State of Iowa v. Andrew Jerome Harris

IN THE COURT OF APPEALS OF IOWA _______________ No. 24-2032 Filed November 4, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Andrew Jerome Harris, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Polk County, The Honorable Celene Gogerty, Judge. _______________ AFFIRMED _______________ Erin Carr (argued) of Carr Law Firm, P.L.C., Des Moines, attorney for appellant. Brenna Bird, Attorney General, and Joshua Henry (argued), Assistant Attorney General, attorneys for appellee. _______________ Heard at oral argument by Schumacher, P.J., Sandy, J., and Telleen, S.J. Opinion by Schumacher, P.J. 1 SCHUMACHER, Presiding Judge. Andrew Harris appeals his judgment and sentence following a jury trial where he was found guilty of second-degree murder, in violation of Iowa Code sections 707.1 and 707.3 (2022), being a felon in possession of a firearm, in violation of sections 724.25 and 724.26(1), and going armed with intent, in violation of section 708.8. Harris asserts the district court (1) abused its discretion by admitting prior testimony of an unavailable witness, (2) erred in not instructing the jury regarding a necessity defense, and (3) abused its discretion by excluding portions of a defense expert’s testimony based on certain facts underlying the expert’s opinion. Upon our review, we affirm. I. Background Facts & Proceedings In 2022, Harris went to Rico’s, a bar in Des Moines, shortly after 10:00 p.m. Tyrell Grimes and Allen Matthews were already at the bar when Harris arrived. Harris walked through the bar, greeting several patrons that he knew, then approached a group of individuals that included Grimes and Matthews. Harris conversed with that group before moving on to speak with other patrons. Matthews stated that at some point, Harris walked past him and Grimes and said, “I’m gonna fuck one of these [n-word]s up.” Harris contends that he simply said, “excuse me” as he walked by. Grimes and Matthews exited Rico’s at around 10:30 p.m. to smoke near Grimes’s vehicle that was parked directly on the street in front of the bar. While Matthews was near Grimes’s car, Harris exited the bar and began speaking with Grimes, who was seated in the front passenger seat with the window down. The exact exchange of words is disputed, but video evidence shows the conversation became argumentative. Matthews testified he told Grimes to calm down, Grimes exited the vehicle, and asked Harris to leave. 2 Harris testified that Grimes said that next time he saw Harris “it’s that.” Harris understood this to mean that Grimes would hurt him. Harris walked away and got into his car parked down the street at a barber shop. Video shows Harris driving west, past Grimes and Matthews, wavering over the center line, and saying something to them with his window rolled down. Surveillance cameras show Harris continue to drive west in the direction of his residence, and then returning east to the area of Rico’s approximately seven minutes later. Grimes and Matthews were still outside and had approached a couple of women who had left a nearby restaurant. Harris sped by in his car and parked nearby. Harris exited his vehicle, walked by Rico’s, and looked in through the front window. He spoke with a couple of people outside, while his right hand was holding something in his pocket. One of the people outside Rico’s appeared to point in the direction where Matthews and Grimes were talking with the women. Harris then walked in the direction of Grimes and Matthews. Matthews testified that Harris approached them, pulled a gun from his pocket and stated, “What’s up now, [n-word]s?” This interaction and the following shooting were not captured by video surveillance. Harris fired two shots, both of which struck Grimes. Matthews and Grimes ran, but Grimes collapsed across the street. Grimes died due to gunshot wounds, one to his arm and the other to his chest. Harris ran back toward his vehicle and fled to Saylorville, where he discarded the gun in a spillway. Harris then drove to a friend’s residence, where he had been that evening before his arrival at Rico’s. He told the friend that he had shot 3 someone who was disrespecting him and would not leave him alone. Harris stayed the night at his friend’s residence. Law enforcement investigating the incident identified Harris as the shooter and executed a search warrant on Harris’s residence early the next morning. Police found ammunition that matched the bullet casings found on the sidewalk near where Grimes was shot. They also found an empty gun box. Law enforcement waited near Harris’s car that was parked a few blocks away from his residence. When Harris’s friend dropped him off at the car, police detained Harris. At the police station, Harris denied being at Rico’s the previous night or owning a gun. When law enforcement asked Harris if it was possible he acted in self-defense, he continued to deny involvement. Later, in a recorded call from the jail, Harris indicated that he acted in self-defense and attempted to defuse the incident. Harris was charged with first-degree murder. After trial in 2023, a jury found him guilty as charged. Following a combined motion for new trial and arrest of judgment, the district court granted a new trial. While awaiting the new trial date, the State charged Harris in a separate case, arising from the same incident, with going armed with intent and felon in possession of a firearm. The State moved to consolidate the two cases for trial, and the district court granted the motion. Prior to the second trial, Harris filed a notice of intent to rely on the defenses of necessity and justification. After the close of evidence at trial, the district court agreed with the State that the jury should not be instructed on the necessity defense because Harris failed to show a fact question concerning the defense. 