source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Edward MARTIN, III, Appellant.
    No. 04-0025.
    Supreme Court of Iowa.
    Oct. 7, 2005.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Heather Prendergast and Jill Dash-ner, Assistant County Attorneys, for ap-pellee.
   STREIT, Justice.

During a routine “pat-down,” a Waterloo police officer discovered a crack pipe in Edward Martin’s pants. Martin, who was convicted of cocaine possession, claims he was denied effective assistance of counsel because his lawyer did not object when a hearsay-ridden evidence tag made its way to the jury room. Finding no prejudice, we vacate the decision of the court of appeals and affirm the district court. Martin also argues the district court abused its discretion by allowing testimony recounting prior robbery arrests and describing Martín as a violent person. Although it was error to allow such testimony, the error was harmless.

I. Facts and Prior Proceedings

On July 26, 2003, Waterloo police received a report that a man was “pimping” a female in the 200 block of West Third Street. The police stopped Edward Martin, III, who was in the area and matched the suspect’s general description. One of the officers dispatched to the scene knew Martin had prior arrests for robbery and assault on a police officer. The officer concluded Martin had violent tendencies. Martin was also wearing baggy clothes, which the officer surmised might conceal a weapon. The officer asked Martin if he could pat him down. Martin refused.

The officer forcibly began a pat-down. Twice during the pat-down, Martin made a quick, furtive movement towards his pants-pocket. One of the officers suspected Martin had something in his pocket he did not want them to find. The officer manipulated the outside of Martin’s pocket and felt a hard object. The officer reached in and pulled out a metal crack pipe. Discovering burnt residue inside the pipe, the officer arrested Martin for possession of cocaine. See Iowa Code § 124.401(5) (2003). Later tests confirmed the residue was cocaine.

At trial, the State introduced the crack pipe into evidence as “Exhibit A.” Martin alleges the judge permitted the crack pipe to go to the jury in an envelope with an evidence tag attached. The manila envelope bears an “Exhibit A” sticker and a tag with the following writing:

CASE NO. W03-66194

DATE 072803

NAME Edward Martin III

ADDRESS 316 E. Mullan

TAKEN BY Mark McKinley

DEVELOPED BY

PRINTED BY

REMARKS Narcotics

A

Inside the envelope is a paper sack containing a crack pipe. Martin’s lawyer did not object to the envelope at trial. The jury later found Martin guilty.

Martin appealed. The court of appeals held Martin’s trial counsel was ineffective for failing to object to the evidence tag. The court reasoned the writing on the envelope constituted unfair hearsay that was prejudicial to Martin’s case. We granted the State’s application for further review.

II. Standard of Review

We review ineffeetive-assistance-of-counsel claims de novo. See, e.g., State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005); State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005); State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004).

III. The Merits

A. The Evidence Tag

We have long held it is error for the district court to allow the prosecution to submit evidence to the jury with statements written on attached evidence tags. See, e.g., State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 426-27 (Iowa 1974); see also State v. Gallup, 500 N.W.2d 437, 440-41 (Iowa 1993) (finding error but concluding it was harmless). But see State v. Christensen, 205 Iowa 849, 851, 216 N.W. 710, 711 (1927) (finding “no error or prejudice” because court gave limiting instruction). Not only may evidence tags contain hearsay, but they can also unfairly emphasize the State’s evidence. Branch, 222 N.W.2d at 426-27. “Once an exhibit has been received in evidence, no proper purpose exists for leaving attached to it an [evidence] tag which summarizes the State’s testimony regarding the exhibit.” Shultz, 231 N.W.2d at 587.

In Branch, we reversed a conviction for delivery of a controlled substance because an evidence tag contained a “neat condensation of the [State’s] whole case against the defendant” — the name of the drug, the times and dates of the sale and the delivery, the name of the defendant, the purchase price, and the names of the police officers and special agent involved in the sting. 222 N.W.2d at 425-27. Likewise, in Shultz we reversed a conviction for breaking and entering because the tag contained a concise summary of the case— the place where the evidence was found, the date and time of its recovery, the defendant’s name, the charge, the name of the victim, and the name of the officer who recovered the evidence. 231 N.W.2d at 587. In contrast, in Gallup, we held any error in submitting an evidence tag to the jury was harmless because the defendant, charged with delivery of a controlled substance, had admitted he had sold the drug to an undercover agent. 500 N.W.2d at 440-41.

On appeal, Martin contends his case is like Branch and Shultz, not Gallup, because unlike the defendant in Gallup, he never made an admission. The court of appeals agreed. Relying on Branch, the court presumed the evidence tag was prejudicial. The court held that Martin’s trial counsel was ineffective in not objecting to the admission of the exhibit when it still had the property tag affixed to the outside envelope.

We find a critical distinction between the present case and Branch, Shultz, and Gallup. In those three cases, we analyzed whether the trial court had abused its discretion in overruling the defendant’s objection to the admission of the property tag on the piece of evidence. Gallup, 500 N.W.2d at 440-41; Shultz, 231 N.W.2d at 587; Branch, 222 N.W.2d at 426. In the present case, the trial court was not presented with the opportunity to rule on such an objection, and “[generally, when a party makes no objection to the reception of evidence at trial, the matter will not be reviewed on appeal.” Wirtanen v. Provin, 293 N.W.2d 252, 257 (Iowa 1980); see also Iowa R. Evid. 5.103(a) (stating “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record”). Martin did not object to the envelope. Consequently, the trial court was not alerted to the issue so that the error could be avoided, and the state was not given the opportunity to remove the tag or establish that it was not prejudicial. We cannot, therefore, analyze whether the court abused its discretion in admitting the evidence. We must only analyze this case under ineffeetive-assistance-of-counsel principles. See, e.g., State v. Brooks, 540 N.W.2d 270, 273 (Iowa 1995) (requiring defendant to establish prejudice in case in which no objection was made to evidence tags at trial); see also State v. Carberry, 501 N.W.2d 473, 477 (Iowa 1993) (“Defendant urges ... all hearsay testimony is presumed to be prejudicial. The cases stating that proposition, however, involved alleged evidentiary error preserved by contemporaneous objection.”).

To prove a claim of ineffective assistance of counsel, Martin must show by a preponderance of the evidence that his trial counsel (1) failed to perform an essential duty and (2) prejudice resulted. Philo, 697 N.W.2d at 485 (citations omitted); accord Rompilla v. Beard, — U.S. ——, -, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360, 377 (2005) (“Ineffective assistance ... is deficient performance by counsel resulting in prejudice.... ”). To prove prejudice on this test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

We will focus solely upon the second prong of this test because we find Martin cannot show prejudice. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003) (recognizing failure to prove either prong of test is fatal to ineffective-assistance-of-counsel claim). Although it contained hearsay, the particular tag in this case did not provide the jury with “a neat condensation of the [State’s] whole case against the defendant.” Cf. Branch, 222 N.W.2d at 427. Far from encapsulating the State’s case against Martin, the information on the tag simply describes the chain of custody of the crack pipe. A closer inspection of the evidence tag bears this assertion out.

First, unlike the evidence tags in Branch and Shultz, the date on the tag in the case at bar does not match the date of the alleged offense. The alleged offense occurred on July 26; the evidence tag lists July 28. At trial, the supervisor of the Waterloo crime lab explained the discrepancy: the date on the tag was the date the crime lab investigators prepared the crack pipe for shipment to the state crime lab in Des Moines. Second, the officer listed on the tag was not one of the arresting officers, but rather — as other evidence presented to the jury makes clear — the case officer assigned to handle the crack pipe. Third, the crime lab supervisor testified that the case number was the agency number the Waterloo police department used to keep track of the crack pipe. Fourth, the address listed on the evidence tag is not the location of Martin’s arrest, but rather his residence. Fifth, the tag, as well as the inner paper sack, contains a number of other identifying numbers, dates, and initials, as well as bright red crime lab tape. Taken together, this jumble of information provides the chain of custody for the crack pipe — showing who opened the bags and when they did so. Viewed in context, the evidence tag simply encapsulates the chain of custody of the crack pipe, not the State’s case. Cf. State v. Reese, 259 N.W.2d 771, 776-77 (Iowa 1977) (finding tags did not summarize State’s case).

