868 S.W.2d 383 (1993)
Ex parte George James SHUTTER, Appellant.
No. 01-92-00930-CR.
Court of Appeals of Texas, Houston (1st Dist.).
December 9, 1993.
*384 Richard Haynes, Houston, for appellant.
John B. Holmes, J. Harvey Hudson, Houston, for appellees.
Before O'CONNOR, HEDGES and DUGGAN, JJ.

OPINION
DUGGAN, Justice.
This is an appeal from the trial court's denial of habeas corpus relief. Appellant had urged a plea in bar to his further prosecution for driving while intoxicated, claiming double jeopardy under article I, section 14 of the Texas Constitution. Appellant asserts that prosecutorial overreaching during his first trial compelled him to move for a mistrial, which the trial court granted. We affirm the trial court's judgment.
Appellant was charged in a first information with the offense of driving while intoxicated due to "introduction of alcohol into his body." He proceeded to trial before a jury.
In both voir dire and his opening statement, appellant's trial counsel told venire members and jurorsthereby putting the State on noticethat the defense theory was that appellant's impairment, if any, was due to prescription medication.
The trial court elected to carry appellant's motion to suppress evidence along with the case. The State's first witness, Seabrook Police Officer David C. Imbrie, testified that on April 26, 1991, he saw appellant's erratic driving; he stopped, questioned and observed appellant; he administered field sobriety tests that appellant failed; and he then arrested appellant for DWI and transported him to the Harris County Court HouseClear Lake Annex, to the intoxilizer testing facility.
The prosecutor then approached the bench, advised the court and defense counsel of his intended next questions, and obtained the court's permission to question Officer Imbrie about unsolicited statements appellant made while he was being transported to the Clear Lake Annex.
Following those questions, the prosecutor again approached the bench and advised the court and defense counsel that he intended to offer statements made by appellant to Imbrie at the police station. The court retired the jury and allowed both attorneys to question Imbrie on voir dire. After hearing Imbrie's testimony outside the jury's presence, and after watching the videotape, the court ruled that (1) appellant's unsolicited statements made before and after the videotape were admissible, and (2) the audio portion of the video occurring after appellant received a Miranda warning was inadmissible.
The jury was recalled, and the State's evidence resumed. After the edited videotape was shown, the prosecutor began to elicit testimony from Imbrie about events occurring immediately after the videotape was concluded. Imbrie testified that he took appellant from the Clear Lake Annex to the Seabrook jail. The colloquy continued:
[Prosecutor]: Okay. Let's go to the Seabrook Jail. What happened first at the Seabrook Jail?
[Witness]: After being unhandcuffed at the Jail, we attempted to book [appellant] in.
[Prosecutor]: Okay. Were you successful in booking [appellant] into Jail?
[Witness]: Not completely, no, sir.
[Prosecutor]: And, why not?
[Witness]: Well, [appellant] refused to answer many questions on theon the booking sheet.
[Prosecutor]: What type of questions did you ask him?
[Witness]: Normal questionsname and address, social security number, religion, if *385 he was under a doctor's care or taking any prescribed medication.