4  Harris retained an expert witness, Dr. Christina Pietz, a forensic psychologist. Dr. Pietz evaluated Harris’s mental state at the time of the incident, reviewed his medical records, his background, his version of events, and performed a personality assessment inventory. Dr. Pietz assessed Harris’s history of trauma and how it could affect his decision making and perception. Before trial, the State filed a motion in limine, requesting that Dr. Pietz be prohibited from testifying about the justification defense, offering an opinion based on Harris’s version of events instead of Dr. Pietz’s specialized knowledge, testifying about Grimes’s alleged statements to Harris, and opining about Harris’s credibility. The defense resisted, asserting Dr. Pietz should be allowed to testify that Harris believed he needed to defend himself based on life experience, she was permitted to rely on hearsay in reaching her conclusions, and she should be allowed to reference Harris’s statements if Harris testified. The district court reserved ruling until trial. At the start of trial, the district court ruled that Dr. Pietz could not offer an opinion about justification as she was not an expert in that area, that opinion was grounded in Harris’s version of events, and testimony about justification would vouch for Harris’s credibility. During trial, when Dr. Pietz was testifying, defense counsel asked her what Harris said concerning what Grimes stated to him before Harris left Rico’s. The prosecution objected on hearsay grounds. The district court determined that Grimes’s statements would be admissible through Harris’s testimony for effect on the listener, but the statements attempted to be offered through Dr. Pietz were to prove the truth of the matter asserted, rendering the statements hearsay. The district court ruled that Dr. Pietz could testify that Harris said Grimes spoke to him but 5 was not allowed to testify as to the contents of Grimes’s statements. The district court also determined the evidence’s probative value would not substantially outweigh its prejudicial effect under Iowa Rule of Evidence 5.703. Dr. Pietz then testified that her opinion was that Harris felt threatened because of Harris’s hypervigilance and his description of how he interacted with Grimes. At a pretrial conference, the State informed the court it was having problems with subpoenaing Matthews to testify at the second trial. The State explained it started its efforts in June, with trial set for August, but was unable to subpoena Matthews, even after locating him in Indiana. The State also obtained a material-witness warrant, working with Indiana police to find Matthews, but without success. Because of these difficulties, the State informed the court it would move to admit Matthews’s prior testimony from the first trial, under Iowa Rule of Evidence 5.804, because of his unavailability. At the beginning of trial, on August 19, the State asked for a ruling on the prior testimony and informed the court that law enforcement was still looking for Matthews. The defense resisted, arguing admission of prior testimony would violate Harris’s right to confrontation. The district court found Matthews to be unavailable under rule 5.804(a)(5) and that under rule 5.804(b)(1), his prior testimony was excepted from hearsay as the defense had a previous opportunity to cross-examine him. Following trial, the jury found Harris guilty of second-degree murder under count I, and guilty as charged for being a felon in possession of a firearm and going armed with intent under counts II and III. Harris now appeals. Additional facts will be discussed as necessary below. 6 II. Analysis A. Necessity Defense Jury Instruction Harris asserts the district court erred by refusing to instruct the jury regarding a necessity defense, contending he presented enough evidence on the necessity elements to generate a required fact question. “We review jury instruction issues for correction of errors of law.” State v. Young, No. 14-0271, 2015 WL 1055070, at *1 (Iowa Ct. App. Mar. 11, 2015) (citing State v. Newell, 710 N.W.2d 6, 29 (Iowa 2009)). A trial court must instruct on a defendant’s theory of defense provided the defendant makes a timely request, the requested theory of defense instruction is supported by substantial evidence, and the requested instruction is a correct statement of law. In this case, the district court determined the requested instruction was not supported by the evidence. On appeal, we determine only whether the trial court correctly determined the requested instruction did not have evidentiary support. Id. (cleaned up). We first must determine whether error was preserved concerning Count I on this issue. The State argues Harris did not preserve error on Count I for the following reasons: (1) Harris requested the necessity instruction on Count I for the first time at the close of evidence, and not at the earliest opportunity, (2) “the proposed instruction [defense] counsel subsequently read into the record only concerned the necessity of Harris illegally carrying a firearm in relation to count two,” and thus the district court only ruled regarding Count II, and (3) Harris’s “more robust argument” that a necessity instruction be afforded to Count I within his motion for new trial was untimely. 