In light of the foregoing, Martin’s allegations of the prejudicial effect on the jury are purely speculative. It is important to recognize the State’s evidence against Martin was particularly strong in this case: the police found a crack pipe containing cocaine in Martin’s pocket. This is a very good indication Martin knowingly possessed cocaine, a conclusion Martin’s demeanor and furtive movements buttress. It is thus improbable that admission of the tag affected the outcome of Martin’s trial. Because “defects in assistance that have no probable effect upon the trial’s outcome do not establish a constitutional violation,” see Mickens, 535 U.S. at 166, 122 S.Ct. at 1240, 152 L.Ed.2d at 300, Martin did not suffer prejudice when the evidence tag made its way to the jury. His ineffective-assistance-of-counsel claim fails.

B. Iowa Rule of Evidence 5.403

Because the court of appeals reversed on the evidence-tag issue, it did not discuss another evidentiary claim Martin raised. In what follows, we find it was error to allow an officer to testify that Martin was “known to be violent” at the time of his arrest. We affirm, however, because we conclude the error in admitting the officer’s testimony was harmless.

1. Background

Before trial, Martin’s attorney made an oral motion in limine to exclude any reference to Martin’s prior convictions or bad acts. These apparently included a conviction for assault on a police officer and a robbery arrest. Martin’s attorney also asked the court to shield the jury from the fact that Martin was suspected of pimping when the police stopped him. The district court sustained Martin’s motion in its entirety. The court warned defense counsel, however, that if he suggested the pat-down was inappropriate, the State would be allowed to introduce evidence to show the officer was justified in patting Martin down. The parties agreed to abide by the judge’s ruling.

Pursuant to the parties’ agreement, on direct examination, the officer vaguely testified he stopped Martin after receiving a report of “some criminal activity” in the area. The officer then testified he patted down Martin because (1) it was something he regularly did and (2) Martin was wearing baggy clothing, which is sometimes used to conceal weapons.

On cross-examination, Martin’s attorney — plainly in derogation of the parties’ agreement — asked the officer why he thought Martin might have a weapon. The officer repeated his prior testimony.

Once she was outside the jury’s presence, the prosecutor asked the court to allow the officer to testify fully about his reasons for patting down Martin. The court ruled:

I had previously notified the defense that if the defense ... suggested ... the officer was overreaching in patting Mr. Martin down, that I was going to allow the State to ask the witness to explain why that was taking place so that there is a factual basis for the officer’s conduct. So I don’t want to belabor this. We spent a lot of time with it. But I think at this point I’m going to allow the State to go into why [the officer was] patting Mr. Martin down for weapons.

When the officer’s testimony was introduced, the defendant objected. He argued the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid. 5.403. The trial court overruled the objection. The officer testified he patted down Martin because Martin had been “arrested for robberies,” “arrested for assault on a police officer,” and was “known to be violent.” Sua sponte, the court immediately cautioned the jury that the officer’s testimony was “not offered for the truth of the matter” but “only offered for the purpose of showing why this witness took the action that he did in patting down the defendant.” Later in the trial, the court, at the defendant’s urging, also reminded the jury that Martin had not been convicted of robbery, only arrested.

2. The Merits

Martin argues the district court abused its discretion in allowing evidence of his prior robbery arrests and the description of him as violent. Martin contends the danger of unfair prejudice substantially outweighed the testimony’s probative value. Our review is for an abuse of discretion. See, e.g., State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998); see also State v. Henderson, 696 N.W.2d 5, 10 (2005) (reviewing trial court’s ruling on the admission of evidence of prior bad acts for an abuse of discretion).

The Iowa Rules of Evidence provide that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice .... ” Iowa R. Evid. 5.403. “Probative value” measures “the strength and force of the evidence to make a consequential fact more or less probable.” State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001) (citations and internal quotation marks omitted). “Unfairly prejudicial evidence,” on the other hand,

appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.

Id. In other words, when presented with a rule 5.403 objection, the trial judge must decide “whether the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.” State v. Wright, 203 N.W.2d 247, 251 (Iowa 1972) (citation and internal quotation marks omitted).

In weighing probative value and unfair prejudice, we consider (1) the need for the proffered evidence “in view of the issues and other available evidence,” (2) whether there is clear proof it occurred, (3) the “strength or weakness of the prior-acts evidence in supporting the issue sought to be prove[d],” and (4) the degree to which the evidence would improperly influence the jury. See Henderson, 696 N.W.2d at 11. In this case, the first and fourth factors weigh heavily against admission of the evidence.

The first factor weighs especially heavily against admission of the evidence. The need for Martin’s prior robbery arrests and known violent tendencies was very weak in light of the primary issues in this case. It is true Martin’s propensity for violence makes it more probable the officer had a good reason to pat him down. It is not enough, however, that evidence makes some fact more probable to be admissible at trial; evidence is relevant only if it makes a “fact of consequence to the determination of the action” more probable. See Iowa R. Evid. 5.401. The district court assumed, without elaboration, that the officer’s decision to pat down Martin was a “fact of consequence to the determination of the action.” Nonetheless, it is unclear whether the fact the officer had a good reason to pat down Martin is a fact of consequence in Martin’s trial for possession of cocaine. On appeal, the State argues the prosecution should be permitted to “complete the story of [the] crime” and explain the officer’s “responsive action.” We need not decide this issue. Even assuming the officer’s reasons for conducting the pat-down are somehow relevant, any relevance was minimal. The jury’s primary undertaking, if not sole task, was to decide whether Martin knowingly possessed cocaine, not whether his Fourth Amendment rights were violated. The need for the proffered evidence was therefore weak because the fact it tended to prove — -that the officer had a good reason for patting Martin down — was not a primary issue in the case, if an issue at all.

In addition, the need for the proffered evidence was weak in light of the other available evidence. It was not the case that the officer had no explanation for his actions. The officer had already testified about two other valid, nonprejudicial reasons he had for conducting the pat-down: (1) this was something he regularly did and (2) Martin was wearing baggy clothing, which is sometimes used to conceal weapons. Cf Henderson, 696 N.W.2d at 11 (need for prior acts evidence was “marginal at best” because there was abundant nonprejudicial evidence in the record to show the same). At most, the court could have allowed the officer to come back to testify that he patted Martin down for his (the officer’s) own safety, but there was certainly no need to introduce evidence of one — let alone two — prior arrests.

The fourth factor also weighed against admission of the evidence in this case. The evidence of Martin’s violent nature could only serve to inflame the passions of the jury. Although not terribly inflammatory or prejudicial, the probative force of the proffered evidence was so attenuated to a primary issue in the case that its deleterious effect clearly substantially outweighed whatever minimal relevance it had.

In sum, we conclude the district court should have excluded the officer’s testimony about Martin’s prior arrests and violent tendencies. Even though the court warned Martin’s counsel that if he made “any suggestion ... that having Mr. Martin patted down was overhanded or heavy hands or inappropriate ... then [the court would] let the State go into the reasons why,” this did not circumvent the court’s duty to perform a rule 5.403 balancing test once the objection was properly made. We recognize our standard of review affords the district court wide latitude in evidentiary matters, see Sallis, 574 N.W.2d at 16, but simply asking why the officer searched the defendant did not allow the State to throw every possible reason to the jury-

3. Harmless Error

Having ruled it was error to admit the officer’s testimony, we must now decide whether this error requires us to reverse Martin’s conviction. See Henderson, 696 N.W.2d at 12. We conclude it does not.

“In cases of nonconstitutional error, reversal is required if it appears the complaining party has suffered a miscarriage of justice or his rights have been injuriously affected.” Moorehead, 699 N.W.2d at 672. .Unless the record affirmatively establishes otherwise, prejudice is presumed. Id.

Several factors affirmatively establish that Martin was not prejudiced. First, the trial judge immediately gave the jury a limiting instruction. We have often recognized the importance limiting instructions have in minimizing prejudice. See, e.g., State v. Price, 692 N.W.2d 1, 5 (Iowa 2005); State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982); Christensen, 205 Iowa at 851, 216 N.W. at 711; see also State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988) (“It is only in extreme cases that [a limiting] instruction is deemed insufficient to nullify the danger of unfair prejudice.”). Second, unlike many other cases, here the alleged bad acts — alleged violent tendencies and arrests for robbery and assault— are so unrelated to the charge at hand that they do not tend to show conforming conduct. While matters might very well be different had the erroneously admitted evidence concerned prior arrests for drug possession, here the crimes are of a different species. Because the crimes are so unrelated, there is little danger that one would assume that since Martin “did it before he probably did it again.” Henderson, 696 N.W.2d at 12 (citation and internal quotation marks omitted); see also id. at 14 (Lavorato, C.J., specially concurring) (rule against bad-acts evidence furthers its policy justifications “especially ... when similar bad-acts evidence is introduced” (emphasis in original)). Third, as discussed earlier, the evidence of Martin’s guilt in this case was overwhelming— a crack pipe containing cocaine was found in Martin’s pocket. Any error in admitting the officer’s testimony was harmless.