[Defense counsel]: Excuse me a moment, your Honor. May we approach the bench?
(Emphasis added.) Out of the jury's presence, appellant's counsel moved for a mistrial, asserting that the prosecutor had injected before the jury, as evidence of appellant's guilt, the fact that appellant had exercised his post-Miranda right to remain silent at the police station and that his silence, when questioned about "taking any prescribed medication" was being used "as evidence to prove up [the State's] theory of the case," contradicting what appellant had suggested as its own theory in opening statement.
The trial court acknowledged that police have the right to ask booking questions. Sims v. State, 735 S.W.2d 913, 917-18 (Tex. App.Dallas 1987, pet. ref'd) (no fifth amendment violation shown where police asked defendant's name, address, telephone number, place of employment, and physical condition). However, he opined that appellant's post-arrest silence was being inadmissibly offered against him,[1] and granted appellant's motion for mistrial.
Within two weeks of the mistrial, the prosecutor filed a new information, cause number 92-01359, which alleged in six paragraphs that appellant drove while intoxicated due to the introduction into his body of: (1) alcohol; (2) a combination of alcohol and drugs; (3) a combination of alcohol and benadryl; (4) a combination of alcohol and darvaset; (5) a combination of alcohol, darvaset, and benadryl; or (6) a combination of darvaset and benadryl. It was undisputed that the State learned of the possible additional or alternate combinations from appellant's trial counsel's jury panel voir dire and opening statement.
Appellant then filed his application for habeas corpus relief in the trial court, requesting an evidentiary hearing and discharge from further prosecution under either the original or the new information. The trial court granted the application for writ and conducted an evidentiary hearing. During the hearing, the trial court stated, in colloquy with counsel, his earlier mistaken understanding that the prosecutor had asked Officer Imbrie specifically whether appellant refused to answer a question about his medication. In fact, the prosecutor did not ask, and Officer Imbrie did not state, which questions on the booking sheet appellant answered or declined to answer. The prosecutor testified that he had sought to elicit from Officer Imbrie, based on their pretrial or recess conversations, that appellant was unable to answer some routine booking questions because he was too intoxicated to do so. At the conclusion of the habeas hearing, the trial court found the following facts:
(1) the prosecutor "was very inexperienced at the time [of trial]"; (2) Officer Imbrie's response was "somewhat unresponsive" to the question asked; (3) the prosecutor "did not intend to cause a mistrial or provoke [appellant's counsel] to seek a mistrial" by the question; (4) the prosecution under the original information "could have gone either way"; and (5) based on the credible evidence at the hearing, "[there was no] gross negligence or intentional misconduct by the State in asking that question that caused the mistrial."
(Emphasis added). The trial court then denied appellant's requested relief on his plea in bar.
In his first point of error, appellant asserts the trial court erred in denying his plea of double jeopardy by using an erroneous standard, or test, for determining whether jeopardy has attached.
Appellant urges that jeopardy attached because the prosecutor wrongly provoked the mistrial, and that the trial court erroneously used the federal standard set out in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), which is narrower than the Texas standard stated set out in Chvojka v. State, 582 S.W.2d 828 (Tex.Crim.App. [Panel Op.] 1979). Oregon v. Kennedy holds that "the circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the [prosecutorial] *386 conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial." 456 U.S. at 679, 102 S.Ct. at 2091 (emphasis added). Using this standard was error, he asserts, because Texas has not expressly adopted the restrictive Kennedy standard when a plea of double jeopardy is based solely on state constitutional grounds.
The correct Texas standard, appellant asserts, is set out in Chvojka. There the court stated:
Prosecutorial overreaching will be found where the government, through "gross negligence or intentional misconduct," caused aggravated circumstances to develop which "seriously prejudice a defendant," causing him to "reasonably conclude that a continuation of the tainted proceedings would result in a conviction."
582 S.W.2d at 830-31 (citations omitted) (quoting United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976)).[2]
Appellant argues that before Oregon v. Kennedy, the Texas and federal double jeopardy standards were the same. That standard was that, if a defendant was forced to request a mistrial because of judicial or governmental overreaching, a second prosecution was barred. "Overreaching" included: (1) judicial or prosecutorial error designed to cause a mistrial and hopefully secure a more favorable forum, or (2) prosecutorial injection of enough unfair prejudice into the trial to insure conviction. Dinitz, 424 U.S. at 608, 96 S.Ct. at 1080; United States v. Jorn, 400 U.S. 470, 485, n. 12, 91 S.Ct. 547, 557 n. 12, 27 L.Ed.2d 543 (1971); United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 1590 n. 3, 12 L.Ed.2d 448 (1964); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963).
The parties dispute whether the Texas Court of Criminal Appeals has adopted Oregon v. Kennedy as the controlling precedent regarding a plea of double jeopardy under article 1, section 14 of the Texas Constitution. In three post-Kennedy decisions, the court has not explicitly adopted the narrowed federal rule. See Zimmerman v. State, 750 S.W.2d 194, 209-10 (Tex.Crim.App.1988) (noting the viability of the "prosecutorial overreaching exception to the general rule"); Collins v. State, 640 S.W.2d 288, 290 (Tex. Crim.App. [Panel Op.] 1982) ("as a matter of federal law, the ultimate fact question, the intent of the prosecutors, is a question to be resolved by the finder of fact"); Anderson v. State, 635 S.W.2d 722, 724 (Tex.Crim.App. 1982). The majority opinion cited Dinitz and Chvojka, but not Kennedy, and found that the trial court, as fact finder, had a basis in the State's evidence to "clearly negate appellants' allegations of prosecutorial overreaching by means of intentional misconduct or gross negligence". Id. at 726.
In the present case, the trial court found as fact both that: (1) the prosecutor "did not intend to cause a mistrial or provoke [appellant's counsel] to seek a mistrial"; and (2) "[there was no] gross negligence or intentional misconduct by the State." These findings are fatal to appellant's argument under either pre- or post-Kennedy analysis. Therefore, because the trial court found (1) no prosecutorial overreaching, which would be a basis for jeopardy under the pre-Kennedy standard, and (2) no prosecutorial intent to cause or provoke a mistrial, no gross negligence, and no intentional misconduct, a basis for jeopardy under the post-Kennedy standard, we need not decide whether Texas has adopted the federal rule as the measure of a defendant's double jeopardy protection under state law.
We overrule appellant's first point of error.
In his second point of error, appellant asserts "the trial court erroneously applied the Kennedy standard in determining that the prosecutor's actions were not intended to provoke a mistrial."
Appellant argues that "if there is some evidence of a prosecutor's intent to provoke a mistrial, it is incumbent upon the State to disprove that intent beyond a reasonable *387 doubt." We disagree. A relator who seeks habeas corpus relief on double jeopardy grounds, claiming that he was forced to seek a mistrial by virtue of governmental or judicial overreaching, bears the burden of producing evidence to bring himself within the exception to the general rule that a mistrial is no bar to further prosecution. See Shaffer v. State, 477 S.W.2d 873, 875 (Tex.Crim.App.1971) (in a case involving special plea of double jeopardy, "case law requires that the defendant go forth with evidence in support of his allegation of former jeopardy").
The trial court is the sole judge of credibility of the witnesses testifying, and his ruling should not be overturned absent a clear abuse of discretion. Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 112 S.Ct. 279, 116 L.Ed.2d 231 (1991). This Court is not at liberty to disturb any finding that is supported by the record. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App.1980), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981).
The evidence is sufficient to support the trial court's findings of fact. Because we find no abuse of discretion, the trial court's order denying habeas corpus relief will stand.
We overrule appellant's second point of error.
We affirm the trial court's judgment.
NOTES
[1]  E.g., Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex.Crim.App.1986); see Womack v. State, 834 S.W.2d 545, 546 (Tex.App.Houston [14th Dist.] 1992, no pet.).
[2]  In fact, Chvojka's quoted reference to "gross negligence or intentional misconduct" is derived from both United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir.1976), and United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973), and is incorrectly attributed to Dinitz, where the phrase never appears.


                          STATE OF MICHIGAN

                           COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 17, 2017
              Plaintiff-Appellee,

v                                                                  No. 332858
                                                                   Oakland Circuit Court
JACKIE RICHARD MAYBEE,                                             LC No. 2015-256793-FH

              Defendant-Appellant.

Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

       A jury convicted defendant of second-degree home invasion, MCL 750.110a(3).
Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 52 months to 30 years’
imprisonment. Defendant appeals, and for the reasons provided below, we affirm.

                               I. CONFRONTATION CLAUSE

       Defendant argues that the introduction of a statement made by Cassandra Model, another
individual involved in the home invasion, to Deputy Canegin1 was violative of his right to
confrontation and necessitates a new trial because she did not testify at trial. We disagree.

        At trial, the prosecution examined Deputy Randy Leppek. During the questioning,
Deputy Leppek stated that during the traffic stop, he talked to the two male passengers
(defendant and Rolando Gerrero) in the green SUV while Deputy Canegin took the female
driver, Model, to his vehicle for questioning. Deputy Leppek also stated that he did not remove
the two males from the vehicle until he heard from Deputy Canegin that Model admitted to
participating in the breaking and entering.

        While defendant objected to the testimony, he only objected on hearsay grounds—not on
confrontation grounds. Accordingly, the issue is not preserved, and our review is for plain error
affecting defendant’s substantial rights. People v Walker (On Remand), 273 Mich App 56, 65-

1
  Deputy Canegin’s first name and the proper spelling of his last name were not specified in the
lower court record.

                                               -1-
66; 728 NW2d 902 (2006); People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). Thus, a
defendant must show that the plain error affected the outcome of the lower court proceedings.
Walker, 273 Mich App at 66.

         The Sixth Amendment of the United States Constitution, applied to the states through the
Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” US Const, Am VI; People v Burton,
219 Mich App 278, 287; 556 NW2d 201 (1996). The Confrontation Clause applies, not only to
in-court testimony, but also to out-of-court statements introduced at trial. Crawford v
Washington, 541 US 36, 50-51; 124 S Ct 1354; 158 L Ed 2d 177 (2004). But these requirements
only are implicated when the proffered statement is testimonial in nature. Walker, 273 Mich
App at 60.

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency. They
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal prosecution.
       [Davis v Washington, 547 US 813, 822; 126 US 2266; 165 L Ed 2d 224 (2006).]