7  Harris conversely asserts that (1) “error is preserved on a challenge to [a] jury instruction where the challenge is raised prior to closing argument,” (2) at the final pretrial conference, the district court clarified with defense counsel that the necessity defense applied to both the original charge, murder in the first-degree, and the additional charges pursued at the second trial, and (3) Harris objected to the removal of the instruction immediately after the district court announced its decision, thus raising “the issue at trial at the earliest opportunity.” Error is preserved on a challenge to jury instructions when a party objects at the close of evidence, before closing arguments, and the district court rules on that challenge. Iowa R. Civ. P. 1.924; Iowa R. Crim. P. 2.19(4)(g); see State v. Reese, 259 N.W.2d 771, 777 (Iowa 1977). Here, Harris raised a challenge to the instructions at the close of evidence, before “arguments to the jury,” and again during the motion for new trial hearing. See Iowa R. Civ. P. 1.924; see also Myers v. Crawford Heating & Cooling, No. 09- 1849, 2010 WL 4484386, at *4 (Iowa Ct. App. Nov. 10, 2010) (finding error was preserved on a jury instruction challenge where the party “argued th[e] point before the district court in both the jury instruction conference and [their] motion for new trial” (citing Reese, 259 N.W.2d at 777 (“[W]e are disposed to observe that error was preserved since a request for an instruction was made and the motion for a new trial based in part on the refusal to submit such an instruction was overruled.”))). Regarding the State’s assertion that Harris in requesting a necessity instruction at the close of evidence only referred to Count II, the illegal carrying of a firearm, the record shows Harris referenced the remaining counts earlier in proceedings. At the final pretrial conference, the district 8 court asked for clarification as to which counts the necessity defense would apply: COURT: So we’re clear, the justification defense applies the charge of murder; necessity applies to the two new charges. DEFENSE COUNSEL: No. I think they both apply to both. COURT: Okay. I want to make sure I’m understanding. DEFENSE COUNSEL: But in light of the fact that the Court combined the cases, necessity is more appropriate related to the Going Armed with Intent because that’s what our argument is. He had to carry the firearm. .... DEFENSE COUNSEL: The point I’m making is, I stand corrected on what I filed, but this was filed months before the new charges were filed, so I will be filing a necessity defense, as well, I guess. COURT: Anything on behalf of the State? STATE: We’ll just wait until they amend it, and then we’ll make the determination whether or not we’ll have any objections. COURT: That seems fair. It appears from the record that Harris was pursuing a necessity defense for all counts prior to trial. Further, the same day as the final pretrial conference, Harris filed an amended notice of affirmative defenses showing intent to rely on necessity in the first-degree murder case. We turn to the actual challenge made to the proposed instructions at the close of evidence. “Objections or exceptions to instructions must be specific so as to alert the trial court to any alleged error to be corrected.” State v. Harrison, 473 N.W.2d 242, 243 (Iowa Ct. App. 1991) (citation omitted) (finding error not preserved on a challenge to exclusion of a necessity instruction because “the requested instruction did not adequately alert the 9 trial court to this point of law defendant wished to have the jury informed upon”). “[I]f the defendant makes an objection to an instruction at trial court, [they] are bound by that objection on appeal.” Id. (citation omitted). Also, “a defendant cannot amplify or change the objection on appeal.” Id. (citation omitted). The written proposed jury instructions provided by either party are not present in the record before us. So, our only reference is to the trial transcript. At the close of evidence, defense counsel appeared to orally argue for inclusion of a necessity instruction only for the charge of illegally possessing a firearm:1 DEFENSE COUNSEL: Since we adjourned just a few minutes ago, I went back and I reviewed, and the Court’s Instruction Number 48— and I can file this as an exhibit, if necessary, but that, from the Court is the— “Andrew Harris claimed that possession of a firearm was necessary— Andrew Harris’[s] possession of a firearm is necessary, if all the following are true.” It then goes through, “There was an emergency situation—” .... And then the Court’s instruction provided last night, Instruction Number 49, that mirrors the parties’ proposed Instruction Number 61, although it does appear to merge or add some language, it reads, “If Andrew Harris had a future—had a fear of future injury—” instead of “present, imminent, or impending injury,[]—or if Andrew Harris’[s] negligence or fault created the threat of injury, Andrew Harris’[s] possession of a firearm was not necessary in Count II. . . .” 