executed at Belken’s parents’ residence in Spirit Lake, where he was residing at the time of the assault. A gun resembling the one described by Tanya was seized and later identified by Tanya. Several green t-shirts were also seized. Based on the positive identifications and the items seized, Belken was charged with first-degree kidnapping and second-degree sexual abuse.

On May 8, 1999, Tanya believed she saw Belken at her place of employment in Fort Dodge, Iowa. Tanya had been working as a bartender at Applebee’s restaurant all day until 10:00 p.m. The young man she believed to be Belken was wearing a baseball cap low on his head. Tanya also claimed she saw a white Achieva in the parking lot when she left Applebee’s at 10:30 p.m. However, at a bond review hearing held a few days later, Belken presented evidence in the form of receipts, canceled checks, and witnesses that on May 8 he was in Sioux Falls, South Dakota, with his wife and daughter.

Belken filed a pretrial motion requesting the State to produce all written or oral statements made by anyone interviewed by the State during the investigation of the July 3 assault. The district court granted the motion, and ordered the State to produce all statements taken by its investigating officers. The district court also granted Belken’s request for additional money for a private investigator to obtain voluntary statements from witnesses not listed in the minutes of testimony.

Trial commenced on November 17, 1999. State witnesses included Terry Klooster, an Iowa Department of Criminal Investigation (DCI) agent, and Thomas Loebach, a deputy police officer. Both of these officers were involved in the investigation of Tanya’s assault.

The State also introduced expert testimony of the DNA analyses performed on seminal fluid found on the undergarments worn by Tanya on July 3 and DNA samples obtained from Tanya and Belken. Maria Sides, a DCI criminalist in the state DNA analysis laboratory, testified Belken was a potential donor of the seminal fluid found on Tanya’s undergarments, as were one in 1000 Caucasians. The method used by Sides to analyze the DNA is known as polymerase chain reaction (PCR), and Sides used a 310 analyzer manufactured by Perkin-Elmer to conduct her analysis. The kit provided by the manufacturer permitted Sides to use six genetic sites in analyzing the DNA. The manufacturer also provided a data base to assist in generating the random match probability of one in 1000 Caucasians. Sides limited the probability match to Caucasians because Belken is Caucasian.

Jami Harman, the scientific director of a private forensic paternity and DNA testing laboratory in St. Louis, Missouri, named Genetic Technologies, Inc., was the State’s other expert witness. The district court denied Belken’s motion to exclude Har-man’s testimony, finding she was qualified to testify as an expert witness. Harman detailed her experiences and education in DNA testing and the process she conducted in analyzing the DNA and reaching the statistical probabilities in this specific case. Like Sides, Harman used a 310 analyzer manufactured by Perkin-Elmer, and relied on the data base provided by the manufacturer to obtain a random match probability. However, Harman used a profiler kit that permitted her to look at nine genetic sites. Harman concluded the DNA from the seminal fluid found on Tanya’s undergarments matched Belken’s genetic profile. Harman further testified that the probability that another Caucasian would match Belken’s genetic profile was one in approximately 431 billion Caucasians.

Belken presented an alibi defense. Defense witnesses testified Belken was in a boat on the lake with his wife (then-fian-cée) Jennifer, his parents Barry and Kari Belken, and his relatives Peter, Vickie, Rachaelle, and Aaron Larsen, to watch the fireworks display on the evening of July 3, 1998. The boat ride ended around 10:30 p.m., and Belken, Jennifer, and Aaron then went to the Belken residence in Spirit Lake. The other occupants of the boat arrived at the residence between midnight and 1:00 a.m. Belken was taking a shower at the residence at the time.

The only alibi witness that accounted for Belken’s whereabouts during the period of time when the assault occurred was Jennifer. Aaron did not testify at the trial. Jennifer testified that after she, Belken, and Aaron left the boat landing, Belken and Aaron went to the restroom at the park, and they then drove directly to Belken’s parents’ home, which was located five miles from the park.

The State attempted to discredit Jennifer’s testimony with its theory that Jennifer was providing false testimony to protect her husband. On cross-examination, Jennifer admitted she and Belken had an argument on July 3, but denied the State’s suggestion that the reason for the argument was Belken’s desire to go to Arnold’s Park that evening instead of on the boat with his family. Jennifer also refuted the State’s assertion that the argument resumed when they reached Belken’s parents’ home and that Belken subsequently left her alone for a period of time. In addition, Jennifer denied telling Wanda Garloff, her former manager at Dairy Queen, in September 1998 that she was uncertain whether Belken had not committed the offense.

The State proffered the rebuttal testimony of Wanda Garloff to impeach the statements made by Jennifer the preceding day at trial. Because the State had not previously disclosed Garloffs testimony, the court granted Belken’s request to interrogate Garloff before the presentation of her testimony to the jury. Garloff stated that sometime around September 1998 Jennifer told her she was not sure whether Belken did or did not commit the assault against Tanya. Garloff further stated she informed Thomas Loebach of the conversation with Jennifer approximately three times, and that Terry Klooster was present on one of those occasions. Garloff testified she last talked to Loebach only one month prior to trial.

Belken moved to exclude Garloffs testimony as impeachment on a collateral issue and, alternatively, as a sanction for the State’s failure to disclose Garloffs testimony. Neither Loebach nor Klooster mentioned Garloffs statements during their depositions. In explaining its lack of compliance, the county attorney asserted he only learned of Garloffs specific testimony two days earlier as he was preparing for the rebuttal portion of the trial. The court subsequently overruled Belken’s motion to exclude.

Although the State was permitted to present Garloff as a rebuttal witness, the testimony derived from Garloff on direct examination was confusing.

Q. Did Jennifer Belken tell you she was not certain that Lincoln Belken had not committed that acts? [sic]
A. Yes, she was.

Neither the State nor Belken attempted to clear up Garloffs ambiguous response through further questions. However, during closing arguments, the State twice mentioned Garloffs testimony as a factor to consider in judging Jennifer’s credibility. Belken did not object nor did he address these statements during his closing argument.

The jury returned guilty verdicts on both counts. The district court subsequently entered judgment and sentence on both the first-degree kidnapping charge and the second-degree sexual abuse charge.

Belken appealed. He argued the district court erred in entering judgment and sentence on the second-degree sexual abuse charge as that offense merged with the first-degree kidnapping conviction. He also contended the district court erroneously admitted Harman’s expert testimony and Garloffs rebuttal testimony. We transferred the case to the court of appeals, which reversed and remanded for a new trial, finding the district court should have excluded Garloffs testimony as a discovery sanction.

The State appealed, and we granted further review. The State alleges the district court did not abuse its discretion in admitting Garloffs testimony, and even if there was an abuse of discretion, the error did not prejudice Belken.

II. Scope of Review.

We review rulings on general evi-dentiary issues and the admissibility of expert testimony for an abuse of discretion. See State v. Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (expert testimony); State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997) (evidentiary issues). Likewise, we review the imposition of sanctions for discovery abuses for an abuse of discretion. See State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981).

We review alleged violations of the merger doctrine under Iowa Code section 701.9 (1997) for errors at law. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). Additionally, we review ineffective assistance of counsel claims de novo. State v. DeCamp, 622 N.W.2d 290, 292 (Iowa 2001).

III. Rebuttal Testimony.

A. Impeachment on Collateral Issue.

Belken first argues the trial court should have excluded Garloffs rebuttal testimony as impeachment evidence on a collateral issue. Generally, the State may impeach a defense witness by introducing out-of-court oral statements inconsistent with the testimony presented by the witness at trial. Iowa R. Evid. 613; see 7 James A. Adams & Joseph P. Weeg, Iowa Practice § 613.1, at 475 (1998) [hereinafter Iowa Practice]. In doing so, the State may use the impeachment evidence only for the purpose of undermining the witness’ credibility, and not as substantive evidence. 7 Iowa Practice § 613.1, at 476; 88 C.J.S. Trial § 89, at 197 (1955). Furthermore, impeachment evidence is admissible only if it addresses a non-collateral issue. State v. Odem, 322 N.W.2d 43, 45 (Iowa 1982). Impeachment evidence is non-collateral if its contents are admissible for any purpose independent of the contradiction. State v. Roth, 403 N.W.2d 762, 767 (Iowa 1987); Odem, 322 N.W.2d at 46; 7 Iowa Practice § 607.4, at 412, § 613.2, at 482.