IV. Conclusion

We vacate the decision of the court of appeals and affirm the district court. Martin cannot show prejudice from his attorney’s failure to object to admission of the evidence tag or from the officer’s testimony about his propensity for violence.

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

      . The summer of 2003 was apparently a sticky one for Martin. The court of appeals handed down two other decisions involving Martin on the same morning. Those appeals concerned unrelated arrests for cocaine possession in June and August 2003. As in the case at bar, in the other two appeals, Martin alleged his trial counsel was ineffective for failing to object to evidence tags. We decide another one of these appeals today. See State v. Martin, 704 N.W.2d 674 (Iowa 2005). In the third appeal, however, a different panel of the court of appeals did not presume prejudice. The panel instead applied ordinary ineffective-assistance-of-counsel standards and affirmed. Martin did not seek further review, so the third case is not before us.

        . The distinction between these methods of analysis is significant because “[t]he standard for reversible error is much different in cases involving alleged ineffective assistance of counsel.” Carberry, 501 N.W.2d at 477. For example, a defendant who pursues an ineffective-assistance-of-counsel claim bears the burden of proof, not the State. See State v. Shearon, 660 N.W.2d 52, 55 (Iowa 2003). Only when “assistance of counsel has been denied entirely or during a critical stage of the proceeding” should a court "forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict” and presume prejudice. Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 1241, 152 L.Ed.2d 291, 301 (2002). No such situation is implicated here.

      . Much of the complained-of hearsay on the tag, such as the case number and the officer, is also found on Exhibit B, a laboratory receipt. In addition, Exhibit C, a laboratory report, indicated the substance in the crack pipe was a narcotic. This hearsay is thus cumulative to boot, minimizing its prejudicial impact.

      . If Martin had made chain of custody a direct issue in the case, for example, if he had challenged the integrity of the procedures surrounding the chemical testing process, then the tag may have had a more prejudicial effect on the defendant’s case.

      . In truth, the defendant only said "Objection, Your Honor, 403” which is a term of art well encompassing this balancing test.

        . On appeal, Martin also claims this evidence was inadmissible under rule 5.404. In addition, he argues his trial counsel was ineffective for not putting his objections in writing before trial. See Iowa R.Crim. P. 2.11(4) ("Motions in limine shall be filed when grounds therefore reasonably appear but no later than nine days before the trial date.”). Because we find the district court abused its discretion in admitting the evidence, we do not reach these issues.


text:
    STATE of Iowa, Appellee, v. Edward MARTIN, III, Appellant.
    No. 04-0026.
    Supreme Court of Iowa.
    Oct. 7, 2005.
    Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Heather Prendergast and Jill Dash-ner, Assistant County Attorneys, for ap-pellee.
   STREIT, Justice.

Edward Martin, III claims it was error to allow the prosecutor to ask him about a prior drug conviction during his trial for possession of cocaine. Because the probative value of admitting the prior conviction did not outweigh its prejudicial effect, we reverse and remand for a new trial.

I. Facts and Prior Proceedings

On August 9, 2003, a Waterloo police officer saw Edward Martin, III driving another man’s truck. Aware Martin’s license was suspended, the officer pulled him over. As Martin got out of the truck, he threw his arms up into the air. The officer saw a silver-or clear-colored item fly out of Martin’s hands. He then heard a “tink” sound. The officer looked in the truck bed and saw a fractured glass crack pipe on some rocks. He also saw some keys on a pillow. Martin admitted he had thrown the keys into the truck bed but denied he owned the crack pipe. Tests later revealed the crack pipe contained cocaine. A jury found Martin guilty of cocaine possession, driving while suspended, and interference with official acts. See Iowa Code §§ 124.401(5), 321.218(1), 719.1(1) (2003).

Martin appealed. First, Martin claimed there was insufficient evidence to support his conviction for cocaine possession. Second, Martin alleged his attorney was ineffective because he did not (1) “properly and completely” object to a prior drug conviction used for impeachment; (2) object to an evidence tag; and (3) argue the correct legal standard in his motion for a new trial.

The court of appeals concluded Martin’s attorney was ineffective because he did not object to the evidence tag. The court found the tag contained hearsay that unfairly summarized the State’s case, presumed prejudice, and reversed.

We granted further review to examine the evidence-tag issue. In another case filed today, we vacate a nearly identical decision of the court of appeals that concerns a similar tag in another case involving Martin. See State v. Martin, 704 N.W.2d 665 (Iowa 2005). In reviewing the issues presented on appeal in this case, however, we find we ought not reach the evidence-tag issue here. This conviction should be reversed on Martin’s impeachment claim.

II. The Merits

A. Impeachment

At trial, Martin took the stand and denied he owned the crack pipe. On cross-examination, the prosecutor attempted to impeach Martin with evidence of three prior theft convictions. Martin admitted to the convictions. The prosecutor then asked Martin if he had been convicted of possession of cocaine with intent to deliver. Martin’s counsel objected “prejudicial value.” The district court overruled the objection without elaboration, and Martin admitted to one conviction.

On appeal, Martin claims his trial counsel was ineffective because he did not object “properly and completely” to the use of the prior possession conviction. Martin maintains his case is substantially similar to State v. Daly, 623 N.W.2d 799, 803 (Iowa 2001), in which we held a trial court abused its discretion in admitting evidence of a defendant’s prior conviction. Martin claims his trial counsel was ineffective because he did not specifically address Daly.

In spite of Martin’s own argument, the court of appeals decided his trial counsel’s objection was sufficient to alert the district court to the balancing analysis required under Iowa Rule of Evidence 5.609. The court thus did not analyze the impeachment issue as an ineffective-assistance-of-counsel claim, but rather sought to determine if the trial court had abused its discretion. We agree this is the proper analysis in this case. Contrary to the court of appeals, however, we think the record clearly shows the district court abused its discretion. Daly is on point.

In Daly, the defendant stood trial for three drug charges and testified on his own behalf. 623 N.W.2d at 800. Pursuant to what is now rule 5.609, the defendant sought to exclude evidence of convictions for an identical set of crimes. See id. The rule stated then, as it does now:

For the purpose of attacking the credibility of a witness: (1) ... [Ejvidence that an accused has been convicted of ... a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Iowa R. Evid. 5.609(a)(1). The district court overruled the defendant’s motion, but we reversed because the court “fail[ed] to engage in the weighing process at all.” Daly, 623 N.W.2d at 802. We also held the probative value of the prior convictions did not outweigh the prejudicial effect to the accused. See id. at 802-03. In our analysis, we reiterated that when balancing probative value and prejudicial effect for impeachment of a testifying defendant the trial court should consider the conviction’s (1) nature, (2) bearing on veracity, (3) age, and (4) tendency to improperly influence the jury. Id.; see also State v. Axiotis, 569 N.W.2d 813, 816 (Iowa 1997); State v. Hackney, 397 N.W.2d 723, 726 (Iowa 1986).

In the case at bar, the district court did not explicitly consider the foregoing four factors. Compare Daly, 623 N.W.2d at 802 (noting trial court failed to consider factors and ultimately reversing), with Ax-iotis, 569 N.W.2d at 816 (noting “the trial court explicitly referred to and applied [the four] factors” and affirming). Even if we assume the district court considered the factors implicitly, we still find that the admission of the prior conviction was an abuse of discretion.

First and foremost, Martin’s prior conviction for possession of cocaine with intent to deliver is almost identical to the present charge of possession of cocaine. As we explained in Daly, “[tjhis fact alone could very likely have [had] a substantial effect on a jury, which, although instructed not to do so, could reasonably be expected to misuse the evidence as substantive proof of guilt.” 623 N.W.2d at 803 (citation omitted); accord Hackney, 397 N.W.2d at 726 (“When the accused takes the stand, there is an obvious danger that the jury will view evidence of a past conviction as evidence of present guilt, or as reason to convict with little concern for present guilt.”). The potential for misuse was exacerbated in this case because the prior possession conviction — unlike the theft charges — had little bearing on Martin’s veracity.

The prosecutor’s attempt to introduce the prior possession conviction must also be viewed in the context of the trial. The prosecutor had already questioned Martin about three theft convictions. This severely undercut the impeachment value of the prior possession conviction:

Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime, because of the inevitable pressure on lay jurors to believe that if he did it before he probably did so this time.