1 Counsel for Harris, during jury instruction deliberations, objected to several jury instructions by number. However, the only objection made that specifically referenced the contents of an instruction was to the instruction of necessity regarding illegal possession of a firearm. The record before us does not allow us to discern the content of the other proposed instructions that were challenged. 10  . . . . [A]nd so I would again renew my objection to the exclusion of those necessity instructions. And, in the motion for new trial, Harris again only referenced copied proposed jury instructions that pertained to Count II, arguing that Harris’s possession of a firearm was necessary. While the motion contained a footnote stating, “The defense submitted and continues to submit that the necessity instructions should be applied to all three counts in the Amended Trial Information,” that assertion came too late, well after closing argument, the point at which a party must challenge the submission or lack of instruction. See Iowa R. Civ. P. 1.924. We find that error was not preserved concerning Harris’s claim that the district court erred by not submitting to the jury a necessity instruction for first-degree murder. See State v. LeCompte, 327 N.W.2d 221, 223 (Iowa 1982) (“The defendant’s objection to the instruction did not preserve the other grounds urged in his brief and the only issue for review regarding the instruction is, [the one] defense counsel stated.”); see also Piper v. Jerry’s Homes, Inc., No. 01-2018, 2003 WL 22199580, at *8 (Iowa Ct. App. Sep. 24, 2003) (“Without a more specific indication of what instruction [Harris] 11 sought, we are hard pressed to determine whether he was entitled to have the instruction presented to the jury.”).2, 3 Having determined that Harris did not preserve error on the challenge to the necessity instruction on the first-degree murder charge, we now address his preserved claim as to whether the district court erred in not 2 The State urges us to find that the defense of necessity “should be deemed legally unavailable for homicide offenses.” The State argues that “because the necessity defense is rooted in the common law . . . it is generally not available when superseded by a legislative determination of values.” See State v. Bonjour, 694 N.W.2d 511, 512 (Iowa 2005) (citing Wayne R. LaFave, Substantive Criminal Law § 10.1 (2d ed. 2003)). The superseding statute, as the State asserts leaves “no room for a common law necessity defense,” is Iowa Code chapter 704, which grants immunity from civil or criminal liability when an individual employs reasonable force against “damages incurred by the aggressor” in specific circumstances. Iowa Code § 704.13; see id. §§ 704.1–.8 (outlining the parameters and requirements of justification to immunize a defendant from criminal liability by defining justifiable force and circumstances where justification is unavailable). Because we find Harris failed to preserve error on his necessity claim pertaining to his homicide charge, we decline to rule on whether the common law defense is precluded by the legislature and thus unavailable for homicide cases, as we have for other criminal charges. See Bonjour, 694 N.W.2d at 512–14 (rejecting a medical necessity defense because the “legislature has . . . made the kind of determination of values . . . that effectively forecloses our recognition of a common-law necessity defense” (citations omitted)). But see State v. Corbett, No. 06-0572, 2007 WL 2256169, at *3 (Iowa Ct. App. Aug. 8, 2007) (noting without deciding that “[o]ur law has not recognized necessity as an affirmative defense to the crime of violation of a custodian order”); State v. Moment, No. 09-0533, 2010 WL 1052075, at *7 (Iowa Ct. App. Mar. 24, 2010) (noting “[i]t is unclear if the defense of necessity is even available to one who allegedly seeks to avoid harm to others”); State v. Erickson, No. 24-0049, 2025 WL 856117, at *1 (Iowa Ct. App. Mar. 19, 2025) (assuming without deciding that the necessity defense is available to felons prohibited from possessing firearms). 3 Even if we were to determine Harris’s request for a necessity defense on the murder charge was preserved, the factual record does not support the request for a necessity instruction. 