We have identified two categories of independently admissible impeachment evidence. See Roth, 403 N.W.2d at 767; State v. Blackford, 335 N.W.2d 173, 176 (Iowa 1983). The evidence is either relevant to resolving an issue material to the case, or it pertains to the general credibility of the witness. Id.; 7 Iowa Practice § 613.2, at 482-83. We conclude the impeachment evidence introduced in this case involved a non-collateral issue and, consequently, was independently admissible. In addition to contradicting Jennifer’s statements on cross-examination, Garloffs testimony undermined Jennifer’s credibility. Additionally, Belken’s whereabouts during the time frame in which the assault occurred was a material issue, and Garloffs testimony concerned Belken’s alibi defense. See Odem, 322 N.W.2d at 46 (defendant’s whereabouts at time of crime material); see also State v. Hilleshiem, 305 N.W.2d 710, 714 (Iowa 1981) (relationship between defendant and deceased child material). Thus, Garloffs testimony was permissible impeachment evidence.

B. Exclusion Based on Nondisclosure.

The request to exclude Garloffs testimony was predicated on the failure of an investigating officer to disclose the complete contents of his unrecorded interview with her during his pretrial deposition. Generally, discovery sanctions are predicated on the violation of an order or rule requiring discovery. See 23 Am.Jur.2d Depositions and Discovery § 373, at 647-48 (1983). In this case, however, the discovery order required the State to produce statements by witnesses obtained by the State, and any reports or narratives by investigators which contained statements of witnesses. The statement at issue on appeal was never recorded or reduced to writing and was not included in any written report. Typically, a statement must be recorded in some manner to be discoverable under an order requiring the production of a statement. See United States v. McClure, 734 F.2d 484, 493 (10th Cir. 1984). Thus, the statement that the investigating officer failed to disclose in his deposition was not within the parameters of the pretrial discovery order in this case. The basis for Belken’s request to preclude testimony came from the failure to disclose information in a deposition.

The defendant in a criminal case is permitted to depose witnesses listed by the State on the trial information in the same manner and effect as in civil cases, except as otherwise limited by rule or statute. Iowa R.Crim. P. 12(1). The State is required to name each witness in the trial information who is expected to testify at trial, as well as the contents of their testimony. Iowa R.Crim. P. 5(3). Rebuttal witnesses, however, are not required to be disclosed by the State. See Iowa R.Crim. P. 18(3). The State is not precluded from calling witnesses to rebut testimony presented by a defendant when it fails to endorse the name of the witness on the trial information. State v. Nelson, 261 Iowa 204, 208, 153 N.W.2d 711, 714 (1967).

Our Iowa Rules of Civil Procedure define the uses for depositions. Iowa R. Civ. P. 144. Depositions may be used at a trial or a hearing, when admissible under the rules of evidence, for a variety of purposes enumerated in the rule. Id. Yet, the rule does not contemplate the use of depositions for discovery, although a deposition is commonly viewed as a discovery tool. See Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 897 (Iowa 1980). While our rules of discovery are broader, we recognize that the federal rules of criminal procedure generally do not utilize depositions as a discovery device. United States v. Edwards, 69 F.3d 419, 437 (10th Cir.1995). Instead, a defendant may only depose a government witness to preserve testimony. Fed.R.Crim.P. 15(a); United States v. Cutler, 806 F.2d 933, 935-36 (9th Cir.1986). A deposition may, of course, always be used to contradict or impeach the deponent as a witness. Iowa R. Civ. P. 144(a). Yet, it does not replace a discovery order for purposes of sanctions for nondisclosure.

In this case, Belken claims he was denied a fair trial because the State impeached an alibi witness with testimony presented on rebuttal which an investigating officer failed to disclose in his pretrial deposition. Thus, Belken attempts to use the deposition of the investigating officer as a discovery device to pin sanctions on the State. However, there was no record made to support a finding of misconduct or bad faith on the part of the prosecutor or the investigating officer. See State v. Dye, 371 N.W.2d 47, 50 (Minn.Ct.App.1985) (court considered whether violation was intentional); State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689, 692 (1983) (same). The investigating officer never explained the reason he failed to disclose the disputed statement during the course of his deposition or the reason he failed to reduce the statement to writing in a report. The county attorney only learned of the statement during the course of the trial, and only after he personally spoke with Garloff in preparation for her rebuttal testimony. Moreover, the questions propounded to the investigating officer during the deposition concerning his investigation of Garloff were broad and open-ended. Defense counsel simply asked the officer to recall everything the witness told him. There was no effort to specify the requested information by asking the officer if Garloff said anything to him that would rebut an alibi defense. Broad, open-ended discovery requests make it difficult to assess whether or not nondisclosure occurred or whether it was done in bad faith. Reid v. State, 267 Ind. 555, 562, 372 N.E,2d 1149, 1153 (1978).

Nevertheless, the State does not dispute the need for disclosure of the disputed testimony. Instead, the State asserts the district court properly denied the request to exclude the rebuttal testimony because no prejudice resulted to Belken.

In reviewing the decision of the trial court to admit Garloffs rebuttal testimony, we reverse only if Belken was substantially prejudiced by the evidence. State v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); Gates, 306 N.W.2d at 725. Generally, we defer to the trial court on discovery matters, absent an abuse of discretion, because the trial court is in the best position to determine whether prejudice resulted. See Gates, 306 N.W.2d at 725.

In determining whether to exclude evidence as a sanction for the nondisclosure of evidence in the course of pretrial discovery, trial courts typically consider a myriad of factors. These factors include the reason for the nondisclosure, any resulting prejudice, the ability to cure any prejudice short of exclusion, and any other relevant circumstances. See State v. Veal, 564 N.W.2d 797, 811 (Iowa 1997), overruled on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998).

We have previously observed that the circumstances of the failure to disclose the disputed rebuttal evidence are limited to the contents of the deposition itself and the prosecutor’s statement that he was not aware of the statement until trial. These circumstances do not necessarily support the sanction of exclusion. Thus, we turn to the prejudice prong of the analysis. Belken claims the undisclosed rebuttal evidence undermined his entire alibi defense because the State was able to impeach his main alibi witness, and he would not have called Jennifer if he knew the State would have been able to impeach her.

In examining the presence of prejudice, we observe that the disputed testimony was offered by the State at trial only for impeachment, not as substantive evidence of the crime. Generally, the risk of prejudice from a discovery violation is reduced when the only value of the evidence is for impeachment. Veal, 564 N.W.2d at 811. Additionally, the actual testimony presented in rebuttal was extremely ambiguous. See State v. Love, 302 N.W.2d 115, 120-21 (Iowa 1981). By itself, it offered the jury little impeachment value.

Nevertheless, we must examine the claim of prejudice in the context of its effect on Belken’s trial strategy. Undisclosed evidence that likely would have caused a defendant to materially alter the trial strategy if it had been known is more likely to be prejudicial than undisclosed evidence that was merely cumulative. John E. Theuman, Annotation, Exclusion of Evidence in State Criminal Action for Failure of Prosecution to Comply With Discovery Requirements as to Statements Made by Defendants or Other Nonexpert Witnesses — Modem Cases, 33 A.L.R.4th 301, 307-08 (1984). Yet, we must also keep in mind that the undisclosed statement was offered to rebut, disprove, or contradict the alibi defense evidence offered by the defendant. Thus, it is helpful to analyze the existence of prejudice from the perspective of the contradictive nature of the testimony.