Daly, 623 N.W.2d at 802 (citation and internal quotation marks omitted). As indicated, the prior possession conviction did not directly relate to veracity — unlike the theft convictions. Introduction of the pri- or drug conviction was simply overkill and could only serve to improperly influence the jury.

In sum, we conclude the probative value of admitting Martin’s prior drug conviction could not outweigh its prejudicial effect. While we afford considerable deference to the trial court on evidentiary matters, see id., it was error to admit the prior drug conviction.

B. Harmless Error

In the alternative, the State contends any error in admitting evidence of Martin’s prior cocaine possession conviction was harmless. We disagree. The evidence against Martin was not overwhelming. The crack pipe was found in the bed of a pick up truck, an area open to any passing stranger who may have discarded the crack pipe. The jury was also presented with conflicting evidence as to whether Martin threw his keys in the bed of the truck or both his keys and a glass crack pipe in the bed of the truck. Testimony of a “tink” sound could relate to either breaking glass or a set of car keys landing on a pillow. It cannot fairly be said the admittance of Martin’s prior possession conviction did not improperly influence the jury and injuriously affect his rights. Therefore, the State has not affirmatively established Martin did not suffer prejudice. See State v. Moorehead, 699 N.W.2d 667, 672 (Iowa 2005) (outlining principles of harmless-error review in cases of non-constitutional error). We reverse and remand for a new trial without evidence of Martin’s prior drug conviction.

III. Conclusion

The district court abused its discretion when it allowed the prosecutor to impeach Martin by questioning him about his prior conviction for possession of cocaine with intent to deliver. We vacate the decision of the court of appeals, reverse the district court judgment, and remand for a new trial without use of the prior conviction. Because reversal is required, it is unnecessary to address the remaining issues Martin has raised on appeal.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; REMANDED FOR NEW TRIAL.

      . Rule 5.609 sets forth distinct balancing tests depending on whether the testifying witness is the accused, or a witness other than the accused. Daly, 623 N.W.2d at 802. When a criminal defendant testifies, crimes punishable by imprisonment in excess of one year are admissible "if the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Iowa R. Evid. 5.609(a )(1). This is in stark contrast to when a witness other than the defendant testifies. For witnesses other than the accused, the convictions are only tested by the general balancing test of Rule 5.403 and may be excluded only "if [the] probative value is substantially outweighed by the danger of unfair prejudice.” See Iowa Rs. Evid. 5.403, 5.609(a)(1); see also Daly, 623 N.W.2d at 802.


author: TERNUS, Justice. CADY, J.

text:
    In re the MARRIAGE OF Deborah Catherine RHINEHART and Richard Scott Rhinehart, Upon the Petition of Deborah Catherine Rhinehart, Appellee, and Concerning Richard Scott Rhinehart, Appellant.
    No. 04-0494.
    Supreme Court of Iowa.
    Oct. 7, 2005.

      Elizabeth A. Rosenbaum, Sioux City, for appellant.
    Barbara F. Orzechowski of Klass Law Firm, L.L.P., Sioux City, for appellee.
   TERNUS, Justice.

The appellant, Richard Scott Rhinehart (Scott), was granted further review of the court of appeals decision modifying the district court’s decree in this dissolution-of-marriage action. At this stage in the proceedings, the dispute between Scott and his former wife, appellee Deborah Catherine Rhinehart (Deborah), centers primarily on whether the trial court gave sufficient consideration to Deborah’s interest in a family trust when the court awarded alimony to Deborah and divided the marital assets. Scott criticizes the trial court’s refusal to attribute any value to Deborah’s interest in the undistributed earnings of the trust when the court allocated the parties’ property. Scott also contends Deborah’s interest in trust income should have been reflected in a reduced alimony award. Finally, Scott claims the trial court overestimated Deborah’s financial needs when it considered Deborah’s liability for college expenses.

This case was transferred to the court of appeals, which affirmed the trial court with certain modifications. The principal modification concerned a valuation error in the district court’s ruling. After Scott filed his notice of appeal, it was discovered that the trial court had placed a value of $6700 on a retirement account awarded to Scott, whereas the undisputed value of that account was actually $67,000. The court of appeals divided the extra $60,300 equally between the parties.

After considering the arguments of the parties, we agree with the trial court’s disposition of the parties’ property, as well as its alimony award. Accordingly, we disagree with the court of appeals’ modification, awarding $30,150 from the Prudential retirement account to Deborah. Because we think under all the circumstances the entire account should be awarded to Scott, we do not disturb the trial court’s decision awarding this asset to him.

-I. Background Facts and Proceedings.

Prior to trial, the parties stipulated to many issues, including custody, visitation, child support, and post-secondary education subsidies. The remaining issues— alimony and division of marital assets— generated several disputes, but we limit our discussion to the facts pertinent to those matters that remain contested on further review.

The parties were married in 1979 after Scott had finished one year of law school. Deborah was then employed as an elementary school teacher, and she has continued to teach to the present time. Scott completed law school and currently practices law with his father and another attorney. Deborah was forty-eight years old at the time of trial; Scott was forty-seven. Both are in good health. The couple has three daughters, Rachelle, Melissa, and Erika. At the time of trial, Rachelle had graduated from college and was self-sufficient; Melissa was twenty years old and a junior at the University of South Dakota; Erika was eighteen years old and a senior in high school.

The district court determined that Deborah had net annual earnings of $25,181 after various deductions, plus approximately $1546 in annual payments from the family trust. Scott’s annual earnings varied from year to year, so the trial court used a five-year net earnings average of $122,527. After considering the financial needs of the parties and their income, the court awarded Deborah traditional alimony of $1800 per month for five years, and then $1100 per month until she reaches age sixty-five. (Deborah was also awarded child support, but that ruling is not challenged on appeal.)

The proper allocation of the marital assets was also contested at trial. In rejecting an equal division of the parties’ property, the court relied primarily on the probability that Deborah would receive substantial income from the trust during her retirement years, whereas Scott would have to earn and save any funds he would need for retirement. Therefore, Deborah received property valued at $213,082, and Scott received property valued at $226,677. Included in the property assigned to each party were their respective retirement accounts.

Scott appealed, challenging the alimony award and the property division. In addition, the parties agreed the trial court had erroneously valued one of Scott’s Prudential retirement accounts. This asset, listed in the decree at a value of $6700, was actually worth $67,000. Scott and Deborah disagreed on who was entitled to the unallocated value.

The court of appeals affirmed the amount of alimony awarded by the district court, but modified the property division to account for the additional value of the Prudential account. The court of appeals concluded it was equitable to divide the extra $60,300 in the Prudential account equally, awarding $30,150 to each party. Scott’s application for further review was granted. He continues to claim the alimony award to Deborah is excessive. He also challenges the property award, claiming (1) Deborah’s interest in the undistributed earnings of the trust that accrued during the marriage should be subject to division, and (2) the entire Prudential account should be awarded to him.

II. Scope of Review.

Our review is de novo. See Zinger v. Zinger, 243 N.W.2d 639, 640 (Iowa 1976). In undertaking our review, we examine the entire record and decide anew the issues properly presented. See In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). Although this court is not bound by the findings of the trial court, we give weight to them. Id.

III. Alimony.

Scott’s principal challenge to the alimony award is the failure of the district court to consider Deborah’s “vested interest” in the trust in setting the amount of alimony. He also complains that the court considered Deborah’s obligation to pay an educational subsidy for the two younger children in determining how much financial support she needed. We address each contention separately.

A. Trust income. To decide whether the alimony was set too high in view of Deborah’s interest in the family trust, it is first necessary to determine the nature of Deborah’s interest. In 1969, Deborah’s parents, Richard and Maxine Collison, established a discretionary support trust. Maxine was the trustee, and Deborah and her eight siblings were designated as beneficiaries. After Maxine passed away in 1991, Richard and his nine children executed an amended trust agreement. Four of Deborah’s siblings were named as successor co-trustees. The co-trustees have discretion to pay out income from the trust to the beneficiaries after payment of any taxes and assessments on that income. Any payout must be in equal proportions to each of the beneficiaries. In addition, any income not distributed is to be reinvested in the principal of the trust. By its terms, the trust will not terminate during Richard’s lifetime, and will continue in existence thereafter for no longer than twenty-five years. Upon termination, the remaining corpus is to be divided equally among the surviving beneficiaries or their estates. Although the trust instrument states the trust is irrevocable, it expressly reserves to Richard, the grantor, the right to amend the trust.