       However, we need not decide whether Model’s statement to Deputy Canegin was
testimonial because, assuming it was testimonial, defendant cannot show how the statement’s
admission affected his substantial rights. Defendant claims that without Model’s statement, there
was insufficient evidence to identify him as a perpetrator of the crime because J. B. McClure,
who saw the three perpetrators get away in the green SUV, never identified defendant at trial.
But defendant ignores the substantial, other evidence linking defendant as one of the
perpetrators. While McClure did not get a good look at the perpetrators’ faces, he saw that there
were two males and one female. He saw that one male sat in the backseat of the green SUV, a
male wearing an orange shirt sat in the front passenger seat, and the female sat in the front driver
seat. When police pulled a green SUV over shortly thereafter, a female (Model) was in the
driver seat, a man wearing an orange shirt (defendant) was in the front passenger seat, and
another man was in the back seat. Furthermore, the police found items in the vehicle that
matched the items that were reported missing from the home that was broken into. Therefore,
defendant has not demonstrated that his substantial rights were affected by the admission of
Model’s statement to Deputy Canegin, because the jury unquestionably would have convicted
defendant based on this other evidence.

        Moreover, as previously noted, the Confrontation Clause, in general, bars the admission
of testimonial statements by witnesses who did not testify at trial. See People v Nunley, 491
Mich 686, 698; 821 NW2d 642 (2012). Here, there is no question that Model did not testify at
trial. However, she was present. Indeed, she was brought to the court by the Michigan
Department of Corrections and was available to testify at trial. Defendant and his defense
counsel stated on the record that they decided not to call Model as a witness. This decision was
made after Deputy Leppek testified and after Model’s statement to Deputy Canegin was admitted
into the record. Accordingly, defendant cannot now complain that Model did not testify at trial
when she was present and available but defendant simply chose to not call her to the stand. See

                                                -2-
Melendez-Diaz v Massachusetts, 557 US 305, 313 n 3; 129 S Ct 2527; 174 L Ed 2d 314 (2009)
(“The right to confrontation may, of course, be waived . . . .”); People v Carter, 462 Mich 206,
215; 612 NW2d 144 (2000). Consequently, because Model was present and available to testify,
defendant’s prior decision to not call her to the stand, when she was available, renders his present
reliance on the Confrontation Clause misplaced.2

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that there was insufficient evidence to convict him of this crime
because there was not sufficient circumstantial evidence that identified him as a perpetrator or
aider and abettor to second-degree home invasion. We disagree.

        This Court will review a challenge to the sufficiency of the evidence de novo. People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). The evidence is reviewed “in a light
most favorable to the prosecutor to determine whether any trier of fact could find the essential
elements of the crime were proven beyond a reasonable doubt.” People v Robinson, 475 Mich 1,
5; 715 NW2d 44 (2006). It is the role of the trier of fact to weigh evidence and evaluate the
credibility of witnesses. People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008).

        The elements of second-degree home invasion are: (1) “the defendant entered a dwelling
by breaking or without the permission of any person in ownership or lawful possession or control
of the dwelling,” and (2) the defendant “did so with the intent to commit a felony, larceny, or
assault therein or committed a felony, larceny, or assault while entering, present in, or exiting the
dwelling.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013); see also MCL
750.110a(3). Further, it is well established that identity is an element of every offense. People v
Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008), citing People v Oliphant, 399 Mich 472,
489; 250 NW2d 443 (1976), and People v Kern, 6 Mich App 406, 409; 149 NW2d 216 (1967).
“[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Lee, 243 Mich App 163, 167-168; 622
NW2d 71 (2000).

       Defendant argues that there was insufficient evidence presented to allow the jury to
conclude that he participated in the home invasion. It is important to note that defendant was
charged as acting as a principle in the home invasion or, alternately, as an aider and abettor.
Here, there was sufficient evidence to prove that he, at a minimum, aided and abetted in the

2
   This situation is distinguishable from caselaw that provides that it is not a defendant’s
responsibility to procure witnesses or to subpoena them. See People v Fackelman, 489 Mich
515, 529 n 7; 802 NW2d 552 (2011) and cases cited therein. Unlike in these cited cases, the
prosecution here successfully took steps to ensure that Model appeared at court. It was only
defendant’s decision that resulted in her not testifying at trial. We decline to extend the rationale
cited in Fackelman to this circumstance. Indeed, the United States Supreme Court has stated that
under the Confrontation Clause, “The prosecution must produce [those witnesses used against
the defendant] . . . .” Melendez-Diaz, 557 US at 313-314 (emphasis altered). That is precisely
what the prosecution did here, thereby fulfilling its constitutional obligation.

                                                -3-
commission of the crime. An individual who procures, counsels, aids, or abets in the
commission of a crime may be convicted and punished as if he or she directly committed the
crime. Robinson, 475 Mich at 5-6; see also MCL 767.39. The elements of aiding and abetting
are the following:

       (1) the crime charged was committed by the defendant or some other person; (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime; and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time that [the
       defendant] gave aid and encouragement. [People v Plunkett, 485 Mich 50, 61;
       780 NW2d 280 (2010) (quotation marks and citations omitted).]

        Defendant’s reliance on the fact that “no one identified [defendant] as being present at the
scene of the [breaking and entering]” is misplaced. Circumstantial evidence allowed the jury to
conclude that defendant assisted and intended the commission of the crime. McClure testified
that he saw a person in an orange shirt, along with two other individuals, carry large amounts of
“stuff” to a green SUV that was parked in his driveway. After the individuals drove off,
McClure called 911 and notified them of what he saw. A short time later, police found a green
SUV with three individuals inside and effectuated a traffic stop. The positions of the people in
the vehicle (female in the front driver seat, male wearing orange shirt in the front passenger seat,
other male in rear seat) matched what McClure witnessed. Plus, the items found inside the
vehicle matched the missing items from the house that was robbed. Thus, with the man in the
orange shirt having been seen carrying items to the vehicle with the other individuals and
defendant later having been identified as the man wearing the orange shirt, the evidence was
sufficient to allow the jury to conclude that defendant participated in the home invasion and was
not “merely present” as defendant claims.3

                          III. GREAT WEIGHT OF THE EVIDENCE

        Defendant relies upon the same arguments that he makes in support of his claim that
there was insufficient evidence to convict defendant to argue that the verdict is against the great
weight of the evidence. We disagree. In a jury trial, an objection going to the weight of the
evidence can only be raised in a motion for a new trial before the trial court. People v Norman,
184 Mich App 255, 257; 457 NW2d 136 (1990). Defendant attempted to preserve this issue by
filing a motion to remand concurrently with his brief on appeal in this Court. Filing a motion to
remand in this court does not preserve this issue, and failure to raise the issue by the appropriate
motion forfeits the issue on appeal. People v Musser, 259 Mich App 215, 218; 673 NW2d 800
(2003). Because defendant failed to bring a motion in the trial court, this issue is not preserved
for appeal. Norman, 184 Mich App at 257. Therefore, our review is limited to plain error
affecting defendant’s substantial rights. Musser, 259 Mich App at 218, citing People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).