12 instructing the jury on necessity pertaining to illegal possession of a firearm. Regarding whether the necessity defense is available for an individual charged with possession of a firearm by a felon, we note: It is an open question whether necessity is a defense to possession of a firearm by a prohibited person in Iowa. But we need not resolve the question today. Instead, we follow the approach taken by our supreme court more than forty years ago, and for the purposes of this case we assume the necessity defense may be available to a felon possessing a firearm. Erickson, 2025 WL 856117, at *1 (quoting State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981)) (cleaned up). Harris argues that it was necessary to carry a firearm because Grimes threatened his life. “The rationale of the necessity defense lies in defendant being required to choose the lesser of two evils and thus avoiding a greater harm by bringing about a lesser harm.” Walton, 311 N.W.2d at 115. When a “defendant is not personally at fault in creating the situation calling for the necessity” the court analyzes the following factors: “(1) the harm avoided, (2) the harm done, (3) the defendant’s intention to avoid the greater harm, (4) the relative value of the harm avoided and the harm done, and (5) optional courses of action and the imminence of disaster.” Id. “The necessity defense does not apply except in emergency situations where the threatened harm is immediate and the threatened disaster imminent.” Id. For the necessity defense to be submitted to the jury, “the defendant has the burden of generating a fact question on the defense.” Id. At trial, during the jury instruction proceedings, the district court denied Harris’s request to submit the defense to the jury, ruling: I do not think a fact issue has been generated in this particular case. 13  A necessity defense does not apply except in emergency situations, where the threatened harm is immediate and the threat of disaster imminent. The defendant must be stripped of options by which he or she might avoid both evils. It also further states that the requirement of the threat be immediate and not future, is required, as well. .... I don’t think there’s anything here to indicate this was an emergency situation in any stretch of that word. Even assuming the jury finds Mr. Harris credible, there was no emergency. I don’t think these elements have been met, and so I don’t think a fact question has been generated. We agree with the district court’s determination. The record demonstrates that Harris, after allegedly being threatened by Grimes, left Rico’s in his vehicle, then returned several minutes later before the shooting. Any immediacy of danger subsided when Harris left the situation. There were certainly optional courses of action, and the allegedly threatened harm was not immediate. We find the district court did not err in determining no fact question was created regarding Harris’s claimed necessity defense. B. Unavailable Witness’s Prior Testimony Harris asserts that the State’s efforts to locate Matthews, a witness who testified in the first trial, were insufficient to qualify him as unavailable in the second trial. He argues the district court erred in allowing Matthews’s prior testimony to be read at the second trial, and thus his constitutional right to confrontation was violated. Harris also asserts that his right to confrontation was violated because he did not have an opportunity to cross- 14 examine Matthews regarding the new charges added in the second proceeding. The State contends that error is not preserved on the constitutional claims. We review issues involving the district court’s rulings on hearsay for correction of errors at law, and “[t]his standard of review extends to determining whether statements come within an exception to the general prohibition on hearsay evidence.” State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009). We review claims concerning the Sixth Amendment right to confrontation de novo. State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021). First, as with the previous claim, we must determine whether Harris preserved his constitutional claims. The State argues that the district court “did not address Harris’s confrontation claim, which was buried in the written resistance that was only filed in one of the cases.” Further, the State asserts that one of the reasons supporting Harris’s constitutional claim, that new charges were added, is unpreserved because “it was neither raised nor ruled upon.” We note that the State moved to consolidate the retried first-degree murder case with the second case that charged Harris with going armed with intent and felon in possession of a firearm. Harris resisted the motion, but the district court granted it, stating: These cases were consolidated for purposes of trial only. The court also approved an amended trial information that consolidated the charges for trial, but again, for that purpose only. It was never the intention of the court to completely consolidate these cases . . . and it was the court’s intention that they should both remain separate once trial was complete. 