Records were introduced showing that trust income was customarily allocated to the beneficiaries each year, but only part of the income was actually distributed to the beneficiaries. For example, for the tax years 1990 through 2002, the schedule K-l tax forms for Deborah showed a total of $210,976 of trust income allocated to her, but only $87,876 was actually distributed to her. The majority of the income received from the trust was used to pay income taxes attributable to the trust income and income tax penalties due to the trust’s failure to make estimated payments. Only the remainder, an average of approximately $1500 annually, was disposable income to Deborah and Scott. Income that was not distributed to the beneficiaries was used to pay trust expenses or was added to the trust principal and reinvested.

Scott argues Deborah’s interest in the trust fund “was the equivalent of a vested pension account.” He claims she has a current vested interest in the trust in the form of the reinvested income, and that interest warrants a reduction in alimony to $400 per month. He relies on our cases stating that inherited and gifted property can be considered on the issue of alimony. See, e.g., In re Marriage of Moffatt, 279 N.W.2d 15, 20 (Iowa 1979). We reject Scott’s argument, as did the court of appeals and district court.

Deborah’s interest in the trust is not vested. The trust can be unilaterally amended by her father at any time, a power that allows him to change the beneficiaries. Scott cites Iowa Code section 633.2202(1) to support his argument that Deborah cannot be removed as a beneficiary, at least not without her consent. That statute states in relevant part: “An irrevocable trust may be modified or terminated upon the consent of the settlor and all of the beneficiaries.” Iowa Code § 633.2202(1) (2003). This statute, however, is a default provision that applies only if the trust instrument contains no provision to the contrary. See id. § 633.1105 (“The provisions of a trust shall always control and take precedence over any section of this trust code to the contrary.”); Martin D. Begleiter, In the Code We Trust — Some Trust Law for Iowa At Last, 49 Drake L.Rev. 165, 183 (2001) (stating “the Trust Code is a series of default provisions, to be used when the drafter has not included in the governing instrument language controlling the situation”).

In addition to the possibility that Deborah could be removed as a beneficiary, payment of trust income is at the discretion of the co-trustees, and income not distributed is added to the principal. Therefore, Deborah has no right to the allocated, but undistributed, income from the trust. Consequently, it would not be appropriate to treat the undistributed income from the trust as a current source of financial support that would alleviate Deborah’s need for alimony. We conclude there is no basis to modify the alimony award based on Deborah’s interest in the income generated by the family trust fund.

B. Educational subsidies. Scott claims the court improperly considered Deborah’s responsibility to contribute to her children’s college educations in assessing her need for alimony. He argues requiring him to “pay $1800 per month for five years effectively results in the circumvention of Iowa Code section 598.21(5A)(3).” See Iowa Code § 598.21(5A)(3) (stating educational expenses not covered by child’s expected contribution shall be apportioned by the court to each parent). It is true the trial court noted in its discussion of the alimony issue that it took “into consideration the fact that Deborah will only be receiving child support for a relatively short time, and will then be required, in accordance with the parties’ agreement, to pay an educational subsidy for both Melissa and Erika.” When the court focused on actual financial need, however, it observed that neither party had included in their itemization of expenses “any projected costs for Melissa and Erika’s college educations.” The court’s calculation of Deborah’s need and Scott’s ability to pay did not account for the responsibility of either party for educational subsidies. Therefore, notwithstanding the trial court’s comment, we do not believe the court improperly increased Deborah’s alimony to make Scott reimburse Deborah for educational subsidies that were her responsibility. We affirm the trial court’s alimony award.

IV. Property Division.

Two issues remain with respect to the division of the parties’ marital property. First, Scott claims the district court should have included the undistributed, reinvested trust income allocable to Deborah as a marital asset, subject to division by the court. Second, Scott disagrees with the court of appeals’ decision to give Deborah $30,150 from the retirement fund awarded to him by the trial court. Again, we address each matter separately.

A. Undistributed trust income. As we noted earlier, Deborah has no present right to the undistributed income that has been added to the principal of the trust. Therefore, it is not her property so as to be subject to division by the court. Even if this income could be distributed to Deborah upon her demand, it does not automatically become a marital asset. Iowa Code section 598.21(2) provides that property inherited by or gifted to one party during the marriage is not subject to division unless it would be inequitable to the other party or the parties’ children. Scott claims it is inequitable not to award some portion of the reinvested trust income to him because he and Deborah had to pay income taxes and penalties on these funds. This argument ignores the fact that any tax liability the parties incurred as a result of the allocation of trust income to the beneficiaries was covered by distributions of trust income to Deborah. Scott has done nothing, financially or otherwise, to preserve this asset or increase its value. Cf. In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct.App.1982) (considering whether appreciated value of property-brought into the marriage was “fortuitous or due to the efforts of the parties” in deciding whether to include appreciated value as a marital asset). The trial court properly refused to divide the undistributed trust income as a marital asset. See In re Marriage of Muelhaupt, 439 N.W.2d 656, 661 (Iowa 1989) (reversing trial court’s award to husband of thirty percent of wife’s expected future inheritance).

B. Unallocated retirement account. The trial court awarded a Prudential retirement account to Scott, but listed this asset in the decree at a value $60,300 less than its actual value. This error has caused the parties to dispute whether the trial court actually intended to give Scott an asset with a value of $67,000. Because our review is de novo, it is not necessary for this court to ascertain the intent of the district court. Based upon our own review of the statutory factors relevant to an equitable distribution of marital property, we conclude the district court’s decision to award this asset to Scott should not be disturbed.

Iowa law requires that marital property be divided “equitably between the parties,” considering several factors. Iowa Code § 598.21(1). Although an equal division is not required, it is generally recognized that equality is often most equitable. See In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979). This traditional goal of equality appears to have motivated the court of appeals to divide the $60,300 equally between Deborah and Scott. That division resulted in Scott receiving approximately $13,000 more in assets than Deborah received.

The trial court, whose property division resulted in the same $13,000 difference, justified awarding more marital property to Scott on the basis that “Deborah is reasonably likely to receive substantial funds from her father’s trust [at] about the time she would retire from teaching.” It noted that Scott, on the other hand, would “have to earn and save any funds he intends to use in his retirement years.” We agree with these observations and rely on them in deciding to award the entire $60,300 to Scott.

In explaining our decision, we first note the trust currently has a value in excess of $5 million. Deborah has a future interest in one-ninth of this fund, an interest with a present value of more than $550,000. See In re Will of Uchtorff, 693 N.W.2d 790, 793 (Iowa 2005) (stating remainder interest in trust fund is a future interest); Henkel v. Auchstetter, 240 Iowa 1367, 1380, 39 N.W.2d 650, 657 (1949) (same). The principal of this trust has appreciated considerably since it was established, and there is nothing in the record to suggest that it will not continue to increase in value in future years. Although Deborah’s father has the power to change the beneficiaries of the trust, there is no evidence indicating he is likely to do so.

Clearly, it is permissible to consider Deborah’s future interest in this trust in determining an equitable division of the parties’ property. Iowa Code section 598.21(l)(i) instructs the court to consider, among other factors, the “economic circumstances of each party, including pension benefits, vested or unvested, and future interests.” (Emphasis added.) In addition, this court has in prior cases considered nonmarital assets that are available for the future support of a spouse in determining an equitable allocation of marital property. See, e.g., In re Marriage of Boyer, 538 N.W.2d 293, 296 (Iowa 1995) (holding trial court properly considered husband’s future entitlement to social security benefits having much greater value than wife’s social security benefits in deciding to award wife more marital assets); In re Marriage of Schissel, 292 N.W.2d 421, 427 (Iowa 1980) (holding dissolution court properly took into account husband’s nondivisible military retirement pay in adding $8000 to wife’s share of marital property); accord In re Marriage of Fall, 593 N.W.2d 164, 168 (Iowa Ct.App.1999) (modifying decree to award entirety of wife’s retirement account to wife in view of husband’s inherited property and his undistributed interest in family trust account). As we said in Boyer, it is appropriate to adjust the division of marital property “on the basis that one party, far more than the other, can reasonably expect to enjoy a secure retirement.” 538 N.W.2d at 296.

In the present case, then, we do not ignore the economic reality of the parties’ relative financial futures. Although Deborah has contributed to the parties’ accumulation of assets, her future need for those assets is considerably less than Scott’s need. Therefore, we think it most equitable to award Scott the full value of the Prudential account. Although this decision gives Scott $73,895 more in marital property than Deborah receives, we are confident Deborah’s retirement income will be supplemented generously by her remainder interest in the family trust fund. Because the trial court awarded the Prudential account to Scott, we find no reason to modify the trial court’s judgment.