Garloffs rebuttal testimony contradicted Jennifer’s alibi testimony. Yet, if Jennifer’s alibi testimony was truthful, advance knowledge of Garloffs impeachment testimony would have only enabled Belken to investigate Garloff to expose her untruthfulness or to find a reason for the contradiction. See Reid, 267 Ind. at 566, 372 N.E.2d at 1155. Additionally, it would have permitted Jennifer to fully explain the inconsistent statement testified to by Garloff. See id. However, in either event, a continuance in the trial would have given Belken the same opportunities. Id. A continuance, however, was never requested by Belken. See Sparks v. State, 271 Ind. 419, 420, 393 N.E.2d 151, 153 (1979) (normal remedy is to move for continuance). Moreover, the court had provided Belken with an opportunity to interview Garloff. See Nelson v. State, 440 So.2d 1130, 1133 (Ala.Crim.App.1983). If, after the interview, Belken believed he needed more time, he could have moved for a continuance. See id.

On the other hand, if Jennifer’s alibi testimony was untruthful, advance knowledge of Garloffs testimony may very well have caused Belken not to call Jennifer as a witness. See United States v. Jefferson, 445 F.2d 247, 250 (D.C.Cir.1971); Reid, 267 Ind. at 566, 372 N.E.2d at 1155. Yet, if Jennifer’s alibi was untruthful, Belken necessarily would have known she was providing a false alibi by testifying she was with him at all relevant times. See Jefferson, 445 F.2d at 250. If that was the situation, the prejudice Belken now complains of did not come from the failure of the investigating officer to disclose the existence of the inconsistent statement, but Jennifer’s own failure to disclose to Belken that she made a prior inconsistent statement. Reid, 267 Ind. at 566, 372 N.E.2d at 1155; Dye, 371 N.W.2d at 50. Belken was simply trapped by the failure of his own witness to warn him of the existence of a previous conflicting statement, and the damage to his defense at trial resulted from his own decision to offer a false alibi. Reid, 267 Ind. at 566, 372 N.E.2d at 1155.

In this light, the only real prejudice that could result to Belken was if the alibi evidence was false. Yet, no defendant should be protected from that type of prejudice. The prejudice which courts guard against could have been alleviated by a continuance. See id. We conclude the court properly acted within its discretion in admitting the rebuttal testimony.

Even if the trial court had erred in admitting the rebuttal evidence, we conclude any error would have been harmless. See State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998). Ordinarily, when the State’s evidence of guilt is overwhelming, we deem a trial error to be harmless. Id.; State v. Rice, 543 N.W.2d 884, 887-88 (Iowa 1996).

We conclude there was overwhelming evidence of Belken’s guilt introduced by the State in its case-in-chief. Two independent tests matched Belken’s DNA to the DNA from the seminal fluid found in Tanya’s undergarments. Moreover, the probable frequency that a person other than Belken would match the crime-scene DNA was astronomical. Additionally, Tanya positively identified Belken as the assailant and the car he drove as well as his clothing and the gun he used.

IV. Expert DNA Testimony.

A. Background.

We have previously examined the nature of DNA and the scientific principles that permit it to be used for forensic identification. See State v. Williams, 574 N.W.2d 293, 297 (Iowa 1998); State v. Brown, 470 N.W.2d 30, 31 (Iowa 1991). Clearly, DNA analysis has gained widespread acceptance since it was first introduced to the field of law enforcement sixteen years ago. See Edward J. Imwinkelried & D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 76 Wash. L.Rev. 413, 413-14 (2001). Today, the initial controversy over the scientific validity of forensic DNA testing has largely disappeared, and the courtroom disputes are now typically limited to issues of criminal procedure and evidence. Id.

The methods of analyzing DNA have also advanced over the years. Today, the PCR method has emerged as the predominate method of DNA typing. See id. at 457. It is based on scientific principles and methods that are accepted in both forensic and non-forensic settings, United States v. Shea, 957 F.Supp. 331, 338 (D.N.H.1997), and allows many DNA polymorphisms, or variables, to be quickly and unambiguously analyzed. Imwinkelried & Kaye, 76 Wash. L.Rev. at 457. Courts have readily approved the admission of expert testimony based on PCR analysis. See Shea, 957 F.Supp. at 338-39 & n. 20; Imwinkelried & Kaye, 76 Wash. L.Rev. at 457-58.

The PCR method of typing has two components, amplification and allele identification. Shea, 957 F.Supp. at 333. Amplification is the “process of making many copies [of] selected portions of a DNA sample,” which permits the amplified alleles, or the arrangement of base pairs at a polymorphic site, to be identified. Id. at 334. Once a DNA sample is amplified, the polymorphic sites can then be typed and identified. Id.

The DNA analysis at the studied sites allows laboratories to determine if a suspect’s DNA matches the crime-scene DNA. See Imwinkelried & Kaye, 76 Wash. L.Rev. at 416. A match between the two samples tends to incriminate the suspect, while a non-match normally excludes the suspect as a source of the DNA left at the crime site. Id.

DNA analysis in criminal cases does not end with the matching of a crime-scene DNA profile with a suspect’s DNA. To put the significance of a match into perspective, prosecutors also offer evidence about the probability of finding two matching profiles. This is called random match probability, which represents the expected frequency of another human matching the same DNA profile in a relevant population class. Shea, 957 F.Supp. at 335.

The process of calculating a random match probability involves several principles of genetics and statistics, and utilizes a data base of DNA samples. See id. at 335-37. These principles and statistical methods are widely accepted as valid, and questions about the reliability of random match probability have generally concerned the size and selection of the data base. See Imwinkelried & Kaye, 76 Wash. L.Rev. at 456-57. Data bases of DNA samples are used because it is not practical to test the entire population to determine whether an actual match exists. However, it is always possible for error to occur by chance when a data base does not contain the entire population being studied, and adjustments are then made to account for the possibility of random error. See Shea, 957 F.Supp. at 341-43. The statistical methods to support the random match probability are generally accepted by scientists and experts in the field. See id.

The process of PCR amplification and identification can be largely automated, which has contributed to the creation of improved data bases in recent years. David H. Kaye, Symposium, Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General, 40 Jurisme-trics J. 193, 202 & n. 35 (2000). PCR-based tests also make it easier to examine more loci, which generally yields a more discriminate random match probability. Id. at 203 n. 38.

B. Objections to DNA Testimony.

Belken does not challenge the validity of the testing methods used by Harman or the science to support the testing results. Instead, he claims Harman was not qualified to present her testimony. Belken asserts she lacked sufficient education and experience, her laboratory was not accredited, and she failed to provide any statistical foundation for her random match probability opinion.

1. Qualifications.

Like all expert testimony, the admissibility of DNA evidence must satisfy our accepted standards for admission of expert testimony. Yet, we have traditionally adhered to a liberal rule when reviewing claims concerning the admissibility of expert testimony. Mensink v. Am. Grain, 564 N.W.2d 376, 379 (Iowa 1997); State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994); Cook v. State, 476 N.W.2d 617, 620 (Iowa 1991). As a general rule, we permit expert testimony if it consists of specialized knowledge that will aid the jury in understanding the evidence or in deciding a material issue. Iowa R. Evid. 702; lowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 827 (Iowa 1993); Broim, 470 N.W.2d at 32. We have previously found expert testimony explaining DNA evidence to be quite helpful to the trier of fact. See Williams, 574 N.W.2d at 297-98; Brown, 470 N.W.2d at 31-33. Additionally, the witness through whom the testimony will be offered must be sufficiently qualified as an expert in that particular field. Iowa R. Evid. 702. We afford the trial court wide latitude in its rulings on the admissibility of expert testimony, and reverse only if the court abused its discretion and the defendant was prejudiced. Buller, 517 N.W.2d at 713; Brown, 470 N.W.2d at 32.