3
  For the same reasons, the trial court did not err when it denied defendant’s motion for a
directed verdict.

                                                -4-
       The following test is used to determine whether the verdict at issue is against the great
weight of the evidence: “whether the evidence preponderates so heavily against the verdict that it
would be a miscarriage of justice to allow the verdict to stand.” People v Lacalamita, 286 Mich
App 467, 469; 780 NW2d 311 (2009), citing People v McCray, 245 Mich App 631, 637; 630
NW2d 633 (2001).

        As fully discussed above, the evidence clearly showed that defendant was a willing
participant or aider and abettor in the home invasion. Any claim that defendant was “merely
present” with the stolen items is belied by the record evidence. McClure testified that he saw a
person matching defendant’s description, along with two other individuals, carry large amounts
of household “stuff” to the green SUV. At a subsequent traffic stop, it was discovered that the
vehicle contained items that were stolen from McClure’s neighbor’s house. As a result, it is
clear that the evidence does not preponderate against the verdict and, instead, firmly establishes
that defendant is guilty of the charged crime.

       Affirmed.

                                                            /s/ Henry William Saad
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Thomas C. Cameron

                                               -5-


250 P.3d 1139 (2011)
Patricia MOREHART and Colleen Duffy, Petitioners,
v.
The Honorable Janet E. BARTON, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,
The State of Arizona and William Craig Miller, Real Parties in Interest.
No. CV-10-0327-PR.
Supreme Court of Arizona, En Banc.
April 29, 2011.
*1140 Crime Victims Legal Assistance Project by Douglas L. Irish, Keli B. Luther, Tempe, Attorneys for Patricia Morehart and Colleen Duffy.
Carmen L. Fischer Attorney at Law by Carmen L. Fischer, Phoenix and Kessler Law Offices by Eric W. Kessler, Sandra Hamilton, Mesa, Attorneys for William Craig Miller.
William G. Montgomery, Maricopa County Attorney, by Lisa Marie Martin, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest State of Arizona.
Arizona Capital Representation Project, by Natman Schaye, Tucson, Attorney for Amici Curiae National Association of Criminal Defense Lawyers, Southern Center for Human Rights, Oregon Capital Resource Counsel, South Carolina Capital Trial Division, Missouri Association of Criminal Defense Lawyers, New Mexico Criminal Defense Lawyers, Texas Defender Services, Arizona Attorneys for Criminal Justice, and Arizona Capital Representation Project.
Stevens & Van Cott, PLLC by Charles Van Cott, Scottsdale, Attorneys for Amicus Curiae National Crime Victim Law Institute.

OPINION
BALES, Justice.
¶ 1 Arizona's Constitution entitles victims "[t]o be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present." Ariz. Const. art. 2, § 2.1(A)(3). The issue here is whether this provision entitles victims to attend an ex parte hearing on the return of summonses issued as part of defense counsel's pretrial investigation of mitigation evidence in a capital case. Because the defendant has no right to attend such a purely procedural hearing, victims also have no right to attend.