V. Summary.

Deborah has no present right to be paid income from the trust or to demand that the undistributed income from prior years be distributed to her. Therefore, her interest in the trust does not lessen her need for financial support from Scott. In addition, we do not think the trial court set alimony at such a level that it improperly shifted Deborah’s responsibility for post-secondary education expenses to Scott. Therefore, we refuse Scott’s request that we reduce the alimony award made by the district court.

We also reject Scott’s claim that Deborah’s interest in undistributed trust income should be included as a marital asset subject to division by the dissolution court. Deborah has no enforceable right to that income. Because we think Deborah’s future interest in the trust is substantially certain to be realized, however, we affirm the trial court’s decree awarding a greater share of marital property to Scott. The fact the district court erroneously listed one of the Prudential accounts at $60,300 less than its actual value does not convince us that the trial court’s disposition of the parties’ property should be modified.

We vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except CADY and STREIT, JJ., who dissent.

CADY, J.

(dissenting in part).

I respectfully dissent from the majority’s division of the Prudential retirement account and, in turn, the division of marital assets that awards one spouse $75,000 more than the other spouse. The decision of the majority to award a greater share of the marital property to one spouse casts a dark cloud over the principle of equitable distribution of property in this state, and subverts, if not denigrates, the core concept of a marriage as an equal partnership. The approach adopted by the majority is not only a step back toward the dark ages of marital rights; it improperly intrudes into the legislative arena by undermining the legislative declaration to exclude inherited property from the divisible estate.

The concept of an equitable division of property in a dissolution of marriage does not require an equal division of property. In re Marriage of Schriner, 695 N.W.2d 493, 499 (Iowa 2005) (citing In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988)). Instead, it requires the division of property made by the court to be fair. See In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (“Property division is based on each spouse’s ‘right to “a just and equitable share of the property accumulated as the result of their joint efforts.” ’ ” (quoting In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989))); see also In re Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005) (“[I]n deciding what constitutes an equitable distribution of property, there need not be an equal division if the division is justified and equitable under all of the circumstances and factors set forth in section 598.21(1).” (Citation omitted; emphasis added.)). It recognizes that certain circumstances of a marriage can make it fair to award an unequal division of marital property at the time of divorce. See id. Yet, the key to an unequal equitable distribution is that the factors supporting the unequal division must reveal the fairness in permitting one spouse to leave the marriage with more property of the marriage than the other spouse. In other words, the factors must override the basic concept of the marriage as an equal partnership that otherwise supports an equal division of all property accumulated by either party to the marriage, except property excluded from the divisible estate by our legislature.

By all accounts, save a single factor relied upon by the majority in this ease, the circumstances of the marriage between Deborah and Scott support an equal division of marital property. Deborah and Scott were married twenty-five years. They raised three children and were attentive to their needs. Each spouse contributed to the marriage in endless ways. Deborah is an elementary school teacher, and Scott is a lawyer. They were married when Scott was still in law school. They both enjoy good health, are relatively young, and are successful in their professions. The property accumulated during the twenty-five years of their marriage'— nearly $600,000 — was, undeniably, the result of their joint efforts throughout the marriage. The alimony award to Deborah was not structured to compensate for an unequal distribution of property.

The single factor identified by the majority to support awarding Scott $75,000 more in property than awarded to Deborah is that Deborah has a future beneficial interest of $550,000 in a trust fund established by her father. This future interest, of course, is not marital property subject to the property division, but is excluded as a divisible asset. See Iowa Code § 598.21(1) (excluding “inherited property and gifts received by one party” from divisible property); In re Marriage of Schriner, 695 N.W.2d at 499 (stating a future interest that accrues during the marriage is subject to equitable distribution, but one that accrues after the divorce is not); Williams v. Massa, 431 Mass. 619, 728 N.E.2d 932, 941 (2000) (stating contingent remainder interests in a trust are “mere expectancies, comparable to a future inheritance, which are not sufficient property interests to be considered a part of the marital estate” (citation omitted)). There is no claim, or facts to support a claim, that it would be inequitable to Scott or the children not to include the inheritance in the divisible estate. See Iowa Code § 598.21(2). Additionally, Deborah’s interest in the trust is not vested, and she could be removed as a beneficiary at any time. Yet, while the majority properly excludes the inheritance from the divisible estate, it brings it into the division process through the back door by using it as a factor to justify an unequal division of the divisible property. Under the approach adopted by the majority, Deborah’s future interest supports an unequal division of property because her “future need for [the parties’ marital] assets is considerably less than Scott’s need.” In other words, Scott’s need for the marital property is greater relative to Deborah’s need.

Clearly, “the economic circumstances of each party” is a factor courts may consider in determining an equitable distribution of property. See Iowa Code § 598.21(l)(i) (listing as a factor to be considered in equitable distribution “[o]ther economic circumstances of each party including pension benefits, vested or unvested, and future interests”). Additionally, it is even permissible to consider future economic circumstances that involve nonmarital assets, such as social security and military pensions. See In re Marriage of Boyer, 538 N.W.2d 293, 294-96 (Iowa 1995); In re Marriage of Schissel, 292 N.W.2d 421, 424-27 (Iowa 1980). For example, in Boyer, we held the disproportionate future expectation of social security benefits between the spouses was an economic circumstance that could be used as a factor to support a disproportionate division of the marital assets. Boyer, 538 N.W.2d at 296. However, we were careful to point out that it was fair to do so because the wife had left the workforce after the marriage to become a fulltime homemaker and gave up her ability to build up her own social security benefits as the husband was able to do during the marriage. Id. Under these circumstances, we said it would “be ironic to bar [the wife] from having the disproportion in the anticipated benefits weighed as a general factor in [the property division].” Id.

The important point is this: future economic circumstances involving nonmarital property of one spouse are properly considered in the division of property only when there is some circumstance of the marriage that makes it fair to do so. It is not the presence or the expectation of nonmarital property that justifies an unequal equitable distribution, but it is the circumstances within the marriage that justify consideration of the nonmarital property in making a property award. In Boyer, the circumstances that made it fair to consider nonmarital property related directly to the joint-efforts concept of a marriage and the variant roles assumed by the parties.

In this case, there are no circumstances of the marriage that make it equitable for the court to consider the expected future inheritance of Deborah in dividing the marital property. Clearly, the future economic circumstances of Deborah do not address or define “Scott’s need.” Such circumstances have nothing to do with the needs of Scott. In truth, Scott has no special needs of his own that a divorce court must address to reach an equitable distribution of the property accumulated during the marriage.

The relative-need standard articulated by the majority is totally detached from the concept of equity in the dissolution of a marriage. See In re Marriage of Probasco, 676 N.W.2d at 184 (“Property division is based on each spouse’s ‘right to “a just and equitable share of the property accumulated as the result of their joint efforts.” ’ ” (quoting In re Marriage of Francis, 442 N.W.2d at 62)). As this case illustrates, this standard will necessarily lead to injustice. In this case, the existence of an inheritance only explains the nature of the economic circumstances; it does not explain the fairness of using an inheritance to divide the marital property. That explanation must come from the circumstances of the marriage. A standard that fails to consider such an analysis is inherently unfair and indirectly considers property, or a mere uncertain expectation of future property, that the law does not allow to be directly considered. The relative-need standard also means a spouse cannot equally share in marital assets when the spouse happens to have wealth independent of the marriage.

The concept of an equitable division of property has taken on a new meaning in Iowa as a result of this case, far removed from the concept declared by our legislature and articulated by this court in the past. It means that future inheritance has now been injected as a factor in the division of property in all cases. It means a spouse may be deprived of the right to share in an equal distribution of the property of the marriage at the time of the divorce when the spouse is expected to receive an inheritance in the future. It means, in this case, Deborah will not share equally with her husband in the property she equally helped to accumulate during the marriage. This is inequitable and contrary to statute.

STREIT, J., joins this dissent.

      . The court of appeals modified the district court's decree by ordering that alimony terminate upon Deborah's remarriage. Implicit in our affirmance of the district court judgment is our rejection of this modification. Should Deborah remarry, Scott will have the opportunity to seek a modification of the alimony award. See Iowa Code § 598.21(8)(g).

      . On the other hand, the trial court appropriately considered the net distributed income from the trust as funds available to Deborah to meet her financial needs.