Any special “knowledge, skill, experience, training, or education” can qualify a witness as an expert. Iowa R. Evid. 702. However, no precise rule governs how a witness may acquire the requisite qualifications. 32 C.J.S. Evidence § 525, at 329 (1996). The witness need not be considered a specialist in the particular field as long as the testimony is within the general area of expertise. Hunter v. Bd. of Trs. of Broadlawns Med. Ctr., 481 N.W.2d 510, 519 (Iowa 1992); DeBurkarte v. Louvar, 393 N.W.2d 131, 138 (Iowa 1986). Furthermore, the witness need not possess a particular license, certification, or educational degree. See 7 Iowa Practice § 702.3, at 520; 32 C.J.S. Evidence § 524, at 327, § 525, at 329-30. On the contrary, witnesses may acquire expert knowledge through practical experience and training, as well as through formal education. DeBurkarte, 393 N.W.2d at 138; see Buller, 517 N.W.2d at 714.

We conclude the trial court did not abuse its discretion in admitting Har-man’s testimony regarding the DNA analysis she performed for this case. Although Harman did not obtain a special license or graduate degree, she received a bachelor’s of science degree from the University of Missouri and took graduate courses focusing on DNA and statistical analysis from the Federal Bureau of Investigation Academy. Moreover, Harman received ongoing training in the field of serology, studying blood and body fluids, while employed as a forensic scientist by the St. Louis County Police Department for thirteen years. In addition, Harman attended numerous intensive seminars at a variety of institutions throughout the country involving DNA typing. Harman had been testing DNA samples for five years before she and her husband formed their own DNA testing laboratory in 1998. The evidence also reveals that Harman used a 310 genetic analyzer manufactured by Per-kin-Elmer and received extensive training from the manufacturer on the use of the analyzer. Furthermore, Harman has engaged in proficiency testing five times a year by the American College of Pathologists. She has never failed any of the tests.

Considering Harman’s education, training, and experience, we conclude she was sufficiently qualified to testify as an expert witness in this case. See Buller, 517 N.W.2d at 714 (years of experience and training with dog qualified dog handler as expert witness regarding dog’s reactions); Iowar-Illinois Gas & Elec. Co., 497 N.W.2d at 827-28 (extensive experience sufficient). Additionally, we do not believe the State was required to show Harman’s laboratory was certified in order to independently establish she was competent to apply and use the DNA technology. The standards for admission of expert testimony relate to the ability of the analytical method to produce accurate results when properly applied. See Shea, 957 F.Supp. at 340-41. They do not necessarily relate to the skill of the particular individual using the analytical method. Id. at 340. The ability of an expert to perform the accepted method typically affects the weight of the evidence, not its admissibility. Id. at 341.

2. Random Match Probability.

Statistical analysis is important in DNA profiling, but the basis for the average match probability is based upon methods of computation that are readily accepted in the field and have been adopted by the National Academy of Sciences. See Imwinkelried & Kaye, 76 Wash. L.Rev. at 456. Computer programs are used by DNA profilers to make the calculations based on the information they have attained from their analysis, which are accepted and relied upon in the field of DNA profiling. See Shea, 957 F.Supp. at 341. In this case, Harman utilized nine STR loci to arrive at her random match probability of one in 431 billion Caucasians.

Although Harman is not a specialist in statistics, she has had significant training and experience in using statistical analysis in DNA profiling. See Mercy Hosp. v. Hansen, Lind & Meyer, P.C., 456 N.W.2d 666, 671 (Iowa 1990) (considering witness’ experience and other education, he need not be an accountant to render an expert opinion on the computation of hospital profits); see also 7 Iowa Practice § 702.3, at 522. Furthermore, we find Harman adequately detailed at trial the statistical process used in reaching her conclusion that Belken’s genetic profile could be found in only one in 431 billion Caucasians. In explaining how she calculated her conclusions, Harman explained the number of loci tested, the variations per locus, and the alleles frequency. She was also generally familiar with the mathematical and genetic principles which formed the basis for the calculation.

Harman was not obligated to explain the specific mathematical computations utilized during the DNA process. See Iowa Rs. Evid. 703 (bases of expert witness’ opinion testimony), 705 (expert witness need not disclose underlying data); Mercy Hosp., 456 N.W.2d at 671 (expert witness need not introduce the records reviewed in formulating opinion); see also 7 Iowa Practice § 703.1, at 529, § 705.1, at 555. To the contrary, Belken was responsible for bringing out the underlying data when cross-examining Harman. See Iowa R. Evid. 705; Mercy Hosp., 456 N.W.2d at 672. As the evidence of the DNA match was accompanied by the statistical probability, Harman’s expert testimony satisfied the statistical foundation requirements delineated in our prior opinions. See Williams, 574 N.W.2d at 298 (finding error when DNA match evidence not accompanied by statistical probability); Brown, 470 N.W.2d at 32-33 (expert testimony regarding mathematical probability would assist jury in considering DNA evidence). Moreover, any asserted deficiencies in Harman’s qualifications and the statistical foundation were considered by the jury in determining what weight to attribute to the expert testimony. See Hunter, 481 N.W.2d at 520; Brown, 470 N.W.2d at 33.

V. Ineffective Assistance of Counsel.

Belken asserts several ineffective assistance of counsel claims, all of which we deem to be without merit. He first argues his counsel was ineffective for failing to object to the admission of Garloffs rebuttal testimony as inadmissible hearsay. Although Garloff was testifying to an out-of-court statement made by Jennifer, the State was not offering it to prove the truth of the matter asserted but for impeachment purposes only. See Iowa R. Evid. 801(c) (defining hearsay as an out-of-court statement by someone other than declarant offered “to prove the truth of the matter asserted”); State v. Soivder, 394 N.W.2d 368, 370 (Iowa 1986); State v. Wycoff, 255 N.W.2d 116, 118 (Iowa 1977). As such, it was not hearsay. Soivder, 394 N.W.2d at 370; see Iowa R. Evid. 801(c). Moreover, we find the State’s real purpose in offering Garloffs testimony was in fact to impeach Jennifer. Sowder, 394 N.W.2d at 371. The State limited its examination of Garloff to the specific statement conveyed by Jennifer, and did not attempt to establish the truth of the assertion. See id. Thus, as Garloffs testimony was not hearsay, Belken’s counsel was not ineffective for failing to make a meritless objection. State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998) (counsel not ineffective for failing to raise objection without merit).

Additionally, Belken claims his counsel rendered ineffective assistance by not moving for a mistrial for prosecutorial misconduct and for not objecting to Gar-loffs testimony on due process grounds. Even if the State’s conceded violation of the discovery order constituted prosecuto-rial misconduct, Belken was not prejudiced or deprived of a fair trial. State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). As previously determined, the evidence against Belken was strong. See id. at 34 (“significant that the evidence against the accused is strong”). Considering the entire record, we cannot conclude Belken would have been acquitted absent Garloff s testimony. See id. at 33. Consequently, Belken’s counsel was not ineffective. See McPhillips, 580 N.W.2d at 754.