I.
¶ 2 William Craig Miller is charged with five counts of first degree murder and the State seeks the death penalty. In 2006, the trial court found Miller indigent and approved his ex parte motion for appointment *1141 of a mitigation specialist and a neurologist. See Ariz. R.Crim. P. 15.9(b) (authorizing ex parte application for appointment of investigators and experts for indigent capital defendants upon showing of need for confidentiality).
¶ 3 In April 2010, Miller filed a motion for an ex parte hearing related to "the defense investigation into mitigation matters." The State did not oppose this request, but surviving family members (the "Victims") of two of the murder victims objected, arguing that "[u]nder the Victims' Bill of Rights, any ex parte hearing excluding the crime victims is unconstitutional." The trial court initially found that it could not determine from Miller's motion whether an ex parte hearing was appropriate and directed defense counsel to submit an ex parte motion detailing the matters defense counsel wanted to discuss. Defense counsel filed such a motion under seal.
¶ 4 At a June 2010 pretrial conference, the trial court heard argument on the request for an ex parte hearing. The trial court noted that the request concerned out-of-state summonses. Under Arizona Revised Statutes ("A.R.S.") section 13-4093, Arizona courts may issue certificates to be presented to out-of-state courts to summon witnesses for Arizona criminal proceedings. The proposed hearing here evidently concerned Miller's efforts to obtain possible mitigation evidence from third parties.
¶ 5 The Victims again objected to the ex parte hearing. The trial court explained that it would address any matters that concerned trial scheduling in open court, but that Arizona law allowed it to consider ex parte matters related to the defendant's discovery and procurement of mitigation, and it accordingly granted Miller's request for an ex parte hearing.
¶ 6 The Victims sought special action relief in the court of appeals, which accepted jurisdiction and vacated the trial court's order. Morehart v. Barton, 225 Ariz. 269, 273 ¶ 12, 236 P.3d 1216, 1220 (App.2010). The court noted that the Arizona Constitution gives victims the right to be present at "all criminal proceedings where the defendant has the right to be present." Id. at 271 ¶ 6, 236 P.3d at 1218 (quoting Ariz. Const. art. 2, § 2.1(A)(3)); see also A.R.S. § 13-4420 (stating that victims have right "to be present throughout all criminal proceedings in which the defendant has the right to be present"). Although Rule 15.9(b) contemplates ex parte proceedings in some circumstances, the court of appeals said that this rule does not displace a victim's right to be present at "all criminal proceedings." 225 Ariz. at 271-72 ¶ 7, 236 P.3d at 1218-19.
¶ 7 The court of appeals found support for its conclusion in State v. Apelt, 176 Ariz. 349, 365, 861 P.2d 634, 650 (1993), which held that a defendant has no constitutional right to ex parte proceedings and noted that the Arizona Rules of Criminal Procedure require a defendant to disclose all witnesses and defenses. Morehart, 225 Ariz. at 272 ¶ 8, 236 P.3d at 1219. The court of appeals acknowledged that it may sometimes be necessary to balance the competing constitutional rights of victims and the defendant, but found that the record here did not establish that the defendant's constitutional rights would be jeopardized. Id. at 272-73 ¶ 11, 236 P.3d at 1219-20.
¶ 8 We granted review to determine whether the Victims are entitled under Arizona law to attend an ex parte hearing concerning defendant's pretrial mitigation discovery. The issue is one of first impression and statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.
¶ 9 Arizona has been a national leader in providing rights to crime victims. Adopted as a constitutional amendment in 1990, the Victims' Bill of Rights provides crime victims the right "[t]o be treated with fairness, respect and dignity ... throughout the criminal justice process." Ariz. Const. art. 2, § 2.1(A)(1); see also 1991 Ariz. Sess. Laws, ch. 229, § 2(2) (noting that the Victims' Bill of Rights seeks to ensure that "all crime victims are provided with basic rights of respect, protection, participation, and healing of their ordeals"). One of the rights specifically afforded to victims is "[t]o be present at and, upon request, to be informed *1142 of all criminal proceedings where the defendant has the right to be present." Ariz. Const. art. 2, § 2.1(A)(3). Similarly, A.R.S. § 13-4420 provides that "[t]he victim has the right to be present throughout all criminal proceedings in which the defendant has the right to be present." The Arizona Rules of Criminal Procedure also acknowledge a victim's "right to be present at all criminal proceedings," Ariz. R.Crim. P. 39(b)(4), "at which the defendant has the right to be present," id. 39(a)(2) (defining "criminal proceeding").
¶ 10 At issue here is an ex parte hearing on the return of summonses related to a capital defendant's pretrial investigation of potential mitigation evidence. A defendant is entitled to present mitigation in a capital case and the state must provide indigent defendants with resources to do so. See, e.g., Dawson v. Delaware, 503 U.S. 159, 167, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992) (observing that "a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death"); Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (concluding that state must provide indigent defendants with the "basic tools of an adequate defense"); State v. Bocharski, 200 Ariz. 50, 62 ¶ 61, 22 P.3d 43, 55 (2001) (noting that "Arizona's justice system must provide adequate resources to enable indigents to defend themselves in a reasonable way" in capital cases). Because mitigation evidence is a key component of the defense in a capital case, defense counsel must conduct an exhaustive investigation of the client's past in order to provide effective assistance of counsel for purposes of the Sixth Amendment. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
¶ 11 Consistent with this constitutional framework, Rule 15.9 addresses the appointment of investigators and expert witnesses for indigent defendants in capital cases. As initially adopted in 2002, this Rule did not provide for ex parte proceedings, which prompted concerns that defense counsel might improperly be required to disclose privileged or work product material in seeking to obtain mitigation evidence. Accordingly, the Rule was amended to expressly allow ex parte proceedings upon a "proper showing . . . [of a] need for confidentiality," and directing that "any such proceeding, communication, or request shall be recorded verbatim and made a part of the record available for appellate review." Ariz. R.Crim. P. 15.9(b); cf. Ariz. Sup.Ct. R. 81, Code of Judicial Conduct, Rule 2.9(A)(5) (providing "[a] judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so").
¶ 12 We assume for purposes of this case that the trial judge correctly determined that a proper showing had been made to justify an ex parte hearing on the return of the out-of-state summonses. Rule 15.9(b) recognizes that certain requests may be made by ex parte motions (e.g., a request for approval of payments for an investigator where there is a need for confidentiality), and courts often resolve such matters without a hearing. Here, the judge ordered an ex parte hearing only after considering a motion detailing why confidentiality was required, and the judge explained in open court that the hearing would be limited to mitigation discovery matters. Rule 15.9(b), we further assume, authorizes such a proceeding ancillary to the court's appointment of a mitigation specialist and its approval of funds for a mitigation investigation. Indeed, the State has not claimed that it was entitled to attend the hearing. The issue instead is whether exclusion of the Victims would violate their rights "to be present at" a criminal proceeding "where the defendant has the right to be present." Ariz. Const. art. 2, § 2.1(A)(3).
¶ 13 A criminal defendant generally has the right to be present in the courtroom during proceedings in his case. U.S. Const. amend. VI; id., amend. XIV; Ariz. Const. art. 2, § 24; Ariz. R.Crim. P. 19.2. Although the right to be present is largely rooted in the Sixth Amendment's Confrontation Clause, the Fourteenth Amendment's Due Process Clause also entitles the criminal defendant to be present when "not actually confronting witnesses or evidence against him." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Thus, "a defendant is guaranteed the right to *1143 be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Id.
¶ 14 The right to be present extends to those proceedings at which the defendant's "presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); State v. Dann, 205 Ariz. 557, 571-72 ¶ 53, 74 P.3d 231, 245-46 (2003). Nonetheless, a criminal defendant's constitutional right to be present does not extend to purely procedural hearings. E.g., United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam); Snyder, 291 U.S. at 105-06, 54 S.Ct. 330; Dann, 205 Ariz. at 571-72 ¶ 53, 74 P.3d at 245-46; State v. Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981).
¶ 15 Stincer, Gagnon, and Dann indicate that a hearing on a return of summonses issued in the pretrial investigation of mitigation is not the type of proceeding at which the defendant has a right to be present. In Stincer, the defendant was excluded from an in-chambers hearing at which the trial court preliminarily determined that two child victims of a sexual offense were competent to testify. 482 U.S. at 732-33, 107 S.Ct. 2658. Defense counsel attended the competency hearing and cross-examined the witnesses. Id. In these circumstances, the Court held that the defendant's right to be present had not been violated because his involvement in the competency hearing would not have had a "`relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Id. at 745, 107 S.Ct. 2658 (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. 330).
¶ 16 In Gagnon, the trial court excluded defendants from an in camera inquiry concerning juror prejudice. 470 U.S. at 523, 105 S.Ct. 1482. After a juror expressed concern that one of four defendants in an alleged drug distribution conspiracy was sketching juror portraits, the judge ordered the defendant to stop sketching. Id. At defense counsel's request, the trial court briefly interviewed the juror in camera to ensure the sketching had not prejudiced the juror. Id. Defendant Gagnon's counsel was present during the in camera inquiry. Id. at 524, 105 S.Ct. 1482. On appeal, each defendant claimed that the in camera discussion with the juror violated his right to be present at all stages of the trial. Id. at 524-25, 105 S.Ct. 1482. Rejecting this argument, the Supreme Court observed that "`[t]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right,'" and that the defendants' presence "was not required to ensure fundamental fairness or a `reasonably substantial ... opportunity to defend against the charge.'" Id. at 526-27, 105 S.Ct. 1482 (second alteration in original) (citations omitted).
¶ 17 More recently, in Dann we considered a defendant's exclusion from "a series of pretrial conferences" and "a series of side-bar and in-chambers conferences held during jury selection and trial." 205 Ariz. at 571 ¶ 52, 74 P.3d at 245. Discussing the defendant's federal constitutional rights to be present at trial, this Court noted:
[T]he right does not extend to in-chambers pretrial conferences, . . . to brief bench conferences with attorneys conducted outside the defendant's hearing, and to various other conferences characterized as relating only to the resolution of questions of law. When reviewing a defendant's absence from preliminary hearings, the court should examine the record as a whole and determine whether [the] accused suffered any damage by reason of his absence.
Id. at 571-72 ¶ 53, 74 P.3d at 245-46 (alterations in original) (internal quotation marks and citations omitted). Although we emphasized in Dann that "[a] trial judge should make every effort to honor a defendant's request to attend all proceedings," id. at 575 ¶ 72, 74 P.3d at 249, we held that "[a] defendant does not have a constitutional right to be personally present" during all conferences concerning procedural issues, id. at 573-75 ¶¶ 61, 64-66, 68, 74 P.3d at 247-49 (internal quotation marks omitted).
*1144 ¶ 18 Here defense counsel conceded that Miller had no right to be present at the hearing on the return of out-of-state summonses related to his mitigation investigation. This conclusion is inescapable given the case law. The hearing would concern purely procedural matters that do not implicate Miller's right to confront witnesses and evidence against him and that have no "relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder, 291 U.S. at 105-06, 54 S.Ct. 330. Defense counsel represented, and the Victims do not dispute, that hearings on the return of out-of-state summonses are often canceled after being scheduled because the production of documents obviates the need for a hearing. The trial court's comments reflect that it did not intend to discuss trial scheduling or any substantive issue ex parte. Thus, the contemplated hearing is not one "where the defendant has the right to be present." Ariz. Const. art. 2, § 2.1(A)(3).
¶ 19 The Victims argue that they are entitled to attend the hearing regardless of Miller's right to attend because his counsel will be present. We agree with the Victims that they cannot be excluded from a proceeding that the defendant is entitled to attend merely because the defendant voluntarily waives his presence. But the Victims argue further that their right to attend proceedings "where the defendant has a right to be present" should include proceedings where either the defendant or defense counsel is entitled to appear. This argument, however, is refuted by the language of the Victims' Bill of Rights and the parallel statutory provision, which refer to the "defendant" rather than the "defense" or "defense counsel." Cf. Ariz. Const. art. 2, § 2.1(A)(5) (describing victims' right to refuse interviews and discovery requests "by the defendant, the defendant's attorney, or other person acting on behalf of the defendant").
¶ 20 Our conclusion that the Victims are not entitled to attend the contemplated ex parte hearing is not affected by this Court's decision in Apelt, 176 Ariz. at 365, 861 P.2d at 650. There we rejected a defendant's argument that the trial court erred in refusing to hold an ex parte hearing on a request for expert assistance in a capital case. Id. The Court noted that there was no Arizona legal authority for such a hearing, that neither due process nor equal protection generally requires ex parte proceedings for such requests, and that the defendant had failed to show any prejudice from the denial of an ex parte procedure. Id. But cf. Ex Parte Moody, 684 So.2d 114, 120 (Ala.1996) (holding that Fifth, Sixth, and Fourteenth Amendments entitle criminal defendant to ex parte hearing on request for expert assistance); Stevens v. Indiana, 770 N.E.2d 739, 759 (Ind. 2002) (describing split among state courts whether ex parte hearings may be constitutionally required).
¶ 21 Apelt did not address a defendant's entitlement to be present at a hearing, much less whether victims could attend. Moreover, that opinion's comments about the legal authority for ex parte proceedings have been superseded by Rule 15.9(b), which authorizes ex parte communications related to court-appointed investigators and experts for indigent capital defendants when there is a need for confidentiality. Although Apelt recognized that Arizona's Rules of Criminal Procedure provide for the disclosure of witnesses and other evidence the defense intends to use at trial, including evidence regarding mitigating circumstances, see Ariz. R.Crim. P. 15.2(h), that fact does not obviate the need to preserve the confidentiality of defense work product or attorney-client material during the investigation of mitigation evidence. Apelt does not preclude trial courts from determining that, in particular cases, disclosure would interfere with the defendant's rights to receive effective assistance of counsel and to obtain the "basic tools" for an adequate defense. Ake, 470 U.S. at 77, 105 S.Ct. 1087.
¶ 22 We acknowledge that our constitution broadly protects the rights of crime victims, including the right to be present at proceedings "where the defendant has the right to be present," Ariz. Const. art. 2, § 2.1(A)(3), and that court proceedings generally must "be administered openly," Ariz. Const. art. 2, § 11. Our holding today respects these provisions while ensuring capital cases are conducted in the manner the United States *1145 Supreme Court has said is constitutionally required. To summarize, an ex parte hearing related to pretrial mitigation discovery is permitted under Rule 15.9(b) only when the defense has made a proper showing of a need for confidentiality. Victims are not entitled to attend such hearings under Arizona Constitution, article 2, section 2.1(A)(3) or A.R.S. § 13-4420, if, as is the case here, the defendant does not have a right to be present.
¶ 23 We recognize, moreover, that victims have various rights to participate in court proceedings that are independent of the defendant's right to be present. For example, victims are statutorily entitled to "be given notice of and the right to be heard at any proceeding involving a subpoena for records of the victim from a third party," A.R.S. § 13-4071(D), and, "on the filing of a notice of appearance and if present, counsel for the victim shall be included in all bench conferences and in chambers meetings and sessions with the trial court that directly involve a victim's right enumerated in article II, § 2.1, Constitution of Arizona." A.R.S. § 13-4437(D). Trial courts must consider if such rights are implicated in any ex parte proceeding sought under Rule 15.9(b), and, if so, must enforce the victims' rights unless the result would deprive the defendant of a fair trial. See U.S. Const. art. VI, cl. 2; see also State v. Riggs, 189 Ariz. 327, 330, 942 P.2d 1159, 1162 (1997) ("[I]f, in a given case, the victim's state constitutional rights conflict with a defendant's federal constitutional rights to due process and effective cross-examination, the victim's rights must yield."); State v. Bible, 175 Ariz. 549, 602-03, 858 P.2d 1152, 1205-06 (1993) (noting that victims' rights cannot conflict with right to a fair trial).