      . Scott challenges a statement made by the district court in the decree that Scott could seek a modification of the alimony award should Deborah begin to receive substantial payments from the trust. We think the court was correct in stating Scott could seek a modification if circumstances should change substantially, but it would be premature to determine in this case the circumstances under which Scott would be entitled to a modification. See generally Iowa Code § 598.21(8)(a), (b) (permitting court to subsequently modify alimony award "when there is a substantial change in circumstances” in view of a party’s receipt of an inheritance or gift or in view of a change in a party’s income or resources). Consequently, we give this issue no further attention.

      . Prior to trial, the parties stipulated they would contribute to their children's post-secondary education expenses as provided in Iowa Code section 598.21(5A).

      . There were apparently two years in which the distributed income was insufficient to cover the parties' tax liability on the sum listed on schedule K-l. These minimal amounts, totaling less than $500, were more than offset in other years by the distributions in excess of the parties' tax liability. Therefore we do not consider the small amount of taxes paid by the parties in two years to be significant enough to affect our analysis when viewed in context.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Timothy Will KUKOWSKI, Appellant.
    No. 05-0068.
    Supreme Court of Iowa.
    Oct. 7, 2005.

      Douglas L. Tindal of Tindal & Kitchen, PLC, Washington, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellee.
   CADY, Justice.

In this appeal from a judgment and sentence for third-offense operating while intoxicated, we review a challenge to the procedure governing the imposition of an increased penalty when a defendant has prior convictions and is found guilty of the current offense. We conclude the district court abused its discretion in failing to permit the defendant to withdraw an affirmation of a prior conviction after the district court required the defendant to personally affirm or deny the previous convictions charged by the State. We reverse and remand for further proceedings.

I. Background Facts and Proceedings

Timothy Kukowski was found guilty following a jury trial of operating while intoxicated (OWI), in violation of Iowa Code section 321J.2(1), (2)(c) (2003). He was charged with third-offense OWI, based on two prior convictions. The first prior OWI conviction allegedly occurred in Oregon on October 4, 1995. The second prior OWI conviction allegedly occurred in Oregon on April 22, 1996. However, the trial was confined to the facts of the current charge.

Immediately after the jury returned its guilty verdict on the current offense, and while the jury was still seated in the courtroom, the following exchange took place:

THE COURT: Okay. At this time, then, the Court is required to ask the defendant if he is the same Timothy Will Kukowski who was previously convicted in Douglas County District Court, in the State of Oregon, for Driving Under the Influence in case number 96CR0826FE on April 22,1996?
(An off-the-record discussion was held between defense counsel and defendant.)
[DEFENSE COUNSEL]: Your Hon- or, is this something that has to be done in front of the jury?
THE COURT: Well, it has to be done in open court, and so I think that he does need to answer in front of the jury.
[DEFENSE COUNSEL]: I would like to enter a denial for him.
THE COURT: Well, I have to ask the defendant directly, according to the rule. Mr. Kukowski, are you the same Timothy Will Kukowski who was previously convicted in Douglas County District Court, in the State of Oregon, for Driving Under the Influence in case number 96CR0826FE on April 22,1996?
THE DEFENDANT: I’m not sure.
THE COURT: Okay. Are you the same Timothy Will Kukowski who was previously convicted in Douglas County District Court, in the State of Oregon, for Driving Under the Influence in case number 94Z2831 on October 4, 1995?
THE DEFENDANT: Yes.
THE COURT: You are the same?
THE DEFENDANT: '95.
THE COURT: In 1995. Okay. With respect to that conviction, were you represented by counsel?
THE DEFENDANT: Yes.
THE COURT: Okay. With respect to your response that you’re not sure, I will take that as a denial and assume you want a trial on that issue. Mr. Tindal, does your client want the same jury reconvened to hear the trial of that issue?
[DEFENSE COUNSEL]: No.

The court then dismissed the jury.

Kukowski later waived a jury trial on the prior convictions and consented to a bench trial. Prior to trial, his attorney moved to withdraw Kukowski’s admission to the 1995 conviction. Kukowski claimed the procedure used by the court to obtain the admission was flawed because it did not allow his attorney to respond to the court’s inquiry and because the court failed to engage in a colloquy with him to ensure the affirmation was voluntary and intelligent.

The district court denied the request to withdraw the admission. It concluded that Iowa Rule of Criminal Procedure 2.19(9) did not permit defense counsel to speak on behalf of a defendant, but rather required the defendant to personally affirm or deny that he or she was the same person previously convicted and state whether he or she was represented by counsel at the time.

The court then held a trial on the issue of whether Kukowski was the person convicted of driving under the influence in Oregon on April 22, 1996. It concluded he was the same person, and that he was represented by counsel. In addition, the court found Kukowski’s earlier admission was sufficient to prove he was convicted in Oregon on October 4, 1995. Therefore, the court found Kukowski guilty of third-offense OWI.

Kukowski filed a motion in arrest of judgment. He argued the court improperly interpreted Iowa Rule of Criminal Procedure 2.19(9) to require him to personally admit or deny the prior convictions. The court denied the motion and sentenced Kukowski to a period of imprisonment not to exceed five years, revoked his driver’s license, and ordered him to pay various fines.

Kukowski appeals. He claims the district court abused its discretion in denying his motion to withdraw his admission to the 1995 conviction after his attorney was prevented from responding to the judicial inquiry concerning the prior convictions following the guilty verdict. Kukowski claims the procedure used by the district court after the guilty verdict violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

II. Principles of Review

This case implicates a variety of reviewing standards. Claims having a constitutional basis are reviewed de novo. See Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005) (“Issues of constitutional dimension ... are reviewed de novo.” (citing Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001))). Yet, we normally avoid constitutional claims when an appeal can be decided on other grounds. See State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005) (“[W]e are constrained by our principles of self-restraint, including the longstanding rule that we will not decide constitutional questions when a case can be resolved on other grounds.” (citing Dubuque & D.R. Co. v. Diehl, 64 Iowa 635, 640, 21 N.W. 117, 120 (1884); State v. Button, 622 N.W.2d 480, 485 (Iowa 2001); State v. Quintero, 480 N.W.2d 50, 51 (Iowa 1992))). Claims involving the interpretation of a statute or rule are usually reviewed for errors at law. State v. Green, 680 N.W.2d 370, 372 (Iowa 2004) (citing Iowa R.App. P. 6.4; State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003)). However, in this case, the parties analogize the issue to that of a district court’s denial of a motion to withdraw a guilty plea, which is reviewed for an abuse of discretion. See State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997) (“It lies within the trial court’s sound discretion whether to grant or deny a withdrawal of a guilty plea. We do not find an abuse of discretion unless the defendant shows it was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” (Citations omitted.)); see also State v. Noonan, 246 N.W.2d 236, 237 (Iowa 1976) (“ ‘The exercise of a lower court’s discretion is not reviewable; it is only the alleged abuse of that power which is reviewable on appeal.’ ” (quoting State v. Warner, 229 N.W.2d 776, 783 (Iowa 1975))).

III. Merits

When a defendant faces a charge that imposes an enhanced penalty for prior convictions, our law, in turn, imposes a two-stage trial. State v. Monroe, 236 N.W.2d 24, 37 (Iowa 1975). This procedure, adopted by our legislature some forty years ago, was designed to ensure a fair trial and combat the unfair prejudice visited upon the defense by the past practice of permitting prior conviction allegations to be submitted to a jury at the same time as the current charge. State v. Wessling, 260 Iowa 1244, 1259, 150 N.W.2d 301, 310 (1967).

The separation of the current offense and the prior convictions is first observed in the formal indictment that charges an enhanced punishment for prior convictions. See Iowa R.Crim. P. 2.6(5) (setting forth procedure for indictments when prior convictions are alleged). The State is required to file a supplemental charge that removes any reference to prior convictions, and the first trial is then limited to the facts of the current offense, with no mention of the prior convictions. See id. (“A supplemental indictment shall be prepared for the purpose of trial of the facts of the current offense only, ... except that it shall make no mention, directly or indirectly, of the allegation of the prior conviction, and shall be the only indictment read or otherwise presented to the jury prior to conviction of the current offense.”); see also State v. Oetken, 613 N.W.2d 679, 687 (Iowa 2000) (“The purpose of the rule is to ensure an accused a fair trial on the primary charge by requiring the prosecution to file a supplemental information in which prejudicial references to a defendant’s criminal history are deleted.” (citing State v. Cook, 565 N.W.2d 611, 613 (Iowa 1997))). “If found guilty of the current offense,” the defendant is then entitled to a second trial on the prior convictions. Monroe, 236 N.W.2d at 37. The prior convictions must be proven by the State at the second trial beyond a reasonable doubt, just as the current offense must be established at the first trial. State v. Griffin, 257 Iowa 852, 854, 135 N.W.2d 77, 78 (1965) (citations omitted). Generally, the State must prove the prior convictions at the second trial by introducing certified records of the convictions, along with evidence that the defendant is the same person named in the convictions. See State v. Cameron, 167 N.W.2d 689, 693 (Iowa 1969). The State must also establish that the defendant was either represented by counsel when previously convicted or knowingly waived counsel. Id. at 694 (“To permit a conviction obtained in violation of Gideon v. Wainwright[372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)] to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case.” (Citations omitted.)).