VI. Merger.

Belken argues, and the State concedes, the district court erred in entering judgment and sentence on both the first-degree kidnapping and second-degree sexual abuse charges. The State presented the abduction and sexual assault of Tanya as a single continuous occurrence. State v. Constable, 505 N.W.2d 473, 478 (Iowa 1993); State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982); State v. Williams, 334 N.W.2d 742, 743 (Iowa 1983). Moreover, the sex act underlying the sexual abuse charge was a necessary element of the kidnapping charge. State v. Davis, 328 N.W.2d 301, 307 (Iowa 1982); see Iowa Code § 710.2 (“Kidnapping is kidnapping in the first degree when the person kidnapped ... is intentionally subjected to torture or sexual abuse." (emphasis added)). Consequently, we conclude the sexual abuse offense was necessarily included in the kidnapping conviction. State v. Morgan, 559 N.W.2d 603, 611 (Iowa 1997); Williams, 334 N.W.2d at 743. We merge the sexual abuse conviction, and vacate the judgment and sentence entered on that conviction. See Iowa Code § 701.9 (merger of lesser included offenses); see also Iowa R.Crim. P. 6(2) (defendant may not be convicted of both greater and lesser included offenses).v

VII. Conclusion.

We conclude the admission of Garloffs rebuttal testimony did not prejudice Belken. However, because we find the sexual abuse offense merged with the kidnapping charge, we vacate the judgment and sentence entered on the second-degree sexual abuse conviction. We otherwise affirm the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . Although Belken does not raise this issue, we must address the State’s two attempts during closing arguments to clarify Garloff's ambiguous testimony. We must consider the comments within the context of the entire closing arguments and the evidence admitted. See State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999); State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993). Furthermore, we presume the jury adhered to the trial court’s curative instruction that the jury was not to consider the closing arguments as evidence during deliberations. See State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998); State v. Glaus, 455 N.W.2d 274, 278 (Iowa Ct.App.1990).

      . DNA molecules are found in the chromosomes in cell nuclei. See Thomas M. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R.4th 313, 319 (1991). The DNA molecules are composed of millions of units called "base pairs.” Shea, 957 F.Supp. at 333. "There are four types of bases: adenine (A), thymine (T), guanine (G), and cytosine (C).” Id. The manner the base pairs are arranged makes up the genetic code that distinguishes humans from nonhumans and makes each individual unique. Id. Although 99.9% of the sequence of base pairs are identical in humans, there are regions known as polymorphic sites where substantial variations exist from one person to another. See Imwinkelried & Kaye, 76 Wash. L.Rev. at 445 n. 183. The different arrangement of the base pairs at a polymorphic site is called an allele. Id. "Among these alleles is a class known as 'short tandem repeats,' or STRs.” Id. These regions contain sets of specific DNA sequences of various lengths. Id. For example, in the DNA fragments that come from what has been identified as locus D7S820, "one individual [may] have an allele that consists of ... six repeats of the sequence GATA, while another person might have an allele with ten repeats.” David H. Kaye, Symposium, Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General, 40 Juris-metrics J. 193, 203 n. 39 (2000). Generally, STRs are "the most widely used ... alleles for forensic DNA identification." See Imwinkelried & Kaye, 76 Wash. L.Rev. at 445 n. 183.

      . The specificity of PCR-based tests depends not only on the number of loci tested, but also on the number of alleles per locus, and the allele frequencies. Kaye, 40 Jurismetrics J. at 203 n. 38. The thirteen loci selected by the Federal Bureau of Investigation for data basing, for example, "yield an average match probability of one in 180 trillion.” Id.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Charles Lonell CRAWLEY, Appellant.
    No. 99-1643.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and John Standafer, Assistant County Attorney, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   LARSON, Justice.

Charles Crawley was convicted of forgery and being an habitual offender, in violation of Iowa Code sections 715A.2 and 902.8 (1997), respectively. He claims error in the admission of certain evidence. We affirm.

On November 6, 1998, a Waterloo business was burglarized, and some of the business checks were taken. One of the checks was written without authorization, payable to Jon Gross, and cashed for $260. Gross, who became a state’s witness, testified Crawley wrote the check out to Gross, who cashed the check at a nearby grocery store. Gross gave Crawley all the cash except some that Gross used to buy groceries. When asked why Crawley gave him the check, Gross stated, “It was for to get drugs.”

As part of its investigation, on March 25, 1999, the State obtained an order requiring Crawley to submit a handwriting exemplar. The State contended that Crawley failed to comply with this order by providing an accurate exemplar because he had disguised his handwriting. The State then requested a contempt order, and on April 8, the court found him in contempt. The court found the defendant “willfully and intentionally refused to comply with handwriting exemplar orders, and to subvert exemplar through feigned cooperation.”

On May 6 the State filed a motion to adjudicate law points, requesting that evidence of Crawley’s refusal to provide an accurate handwriting exemplar be admitted at trial. The court granted the State’s motion, ruling that testimony of the lack of compliance with the court’s order was admissible; however, evidence Crawley had been found in contempt for failing to provide the sample was not admissible. At trial two officers, including a handwriting expert, testified Crawley disguised his handwriting while preparing the exemplar.

Crawley was convicted of forgery in the first stage of a bifurcated trial, and in the second stage, he was found guilty of being an habitual criminal. On his appeal we address five issues: (1) the admission of evidence of his refusal to provide the exemplar, (2) the court’s failure to adequately admonish the jury with respect to evidence of the contempt finding, (3) the admission of “bad acts” evidence involving “a rash of several burglaries,” (4) the admission of “bad acts” evidence concerning drug use, and (5) the admission of Craw-ley’s jail booking card into evidence. We reserve other issues for possible postcon-viction proceedings.

I. Evidence of Defendant’s Refusal to Provide Handwriting Exemplar.

At trial the State offered evidence of the defendant’s failure to provide a handwriting exemplar, and pursuant to the court’s pretrial ruling, the evidence was admitted at trial. In State v. Longstreet, 407 N.W.2d 591, 595 (Iowa 1987), we expressly reserved the issue of admitting evidence of a defendant’s failure to provide a handwriting exemplar. -We noted, however, that “[i]n most jurisdictions the trial court would allow the prosecution to comment on the defendant’s refusal to produce exemplars as tending to suggest their guilt.” Longstreet, 407 N.W.2d at 596.

The defendant relies on United States v. White, 355 F.2d 909, 912 (7th Cir.1966), to support his argument that evidence of his refusal to submit an exemplar was improperly admitted. White, however, is not persuasive. It does not address the issue in depth and, in fact, has not been followed in the circuit that decided it. In a subsequent case, United States v. Jackson, 886 F.2d 838, 845-46 (7th Cir.1989), the seventh circuit reached the opposite result with a more thorough analysis and without citation to White.

The Jackson court adopted the majority view, stating “[w]e believe the evidence of the defendant’s refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt, or in other words guilty knowledge.” Id. at 846; see also Wilson v. State, 596 So.2d 775, 777 (Fla.Dist.Ct.App.1992) (“[R]efusal is considered circumstantial evidence of consciousness of guilt.” (quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 7.2(c) (1982))). Indeed, it has been noted that “[a]ll federal circuits passing on the question held or opined that the refusal to submit a handwriting exemplar was admissible as evidence of consciousness of guilt” except for the seventh circuit, which “23 years [after White ] fell into line.” H. Richard Uviller, Self-Incrimination by Inference: Constitutional Restrictions on the Evidentiary Use of a Suspect’s Refusal to Submit to a Search, 81 J.Crim. L. & Criminology 37, 56 & n.64 (1990).

It is clear handwriting exemplars are different from statements privileged under the Fifth Amendment:

There is no doubt that requiring a defendant to give a handwriting specimen does not violate his fifth amendment privilege against self-incrimination since the privilege reaches only compulsion of a defendant’s communication. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967). “A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.” Id. at 266-67, 87 S.Ct. at 1953 (citation omitted); see also United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 776, 35 L.Ed.2d 99 (1973). Since handwriting exemplars are not testimonial or communicative matters but instead are an “identifying physical characteristic” of the person, Gilbert, 388 U.S. at 266-67, 87 S.Ct. at 1953; Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), evidence of, or comment on the defendant’s refusal to comply with the lawful court order for the handwriting exemplars is distinguishable from evidence of, or commenting on the defendant’s constitutional rights to refuse to testify at trial, or to post-arrest silence.