III.
¶ 24 For the reasons stated, we vacate the opinion of the court of appeals and remand this case to the superior court for further proceedings.
CONCURRING: REBECCA WHITE BERCH, Chief Justice, ANDREW D. HURWITZ, Vice Chief Justice, A. JOHN PELANDER and ROBERT M. BRUTINEL, Justices.


838 F.2d 466Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Wayne Edward HAILEY, Plaintiff-Appellant,v.Paul Safford, # 121633;  Henry E. Ponton, Cpl.;  Larry C.Childress, Sgt.;  Albert G. Spradley, Sgt.;Raymond M. Muncy, Warden;  BuckinghamCorrectional Center,Defendants-Appellees.

No. 86-7317.
United States Court of Appeals, Fourth Circuit.
Submitted:  Nov. 24, 1986.Decided Jan. 22, 1988.
Wayne Edward Hailey, pro se.
Richard Francis Gorman, III, Office of the Attorney General, for appellees.
Before WIDENER, WILKINSON and WILKINS, Circuit Judges.
PER CURIAM:

1
A review of the record and the district court's opinion discloses that this appeal from its order denying relief under 42 U.S.C. Sec. 1983 is without merit.  Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court.  Hailey v. Safford, C/A No. 85-0848-AM (E.D. Va.  Sept. 16, 1986).

2
AFFIRMED.


                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          NOV 9 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-1461
 v.                                               (D.C. No. 97-CR-380-S)
                                                        (Colorado)
 BARRY WHITE,

          Defendant-Appellant.

                          ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Mr. White appeals his jury conviction of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g) and 924 (1994). We affirm.

      At trial, Mr. White’s co-defendant, Thomas Horton, testified he was going

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to sell a handgun from his car to Darrell Washington, a confidential informant, in

the parking lot of a local restaurant. According to the evidence presented, Mr.