The rule at issue in this appeal governs the procedure following the return of a guilty verdict on the current offense. It provides:

(9) Trial of questions involving prior convictions. After conviction of the primary or current offense, but prior to pronouncement of sentence, if the indictment or information alleges one or more prior convictions which by the Code subjects the offender to an increased sentence, the offender shall have the opportunity in open court to affirm or deny that the offender is the person previously convicted, or that the offender was not represented by counsel and did not waive counsel. If the offender denies being the person previously convicted, sentence shall be postponed for such time as to permit a trial before a jury on the issue of the offender’s identity with the person previously convicted. Other objections shall be heard and determined by the court, and these other objections shall be asserted prior to trial of the substantive offense in the manner presented in rule 2.11. On the issue of identity, the court may in its discretion reconvene the jury which heard the current offense or dismiss that jury and submit the issue to another jury to be later impaneled. If the offender is found by the jury to be the person previously convicted, or if the offender acknowledged being such person, the offender shall be sentenced as prescribed in the Code.

Iowa R.Crim. P. 2.19(9) (emphasis added).

The rule gives the defendant an opportunity to affirm or deny the allegations the State is obligated to prove at the second trial. Id. The inquiry providing this opportunity must be conducted in open court. Id. If the defendant denies “being the person previously convicted,” or asserts that the prior convictions were obtained without counsel and counsel was not waived, then the case proceeds to the second trial. Id. On the other hand, if the defendant affirms the validity of the prior convictions, then the case proceeds to sentencing. Id. An affirmative response by the defendant under the rule, however, does not necessarily serve as an admission to support the imposition of an enhanced penalty as a multiple offender. The court has a duty to conduct a further inquiry, similar to the colloquy required under rule 2.8(2), prior to sentencing to ensure that the affirmation is voluntary and intelligent. See State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) (“Rule [2.8(2)(6) ] governs guilty pleas and does not expressly apply to a case in which a defendant is asked to admit or deny prior convictions for habitual offender purposes under rule of criminal procedure [2.19(9)].... Nevertheless, a defendant’s admission of prior felony convictions which provide the predicate for sentencing as an habitual offender is so closely analogous to a plea of guilty that it is appropriate to refer to our rules governing guilty pleas....” (Citations omitted.)); State v. McBride, 625 N.W.2d 372, 374-75 (Iowa Ct.App.2001) (“[T]rial courts have a duty to ensure that defendants knowingly and voluntarily stipulate to having prior convictions. In order to knowingly stipulate, a defendant should have an adequate grasp of the implications of his or her stipulation.” (Citation omitted.)); see also Oetken, 613 N.W.2d at 688 (indicating trial courts have a “duty to inform the defendant as to the ramifications of an habitual offender adjudication”); State v. Bumpus, 459 N.W.2d 619, 626 (Iowa 1990) (“In State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) we recognized the fact that an admission of prior felony convictions ‘which provide the predicate for sentencing as an habitual offender is so closely analogous to a plea of guilty’ that our rules governing guilty pleas should be applied.”). Thus, much like an arraignment, the proceeding is placed on the record, and the response of the defendant informs the State of the nature and extent of its remaining obligations in the case.

In this case, the district court interpreted rule 2.19(9) to require Kukowski to personally affirm or deny the prior convictions. It refused to allow his attorney to respond on his behalf. We do not think the rule imposes such a requirement.

First, while the rule indicates the defendant “shall ... affirm or deny,” our rules of criminal procedure otherwise use specific language to indicate when a personal inquiry is required. See Iowa R.Crim. P. 2.8(2)(&) (“Before accepting a plea of guilty, the court must address the defendant personally, in open court and inform the defendant of, and determine that the defendant understands .... ”); see also id. r. 2.23(3)(d) (stating that “the defendant personally, shall be allowed to address the court” if he or she “wishes to make a statement in mitigation of punishment.”). Rule 2.19(9) excludes any reference to a personal inquiry. Second, this exclusion is consistent with the nature of the proceedings addressed by rule 2.19(9). The rule does not address the court’s responsibility to ensure an admission by an offender to a prior conviction is voluntary and intelligent, and there is no necessity for a court to make a personal inquiry until it is first determined that the defendant desires to admit the prior convictions. See Iowa R.Crim. P. 2.8(1). As previously stated, the procedure addressed by rule 2.19(9) informs the State of its remaining responsibilities in the prosecution of the case. As in an arraignment, an attorney can provide the information sought by the rule on behalf of the defendant. Finally, we strive to interpret our criminal rules to avoid any conflict with constitutional rights of the defendant. See Mitchell v. United States, 526 U.S. 314, 326, 119 S.Ct. 1307, 1313, 143 L.Ed.2d 424, 436 (1999) (“ ‘The essence of [the privilege against self-incrimination] is “the requirement that the State which proposed to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” ’ ” (quoting Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1872, 68 L.Ed.2d 359, 368 (1981))). A defendant has the right to stand mute in a rule 2.19(9) proceeding and force the State to prove prior convictions beyond a reasonable doubt, and we will not interpret the rule in a manner that could interfere with that right.

Because the district court interpreted rule 2.19(9) to require the defendant to personally address the court, we think it abused its discretion in refusing to allow Kukowski to withdraw his admission. See Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 43 (Iowa 2004) (“ ‘A ruling based on an erroneous interpretation of a ... rule can constitute an abuse of discretion.’ ” (quoting Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000))); see also State v. Henderson, 696 N.W.2d 5, 10 (Iowa 2005) (“ ‘An abuse of discretion occurs when the trial court “exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable.” ’ ” (quoting State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999))). The court denied the request to withdraw the affirmation because it believed it had no authority to permit counsel to act on behalf of the defendant. This interpretation of the rule was incorrect, and revealed that the district court refused to exercise its authority to permit a withdrawal of the affirmation based on reasons that were untenable. See Henderson, 696 N.W.2d at 10 (stating discretion is abused when exercised on grounds clearly untenable).

Notwithstanding, “[e]ven if an abuse of discretion is found, reversal is required only when the abuse is prejudicial.” ' Greene, 592 N.W.2d at 27 (citing State v. Caldwell, 529 N.W.2d 282, 285 (Iowa 1995); State v. Clark, 325 N.W.2d 381, 383 (Iowa 1982)). An abuse is prejudicial “when the rights of the defendant ‘have been injuriously affected’ or the defendant ‘has suffered a miscarriage of justice.’ ” State v. Hartsfield, 681 N.W.2d 626, 633 (Iowa 2004) (quoting State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998); State v. Hackney, 397 N.W.2d 723, 729 (Iowa 1986)). In this case, the only evidence thp district court relied on to find Kukowski was convicted of driving under the influence in 1995 was Kukowski’s admission. If the court had accepted defense counsel’s earlier denial of the prior convictions, then there would have been no other evidence before the court to support the prior conviction at issue. Thus, the error was clearly prejudicial. See Iowa R.Crim. P. 2.19(9) (“If the offender denies being the person previously convicted, sentence shall be postponed for such time as to permit a trial before a jury on the issue of the offender’s identity with the person previously convicted.”).

IV. Conclusion

The district court abused its discretion by refusing to allow Kukowski to withdraw his admission because the district court misinterpreted rule 2.19(9), and this misinterpretation prejudiced Kukowski. We do not reach Kukowski’s constitutional arguments because the case can be resolved on nonconstitutional grounds. See Williams, 695 N.W.2d at 30 (“[W]e are constrained by our principles of self-restraint, including the longstanding rule that we will not decide constitutional questions when a case can be resolved on other grounds.” (citing Dubuque & D.R. Co., 64 Iowa at 640, 21 N.W. at 120; Button, 622 N.W.2d at 485; Quintero, 480 N.W.2d at 51)). The judgment and conviction of third-offense OWI is reversed, and we remand the case for resentencing following further proceedings on the prior convictions.

REVERSED AND REMANDED.