Jackson, 886 F.2d at 845 n. 8; see also United States v. Brown, 156 F.3d 813, 815 (8th Cir.1998) (“[Defendant’s] refusal to give an exemplar was not privileged, and the jury could properly consider his refusal as evidence that the results of that testing would have been adverse.”); Wilson, 596 So.2d at 777; People v. Denard, 148 A.D.2d 957, 539 N.Y.S.2d 195, 195 (1989).

It also appears there is no difference between a refusal to submit a handwriting exemplar and an attempt to disguise the handwriting in the exemplar; evidence of noncompliance is admissible in both instances.

“[I]t is not improper for the prosecution to show that the defendant attempted to avoid providing a valid handwriting sample by intentionally distorting his handwriting.”
Just as a defendant’s refusal to provide a handwriting exemplar is admissible evidence of consciousness of guilt, so too is opinion evidence of a defendant’s efforts to disguise his handwriting on an exemplar.

People v. Tai, 37 Cal.App.4th 990, 44 Cal. Rptr.2d 253, 257-58 (1995) (quoting United States v. Stembridge, 477 F.2d 874, 876 (5th Cir.1973)) (other citation omitted).

We hold this evidence was properly admitted.

II. Reference to Contempt Proceedings.

The trial court had ruled the State would not be permitted to introduce evidence of the defendant being found in contempt. Crawley, however, contends that the following colloquy violated that ruling:

Q. So were you able to — does this wrap up your investigation of this case, Investigator Moller? A. No. There were hearings involved in regard! ] to contempt of court hearings regarding....
[DEFENSE COUNSEL]: Objection, your Honor. I don’t believe that’s a fit subject for this hearing.
THE COURT: Alright. Sustained. Disregard, ladies and gentlemen.

This comment only referred to contempt proceedings in general and made no reference to a finding of contempt regarding Crawley. In any event, any error was cured by the court’s admonition to the jury to disregard the reference to contempt.

III. Reference to “A Rash of Several Burglaries,

One of the officers testified there had been “a rash of several burglaries” to explain why he was conducting an investigation. The defendant claims this was “bad acts” evidence prohibited by Iowa Rule of Evidence 404(b). The colloquy was as follows:

Q. Did you investigate an incident which occurred at M.A. Moore & Associates and Overhead Door back in November of 1998, Investigator Moller? A. Yes, I did.
Q. And can you tell the ladies and gentlemen [of the jury] how you first got involved in that matter? A. I first became involved in the burglary to two businesses which occupy the residence or the address of the 800 block of Commercial and this would be M.A. Moore & Associates and also Overhead Door. They were broken into and nothing at that time of value appeared to be taken. This was on a Thursday, November the 5th. And it was a couple days after that that I was assigned to the case and the case progressed from there.
Q. Okay. And in the course of your initial investigation, did you discover anything at that time? A. Yes, I did. I might also mention that back in October and November of last year, we had a rash of several burglaries in the downtown area where a forced entry would be made sometime during the evening and there appeared to be nothing of value taken.

The State responds that the comment was merely background to explain investigator Moller’s actions. See 1 Jack B. Weinstein & Margaret A. Berger, Wein-stein’s Evidence ¶ 401[05], at 401-29 (1994) [hereinafter Weinstein] (“Evidence that serves as background information about persons, subjects or things in a trial is generally admissible although it may not relate to a consequential fact.”). It is clear this was the context in which the court admitted the testimony, as shown by its admonition to the jury:

I’ll allow the witness to give a little more background as to why he was investigating this case, but I’d ask counsel to keep that limited and this is only for context, ladies and gentlemen of the jury. This is not for purposes of this prosecution other than to give a brief background.

The reference to other burglaries did not link the defendant to them, and in any event, the court’s admonition adequately cured any error.

IV. Introduction of Evidence of Prior Drug Use.

Jon Gross, who helped Crawley cash the check, testified Crawley used drugs and used the check proceeds to buy drugs. Crawley did not object at trial to this evidence, but he argues on appeal that this evidence was also “bad acts” evidence prohibited by rule 404(b). He contends his failure to object at trial is excused because of ineffective assistance of his trial counsel. After his conviction, Crawley was represented by a new attorney who raised the issue as a ground for a new trial. At the hearing on his motion, Crawley’s new counsel examined Crawley’s trial attorney but made no record regarding any strategic reason for failing to object to the drug evidence. Nevertheless, even if we assume there was no strategic reason for this failure, we reject the argument because the court did not abuse its discretion in allowing the evidence.

In State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988), we said:

In determining whether evidence of “other crimes, wrongs, or acts” is admissible, the trial court must employ a two-step analysis. The court must first decide whether the evidence is relevant. If the court finds that it is, the court must then decide whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice ....
In the process of employing the two-step analysis, the trial court must exercise its discretion. We will reverse its decision only when we find a clear abuse of discretion.

In State v. Liggins, 524 N.W.2d 181 (Iowa 1994), the district court admitted extensive evidence of the defendant’s past drug dealing, although the charge against Liggins was murder. The State attempted to justify the drug evidence under Iowa Rule of Evidence 404(b) as going to the issues of identity and plan and also to show “the entire circumstances surrounding the crime.” Liggins, 524 N.W.2d at 188. We rejected that argument, saying the evidence was both not relevant and inherently prejudicial; therefore, the court abused its discretion in admitting it. Id. Crawley relies on Liggins to support his argument.

Liggins, however, cannot be read so broadly as to hold that references to drugs in all circumstances is irrelevant for purposes of rule 404(b). Here, the testimony was that the motive for cashing the check was to obtain drugs, and credible authority supports the admissibility of such evidence under those circumstances. One authority states:

Evidence of other crimes has been admitted to show the likelihood of defendant having committed the charged crime for money, particularly for money to buy drugs; for sex; for goods to sell; because he was filled with hostility, sought to conceal a previous crime, or wanted to escape; because he intended to silence a potential witness, required assistance in a criminal scheme, or needed to protect himself in the commission • of another crime.

Weinstein ¶404[14], at 404-86 to 404-90 (emphasis added) (footnotes omitted).

This proposition is not without controversy; recent cases are divided on the issue. See United States v. Brooks, 125 F.3d 484, 500 (7th Cir.1997) (“[T]he district court properly weighed the rule 404(b) factors” before admitting evidence that the defendants “used crack cocaine and that their desire to obtain more cocaine motivated this bank robbery.”); Adams v. State, 272 Ga. 115, 527 S.E.2d 200, 202 (2000) (“[Ejvidence that [the defendant] purchased crack cocaine after the armed robbery and murder of [the victim] ... was relevant and admissible to show [the defendant’s] motive in committing the crimes ... [as a] reasonable fact finder can infer connection between armed robbery and purchase of cocaine because association between high cost of drugs and need for funds to purchase them is well recognized.”); Sykes v. Mississippi, 749 So.2d 239, 244 (Miss.Ct.App.1999) (defendant’s admission that he smoked crack cocaine prior to the burglary and entered building in search of money with which to purchase more crack cocaine admissible as material to prove motive); State v. Barnett, 141 N.C.App. 378, 540 S.E.2d 423, 431 (2000) (“[E]vidence elicited on cross-examination about defendant’s drug use ... was admissible under Rule 404(b) because it permits the inference that defendant committed this robbery and murder to obtain money he needed to support his drug habit.”); Massey v. State, 826 S.W.2d 655, 658 (Tex.Ct.App.1992) (evidence defendant discussed burglary, selling “hot” tires, and other ways to “come up with quick money” leads to fair inference defendant wanted to obtain money to buy additional intoxicants and was admissible to show defendant’s motive for the robbery). But see generally State v. Mazowski, 337 N.J.Super. 275, 766 A.2d 1176 (2001) (citing numerous cases, including cases from California, Michigan, and Washington, that unfair prejudice completely overwhelmed the evidence’s probative value as to motive).