Horton was in the driver’s seat, Lisa Deboer was in the front passenger seat, and

Mr. White was in the back seat of the parked vehicle. Mr. Horton and Mr.

Washington both testified that when Mr. Washington approached the vehicle, Mr.

White handed Mr. Horton the gun from the back seat.

      Defense counsel attempted to impeach Mr. Horton’s credibility by eliciting

testimony of his planned involvement in bank robberies. On redirect, the

prosecution asked Mr. Horton with whom he had planned on robbing banks, to

which Mr. Horton responded, Mr. White. Mr. White objected, contending this

testimony was entered as evidence of a different crime in order to show his guilt

in violation of Fed. R. Evid. 404(b). The government argued Mr. Horton’s

testimony on redirect was not Rule 404(b) evidence, but was offered to correct a

“misimpression” left by defense counsel that Mr. Horton was involved in the bank

robbery scheme alone. The district court held that defense counsel had opened

the door to this testimony, and it was therefore admissible.

      We review a district court ruling on the admissibility of evidence for an

abuse of discretion. See United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir.

1998). Even if the court erred in admitting evidence, however, we will not

reverse the conviction if that error was harmless. See United States v. Bornfield,

                                         -2-
145 F.3d 1123, 1131 (10th Cir. 1998); Fed. R. Crim. P. 52(a). Assuming without

deciding that the district court abused its discretion in allowing Mr. Horton’s

testimony on redirect, given Mr. Washington’s uncontroverted testimony

regarding Mr. White’s control over the gun, we do not believe this error had a

substantial influence on the outcome of this case. See United States v. Green, 175

F.3d 822, 833 (10th Cir. 1999); Bornfield, 145 F.3d at 1131-32.

      Later in the trial, Ms. Deboer testified she did not hear anything about a

gun sale, nor did she see the gun transaction occur, despite her presence in the

vehicle at all times. The prosecution called Clint Christensen, a friend of Ms.

Deboer’s, to testify that Ms. Deboer had made a prior inconsistent statement to

him regarding her knowledge of the gun sale. Surprising the prosecution, Mr.

Christensen testified that Ms. Deboer told him she did not know anything

regarding the gun sale. The prosecution then called Agent Thomasson, who had

interviewed Mr. Christensen, to testify Mr. Christensen told him during their

interview that Ms. Deboer did tell him she knew about the gun sale.

      Mr. White challenges the admission of Agent Thomasson’s testimony as

double hearsay and not impeachment evidence of a prior inconsistent statement

admissible under Fed. R. Evid. 607 and 801(d)(1). The record is clear, however,

that Agent Thomasson testified only to what Mr. Christensen told him, which was

inconsistent with what Mr. Christensen had just testified to in court, and did not

                                         -3-
testify to what Ms. Deboer actually said to Mr. Christensen. Hence, Agent

Thomasson’s testimony was admissible impeachment evidence under Fed. R.

Evid. 607, see United States v. Johnson, 977 F.2d 1360, 1381-82 (10th Cir. 1992);

United States v. Carter, 973 F.2d 1509, 1512 (10th Cir. 1992), and its admission

was therefore not an abuse of discretion.

      Mr. White also challenges the district court’s denial of his motion for a new

trial. Mr. White’s motion was based on newly discovered evidence that Mr.

Horton was conspiring to commit multiple bank robberies which did not include

Mr. White. We review the denial of a motion for new trial based on newly

discovered evidence for an abuse of discretion. See United States v. Guiterrez-

Hermosillo, 142 F.3d 1225, 1232 (10th Cir. 1998), cert. denied, 119 S.Ct. 230

(1998). Such a motion must be based on more than mere impeachment or

cumulative evidence. See id.; United States v. Sutton, 767 F.2d 726, 728 (10th

Cir. 1985). Mr. White contends the newly discovered evidence against Mr.

Horton is character evidence and not impeachment evidence. However, evidence

of conspiring to commit bank robbery is not character evidence since such a crime

does not go to the person’s character for truthfulness or untruthfulness. See Fed.

R. Evid. 608(b); United States v. Page, 808 F.2d 723, 730 (10th Cir. 1987). Since

the newly discovered evidence was merely impeaching, the district court did not

abuse its discretion in denying Mr. White’s motion.

                                        -4-
      Mr. White finally claims that the prosecution’s failure to disclose this

information regarding Mr. Horton was a violation of his due process rights as

articulated in Brady v. Maryland, 373 U.S. 85, 87 (1963). Mr. White failed to

bring this challenge before the district court in his motion for new trial, 1 and we

do not review issues raised for the first time on appeal. See United States v.

Dixon, 1 F.3d 1080, 1082 n.2 (10th Cir. 1993), abrogated on other grounds

Florida v. White, 526 U.S. 559 (1999). See also Hicks v. Gates Rubber Co., 928

F.2d 966, 970 (10th Cir. 1991) (failure to raise issue with trial court precludes

review except for the most manifest error). In any event, this evidence would

have been cumulative. See Page, 808 F.2d at 730 (not a Brady violation

warranting new trial when withheld evidence was merely cumulative).

      For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Chief Judge

      1
        Notwithstanding there was no mention of Brady or even due process
concerns in either his motion or at the hearing, Mr. White contends he “alluded”
to investigating agencies’ failure to disclose this evidence, and thus he should not
be “faulted for the trial court’s failure to properly address the motion for new trial
as a Brady claim.” Reply Br. at 9. The district court is not required to guess at or
articulate legal claims for defense counsel. The burden is on the defendant to
specifically bring forth all grounds for a motion for new trial. See Fed. R. Crim.
P. 33; United States v. Davis, 15 F.3d 526, 531 (6th Cir.1994).

                                          -5-
-6-


                       IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1549
                                 Filed March 23, 2016

IN THE INTEREST OF S.K.,
Minor Child,

S.K., Mother,
Appellant,

B.K., Father,
Appellant.
________________________________________________________________

          Appeal from the Iowa District Court for Dallas County, Virginia Cobb,

District Associate Judge.

          The mother and father appeal the district court’s termination of their

parental rights to their child, S.K. BOTH APPEALS AFFIRMED ON CONDITION

AND REMANDED.

          Stephie N. Tran, West Des Moines, for appellant mother.

          Tabitha l. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant

father.

          Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and

Kathryn K. Lang, Assistant Attorneys General, for appellee State.

          Kayla Stratton of the Des Moines Juvenile Public Defender, Des Moines,

attorney and guardian ad litem for minor child.

          Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                            2

VOGEL, Judge.

       The mother and father separately appeal the district court’s termination of

their parental rights to their child, S.K. Both parents argue the State failed to

prove by clear and convincing evidence grounds to terminate their rights

pursuant to Iowa Code section 232.116(1)(d), (e), and (h) (2015), and the father

asserts the parent-child bond set forth in section 232.116(3) should preclude

termination.   The mother further argues termination is not in the child’s best

interests, as she has a strong bond with the child and should be granted

additional time to resolve her methamphetamine addiction. A motion for stay

was also filed by the father, who argued the Indian Child Welfare Act (ICWA)

could apply.