In Liggins we said:

Evidence of other offenses should never be admitted when the other offense is committed wholly independent of the one for which the defendant is on trial.

524 N.W.2d at 188.

In the present case, the drug use was not “wholly independent” of the crime for which the defendant was being tried, as it was in Liggins. It was clearly relevant as to motive: The State’s witness testified that the need to obtain money with which to buy drugs was the reason the forgery was undertaken. Even if defense counsel had objected, the court would not have abused its discretion in admitting it or in concluding its probative value was not “substantially outweighed by the danger of unfair prejudice” under Iowa Rule of Evidence 403.

Y. Jail Booking Card.

After securing Crawley’s handwriting exemplar, officer Moller obtained Crawley’s jail booking card for comparison purposes. This card was admitted as an exhibit, and the defendant claims the trial court abused its discretion in admitting it. He contended there was no evidence that Crawley signed the jail booking card.

We summarily reject that argument. The officer testified the defendant signed the booking form and identified the exhibit introduced at trial as a true and correct copy of the card.

VI. Other.Issues.

Crawley raises several other issues that, because of an inadequate record, we decline to resolve on appeal. The State concedes some issues should be preserved for possible postconviction proceedings, but it contends the record before us (as presented in the new-trial proceedings) is sufficient to consider, and reject, two ineffective-assistance-of-counsel issues: defense counsel’s failure to retain a handwriting expert and ineffective assistance in questioning one of the State’s witnesses.

We believe that all the following issues as to which Crawley claims ineffective assistance of counsel should be preserved for possible postconviction proceedings in order to consider them in their totality. These include (1) defense counsel’s failure to retain a handwriting expert; (2) defense counsel’s soliciting the handwriting opinion of officer Moller, notwithstanding Moller’s admitted lack of expertise; (3) failing to object to Moller’s testimony regarding other forgeries of checks from the same business; and (4) soliciting officer Moller’s testimony regarding other suspects with whom Crawley was familiar.

VII. Conclusion.

We find no error in the court’s rulings on any of the issues considered in divisions I through V. All other issues are preserved for possible postconviction relief.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.


author: TERNUS, Justice.

text:
    Steven A. PUDIL and Diane Lynn Pudil, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 99-1533.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Michael L. Mollman of Mollman Law Office, Cedar Rapids, for appellants.
    J. Michael Weston and Brenda K. Wall-richs of Moyer & Bergman, Cedar Rapids, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   TERNUS, Justice.

In the ruling at issue in this appeal, the trial court held that the plaintiffs could not recover , both uninsured motorist and un-derinsured motorist benefits. We agree and so affirm.

I. Background Facts and Proceedings.

On December 22, 1995, the plaintiff, Steven Pudil, was a passenger in a truck being driven by Andrew Chalupsky when it was involved in a one-vehicle accident. Swisher Plumbing Company, Inc., Pudil and Chalupsky’s employer, owned the truck.

Chalupsky had no liability insurance at the time of the accident. The truck, however, was insured under a liability policy issued to Swisher Plumbing by West Bend Mutual Insurance Company. In addition, Pudil and his wife, Diane, had a liability insurance policy with the appellee, State Farm Insurance Company, that insured their personal automobile. Both the West Bend and State Farm policies included uninsured motorist and underinsured motorist coverage as well as liability coverage.

The Pudils sued Chalupsky, Swisher Plumbing and State Farm seeking damages for the injuries sustained by Pudil in the accident. In that lawsuit the plaintiffs alleged that Chalupsky negligently caused the accident and was, therefore, liable for their damages. They sought to recover from Swisher Plumbing on a theory of owner liability. See Iowa Code § 321.493 (Supp.1995). With respect to their claim against State Farm, the plaintiffs alleged that in the event Chalupsky and Swisher Plumbing did “not have adequate insurance,” State Farm was obligated under its uninsured/underinsured motorist coverage.

Prior to trial West Bend paid the limits of its uninsured motorist (UM) coverage to the plaintiffs and the plaintiffs then dismissed Chalupsky and Swisher Plumbing from the lawsuit. In the release and settlement agreement signed by the plaintiffs, they acknowledged that the settlement payment was paid solely under the terms of the UM coverage and that this sum was the only amount they would receive from West Bend.

The case against State Farm was submitted to the trial court on a stipulated record. The plaintiffs argued in one of their trial briefs that although “Pudil was injured by the negligence of an uninsured driver,” the payment made by West Bend “renderfed] the vehicle an underinsured vehicle for purposes of coverage under the State Farm policy.” By the time of trial, the plaintiffs had abandoned any claim under State Farm’s uninsured motorist coverage.

The trial court found that West Bend’s liability coverage did not apply to the accident and that the plaintiffs had received the limits of West Bend’s uninsured motorist coverage. The court also found that Chalupsky was an uninsured motorist. The trial court held that the vehicle could not be both uninsured and underinsured, noting that these coverages are “separate, distinct, and mutually exclusive.” The court concluded, therefore, that State Farm had no liability under its underin-sured motorist (UIM) coverage. The Pu-dils appealed.

II. Scope of Review.

Review of a law action tried to the court on stipulated facts is “limited to assigned error in the district court’s application of law pertinent to the controversy.” Stewart v. DeMoss, 590 N.W.2d 545, 547 (Iowa 1999). Factual findings made by the court are binding on appeal if supported by substantial evidence. See Iowa R.App. P. 14(f)(1). “The construction of an insurance contract and the interpretation of its language are matters of law for the court.” III. Nat’l Ins. Co. v. Farm Bureau Mut Ins. Co., 578 N.W.2d 670, 671 (Iowa 1998).

III. Discussion.

The Pudils seek to recover under a contract of insurance with State Farm. Therefore, we begin our analysis with a review of the contract, specifically, the pertinent provisions of the UIM coverage of the State Farm policy. In this coverage, State Farm agrees to “pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an under-insured motor vehicle.” (Emphasis omitted!) Thus, at the outset, it is clear that in order to recover any UIM benefits, the plaintiffs must establish that the truck owned by Swisher Plumbing and driven by Chalupsky was an “underinsured motor vehicle.”

The State Farm policy defines the term “underinsured motor vehicle” as “a land motor vehicle ... the ownership, maintenance or use of which is insured ... for bodily injury liability at the time of the accident!,] and ... whose limits of liability for bodily injury liability ... are less than the amount of the insured’s damages.... ” The UIM coverage specifically provides that an underinsured motor vehicle does not include a motor vehicle defined as an uninsured motor vehicle. The policy definition of “uninsured motor vehicle” includes “a land motor vehicle,- the ownership, maintenance or use of which is ... insured ... for bodily injury liability at the time of the accident[,] but ... the insuring company denies coverage.... ”

These policy terms comport with our uninsured/underinsured motorist statute, Iowa Code chapter 516A. See generally Tri-State Ins. Co. v. DeGooyer, 379 N.W.2d 16, 17 (Iowa 1985) (stating that “[t]he statute itself forms a basic part of the policy and is treated as if it had actually been written into the policy”). This court has previously explained the difference between UM and UIM coverage as contemplated by the Iowa statute:

If the tortfeasor has no liability insurance the injured plaintiff can, under his own uninsured motorist coverage, recover his loss from the tort, subject to the limit of that uninsured coverage.... Correspondingly, if the tortfeasor has some liability insurance but insufficient to pay the loss fully, the plaintiff can, under his own underinsured motorist coverage, recover his loss from the tort less the tortfeasor’s available liability insurance proceeds, subject to the limit of that underinsured coverage....

Am. States Ins. Co. v. Estate of Tollari, 362 N.W.2d 519, 522 (Iowa 1985) (emphasis added; original emphasis omitted) (citation omitted); accord Kluiter v. State Farm Mut. Auto. Ins. Co., 417 N.W.2d 74, 75 (Iowa 1987) (noting that the purposes behind UM and UIM coverage are somewhat different — UM coverage applies where a tortfeasor either has no insurance or has less than required by Iowa’s financial responsibility law and UIM coverage applies where the negligent tortfeasor has at least the required amount of insurance, but does not have enough to fully compensate the victims of negligence).

Based on the applicable policy language, we think the determinative issue here is whether the plaintiffs’ damages were caused by the owner or driver of an “un-derinsured motor vehicle.” That issue, in turn, depends on whether the ownership or use of the truck was insured for bodily injury liability at the time of the accident, making it an underinsured motor vehicle, or whether the liability insurer had denied coverage, making it uninsured under the terms of the UIM coverage.

Initially, we address the plaintiffs’ argument that the State Farm policy is ambiguous with respect to the type of “coverage” that must be denied by the insurer in order to render the vehicle uninsured. The State Farm policy definition of “uninsured motor vehicle” is clear when read in context: “Uninsured Motor Vehicle — means: ... a land motor vehicle, the ownership, maintenance or use of which is ... insured or bonded for bodily injury liability at the time of the accident; but ... the insuring company denies coverage .... ” (Second emphasis added.) It is readily apparent from reading the entire definition that the denial-of-coverage language refers to “bodily injury liability” coverage. Thus, the trial court was correct in focusing on whether there was liability coverage on the Swisher Plumbing vehicle for this accident in determining its insured status. We turn now to an examination of the factual support for the trial court’s conclusion that the vehicle was uninsured.

The trial court concluded that the vehicle was uninsured, which, by definition, precluded the vehicle from being underin-sured. Under the stipulated facts of this case, we think there is substantial evidence to support this finding. West Bend paid and the plaintiffs accepted payment under the uninsured motorist coverage of the West Bend policy. (The West Bend policy, like the State Farm policy, defined an “uninsured motor vehicle” as “a land motor vehicle ... [f]or which an insuring ... company denies coverage_”) The plaintiffs relinquished any claim to payment under the liability coverage of the West Bend policy. Moreover, the plaintiffs admitted in their trial court pleadings that Chalupsky was an uninsured motorist. These facts support the trial court’s finding that the truck was uninsured and, therefore, that finding is binding on appeal.

That brings us to the next issue: Did the payment of UM benefits by West Bend transform the vehicle into an under-insured motor vehicle, as the plaintiffs contend? We agree with the trial court that it did not. Whether a vehicle is an underinsured motor vehicle is determined as of “the time of the accident” since the policy defines that term as a motor vehicle, the ownership or use of which is insured “for bodily injury liability at the time of the accident.” Under the trial court’s findings, there was no applicable bodily injury liability insurance at the time of the accident. UM benefits paid under a policy insuring the injured party do not qualify as bodily injury liability insurance so as to satisfy the policy definition of underin-sured motor vehicle. See State Farm Mut. Auto. Ins. Co. v. Beavers, 321 Ark. 292, 297, 901 S.W.2d 13, 16 (1995) (stating, “[i]n short, the statute is clear that under-insured motorist coverage is triggered when the tortfeasor’s insurance, not that of the insured, is less than the amount of damages incurred by the insured” (emphasis added)); State Farm, Mut. Auto. Ins. Co. v. Lindsey, 54 Ark.App. 390, 391, 926 S.W.2d 850, 851 (1996) (stating that the Arkansas “statute implies that underin-sured coverage is not triggered unless the tortfeasor has insurance in the first instance” (emphasis added)); Berg v. W. Nat’l Mut. Ins. Co., 359 N.W.2d 726, 729 (Minn.Ct.App.1984) (holding that in order for insured to qualify for UIM benefits, there must have been a liability policy in effect; UM coverage does not satisfy this requirement). Contrary to the plaintiffs’ position, the West Bend UM coverage was not coverage on the truck; it was coverage on the plaintiffs, who qualified as insureds under the UM coverage of the policy because they were injured by the driver of an uninsured vehicle. See Homick v. Owners Ins. Co., 511 N.W.2d 370, 372 (Iowa 1993) (stating that “uninsured and underinsured motorist coverage protects ... the person, not the vehicle”).

Because the classification of a vehicle as uninsured or underinsured is made as of the time of the injury-causing accident, it is logically impossible for the vehicle to be both uninsured and underinsured at the same time. As a noted treatise states: “Simply put, as defined in the standard coverage terms and as contemplated by legislative requirements, uninsured and underinsured are separate, distinct and mutually exclusive coverages in regard to any single motor vehicle which has been negligently operated.” 3 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 35.20, at 300 (rev.2d ed.2001) (emphasis added).

Several other states have held that UM and UIM coverages are mutually exclusive. See, e.g., Beavers, 901 S.W.2d at 16-17 (overruling district court’s decision that plaintiffs were entitled to both UM and UIM coverage under policy on the basis that the policy excluded from the definition of an underinsured motor vehicle an uninsured vehicle and on the plain meaning of the statute applicable to un-derinsurance coverage which clearly referred to “the tortfeasor’s insurance coverage,” an indication that the coverages were mutually exclusive); Evenchik v. State Farm Ins. Co., 139 Ariz. 453, 458, 679 P.2d 99, 104 (1984) (rejecting plaintiffs argument that “since the uninsured motorist has zero coverage he is underinsured and the [underinsured] coverage kicks in on top of the uninsured limit to provide additional coverage” and noting that under the statute, when a negligent driver or owner has liability coverage, the vehicle is not uninsured); Nat’l Union Fire Ins. Co. v. Ferreira, 71 Haw. 341, 345, 790 P.2d 910, 913 (1990) (holding that under the plain and obvious meaning of the UIM statute, a prerequisite to the term “underinsured motor vehicle” is the existence of “ ‘bodily injury liability insurance coverage’ which is ‘less than the liability for damages imposed by law’ ” and where no such coverage existed, tortfeasor was not underinsured under the statute but rather uninsured; concluding that terms underinsured and uninsured are mutually exclusive as applied to the same motor vehicle and the combination of these two coverages by the insured was contrary to legislative intent); Berg, 359 N.W.2d at 729 (“The same motorist cannot be, at the same time, both uninsured and underinsured; the terms are mutually exclusive.”); Bjomson v. Guar. Nat’l Ins. Co., 539 N.W.2d 46, 47-48 (N.D.1995) (rejecting insured’s claim for UM and UIM benefits under single policy, holding “[t]he definitions of an uninsured and an under-insured motor vehicle in [the insured’s] policy with [the insurer] unambiguously preclude an insured from receiving both UM and UIM benefits when the tortfea-sor’s vehicle, although carrying some liability insurance protection falls within the definition of an uninsured motor vehicle”); Fireman’s Ins. Co. v. State Farm Mut. Auto. Ins. Co., 295 S.C. 538, 539, 370 S.E.2d 85, 86 (1988) (stating that “an individual may be either uninsured or under-insured, but not both”). The plaintiffs contend that these cases are distinguishable because they involve uninsured and underinsured coverages under a single policy. The fact that a single policy was involved in these cases is, however, a distinction without a difference. The same rationale applies regardless of whether the UM and UIM coverages are found in a single policy or separate policies: A vehicle cannot be both uninsured and underinsured at the same time.

In summary, we conclude that the district court correctly held that Pudil’s injuries were caused by the negligence of the driver of an uninsured motor vehicle. Therefore, by definition, the vehicle was not underinsured. Accordingly, there was no error in the trial court’s judgment that the State Farm UIM coverage was not available to the plaintiffs under the circumstances of this case.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . The stipulated record does not reveal the reason for West Bend’s refusal to pay under the liability coverage of its policy.

      . The West Bend uninsured motorist coverage included as insureds anyone occupying a covered auto — Pudil—and "[a]nyone for damages he is entitled to recover because of 'bodily injury’ sustained by another 'insured' ” — Pudil's wife.