       We conclude the court properly terminated both parents’ rights pursuant to

paragraph (h), given their unresolved substance abuse issues result in S.K. not

being able to be placed in either parent’s care; furthermore, it is in the best

interests of S.K. the parents’ rights are terminated, and we find no consideration

that would preclude termination. Consequently, we conditionally affirm the order

of the district court and remand for a determination as to whether proper notice

has taken place regarding ICWA.1

I. Factual and Procedural Background

       S.K., born January 2014, first came to the attention of the Iowa

Department of Human Services (DHS) in March 2014, when the mother tested

positive for methamphetamine and marijuana and the father, who has a long

1
 The mother filed an untimely pro se letter after this case was submitted to this court for
consideration. The State filed a motion to strike the letter as untimely. We grant the
State’s motion to strike.
                                           3

criminal history, was reportedly actively using illegal substances. S.K. tested

positive for methamphetamine and marijuana.             She was removed from the

parents’ care on March 26, 2014, and placed with the paternal grandmother.

However, DHS discovered the grandmother was allowing unsupervised contact

with the parents. On August 14, 2014, the parents were arrested after the father

was found to be driving without a license—with S.K. in the vehicle—and the

mother had methamphetamine in her possession.2               Consequently, S.K. was

moved to family foster care, where she remained at the time of the termination

hearing.

       The following services were offered to the parents during the pendency of

these proceedings: family safety, risk, and permanency services; supervised

visitation; safety services; relative placement; drug testing; substance abuse

treatment and individual therapy; medical and mental health services, including

medication management; and remedial services. The district court noted, “The

services have either not been successful or the parents have not complied with

services.” Before the termination hearing, the mother gave birth to another child

who tested positive for methamphetamine.

       Due to the parents’ inability to resolve their substance abuse issues, the

State petitioned to terminate their parental rights to S.K. A hearing was held on

May 11, 2015, and on August 31, 2015, the district court issued an order

terminating both parents’ rights under Iowa Code section 232.116(1)(d), (e), and

(h). The parents appeal the court’s order.

2
 At the termination hearing, the mother claimed S.K. was not in the vehicle, asserting it
was a different child.
                                            4

       On February 18, 2016, the father filed a motion for stay, arguing he and

the mother might have Native American heritage and that the Indian Child

Welfare Act (ICWA) could apply. The State resisted, and we address the motion

for stay below.3

II. Standard of Review

       We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interestS.

Id. When the juvenile court terminates parental rights on more than one statutory

ground, we only need to find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id.

III. Stay

       The father argues both parents might have Indian heritage such that

ICWA could apply, which requires us to issue an order to stay the proceedings

and remand the case back to the district court so it may make a factual finding

with respect to the applicability of ICWA.

       With regard to ICWA, our supreme court has noted:

              A great number of courts considering similar statutes have
       held that when an appellate court finds a violation of ICWA notice
       provisions, reversal is not necessarily warranted. Rather, the
       proper procedure, at least when there is no other evidence the child
       is an Indian child, is to affirm the termination on the condition that
       the proper notification be provided. Only if it turns out the child is
       an Indian child and the tribe wants to intervene must the
       termination be reversed. Otherwise the termination stands.

3
  In spite of the father’s belated claim, the termination order stated: “As no information
has been presented to the Court to the contrary, the Court finds that the child is not an
Indian Child.” This was also noted as early as the April 2, 2014 order of pretrial
conference.
                                          5

              This solution is consistent with the mandate of the Iowa
       ICWA. The provisions of the Iowa ICWA do not apply until the
       court determines the children are “Indian” as defined in the Iowa
       ICWA. Therefore there can be no violation of the Iowa ICWA until
       the court determines it applies to the proceedings.

In re R.E.K.F., 698 N.W.2d 147, 150 (Iowa 2005) (citations omitted).

       Given this controlling case law, we need not grant the stay; rather, if we

agree termination was statutorily warranted, we will conditionally affirm the

termination and remand the case back to the district court for a determination of

the applicability of ICWA.

IV. Termination

       The mother and father both argue the district court improperly terminated

their rights under Iowa Code section 232.116(1)(d), (e), and (h), and the parent-

child bond consideration found in Iowa Code section 232.116(3)(c) precludes

termination; the mother further argues it is not in S.K.’s best interests to terminate

her rights because if she is granted more time she could care for S.K.

       To terminate rights pursuant to paragraph (h), the State must establish the

child is three years of age or younger, has been adjudicated a child in need of

assistance and removed from the physical custody of the parents for at least six

of the last twelve months, and there is clear and convincing evidence the child

cannot be returned to the custody of the parents at the present time. Iowa Code

§ 232.116(1)(h)(1)–(4).

       We agree with the juvenile court that termination of both parents’ right is

proper pursuant to paragraph (h). The parents’ addiction issues prevent S.K.

from being returned to their care. As the DHS report dated May 4, 2015, noted:

“[The mother] is presently not working. [The father] continues to report he is
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working at this time . . . . There has been a positive drug screen on both of the

parents. When [the mother] called to cancel the last visit she was very emotional

and talked very fast.” This record demonstrates S.K. cannot be returned to either

parent’s care; therefore, termination was proper under paragraph (h) as to both

the mother and the father. See Iowa Code § 232.116(1)(d)(4); see also In re

N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (noting the mother’s unresolved

addiction prevented her from being able to care for her child).

        Furthermore, termination of the parents’ rights is in S.K.’s best interests.

Neither parent has demonstrated a willingness to comply with services or made

substantial progress with regard to resolving their substance abuse issues. On

April 13, 2015, the father again tested positive for methamphetamine and the

DHS report dated April 7, 2015, noted the mother returned a recent, positive drug

screen. In determining the future actions of the parent, their past conduct is

instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). It is clear the parents

are still active drug users, and it is in S.K.’s best interests to remain out of their

care.

        Additionally, the mother has received services since 2014 but has not

made the progress needed to show S.K. would be safe in her care, which

indicates that granting her more time would not resolve her issues. See id. We

further note that “[w]e have repeatedly followed the principle that the statutory

time line must be followed and children should not be forced to wait for their

parent to grow up.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see

also Iowa Code § 232.116(2). The record also reflects that no consideration

found in Iowa Code section 232.116(3) precludes termination, particularly given
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the fact S.K. has been out of the parents’ care for a significant length of time,

thus refuting the conclusion there is a strong parent-child bond. See Iowa Code

§ 232.116(3)(c). We further find it encouraging S.K. is thriving in foster care.

       Consequently, we conditionally affirm the district court’s termination order,

with instructions to remand so the court may consider the applicability of ICWA.

       BOTH APPEALS AFFIRMED ON CONDITION AND REMANDED.