15  The State filed a brief in support of utilizing Matthews’s prior testimony due to unavailability in the first case. Then Harris filed a resistance in the second case. The written resistance laid out Harris’s constitutional concerns: [N]otwithstanding the State’s lack of reasonable efforts in this case with this witness, a transcript used in lieu of in-person trial testimony violates the Defendant’s right to confrontation under the Confrontation Clause of the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Constitution of the State of Iowa. A transcript is not the same as face-to-face, in-person trial testimony, where the jury cannot assess the witness’[s] appearance, conduct, demeanor, and memory while testifying in-person. See State v. Ary, 877 N.W.2d 686, 699 (Iowa 2016) (“To preserve error on a constitutional claim, counsel should inform the district court of the constitutional basis for any motion a party makes.”). Then, at the final pretrial conference, the district court orally ruled that Matthews was unavailable, thus allowing for an exception to the rule against hearsay: Iowa Rule of Evidence 5.804 has exceptions to the rule of hearsay when the declarant is unavailable as a witness. It does give criteria for being unavailable. Under (a)(5), “The declarant is absent from the trial or hearing, and the statement’s proponent has not been able, by process or other reasonable means, to procure the . . . the declarant’s attendance . . . . And specifically in this case, this witness testified on this exact case at a prior trial on these same issues. It sounds like he’s been deposed. He certainly was cross-examined. We agree with Harris that his confrontation challenge was preserved. See State v. Houk, No. 23-1691, 2025 WL 854922, at *3 n.1 (Iowa Ct. App. Mar. 19, 2025) (noting “our error preservation rules are not hypertechnical” (citing Segura v. State, 889 N.W.2d 215, 219 (Iowa 2017))). Although he raised 16 the issue in only one of the cases, the district court’s ruling applied to both cases that were consolidated for trial purposes. The ruling’s purpose was to determine admissible evidence in the consolidated trial. The district court referenced Matthews’s prior testimony and the fact he was cross-examined. See Ary, 877 N.W.2d at 699 (finding error was preserved on a constitutional challenge based on a motion to disqualify the jury as “the constitutional basis for the claim was obviously apparent”). But see State v. Withers, No. 24-0661, 2025 WL 3165640, at *3 (Iowa Ct. App. Nov. 13, 2025) (finding a constitutional claim unpreserved because the challenge was based on statutory grounds, and “[t]he court did not address any constitutional implications and . . . [defendant] did not raise any”). But we agree with the State that Harris’s argument regarding the need for cross-examination based on new charges addressed in the second trial is not preserved, as it was not raised or ruled upon below. We now determine whether the district court erred in deeming Matthews as an unavailable witness and allowing a transcript reading of his prior testimony at trial. Harris argues that the State’s efforts to secure Matthews as a witness for the second trial were insufficient, Matthews should not have been considered an unavailable witness under rule 5.804(a)(4), and thus his former testimony was not excepted from the rule against hearsay under rule 5.804(b)(1). Harris asserts that the State’s initiating the subpoena process just two months before trial does not support the district court’s finding of unavailability. The details of the State’s efforts to locate and serve a subpoena upon Matthews are as follows: (1) an order for new trial was filed on February 19, 2024; (2) the State initiated efforts through investigators to locate Matthews 17 beginning on June 11, seventy days before trial; (3) a detective was assigned to serve Matthews with a subpoena on June 12; (4) on June 12, the detective learned that Matthews was residing in Gary, Indiana, observed Matthews’s vehicle near the residence via a FLOCK camera, and called his phone number, with no answer; (5) the detective requested assistance from local Indiana law enforcement to locate Matthews on June 20; (6) the local Indiana detective communicated with Iowa law enforcement that several attempts to serve Matthews had failed in the period between June 21 and June 26; (7) on July 2 and July 11, Iowa law enforcement requested additional assistance from an Indiana deputy, and on July 19, the Indiana deputy requested an affidavit from the Polk County prosecutor in order to serve Matthews; (8) the affidavit was provided during the week of July 29; and (9) between August 1 and August 12, several efforts including phone calls, social media messages, communications with associates, and the issuance of a warrant, all failed to locate Matthews. Matthews did not appear in Indiana court to be served the subpoena. Under the Sixth Amendment, in criminal prosecutions, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” State v. Kite, 513 N.W.2d 720, 721 (Iowa 1994) (quoting U.S. Const. amend. VI). The right of confrontation allows a defendant to compel a witness to testify live at trial, “allowing the fact finder to assess the [witness’s] credibility.” Id. “An exception to the confrontation requirement exists for the testimony of an unavailable witness who previously testified against the same defendant and was subject to cross-examination.” Id. “A witness is not considered unavailable unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” State v. Eaton, No. 14-2082, 2015 WL 8462318, at *3 (Iowa Ct. App. Dec. 9, 2015) 18 (cleaned up); accord Barber v. Page, 390 U.S. 719, 724–25 (1968). The efforts of the State “to produce a witness is a question of reasonableness.” Eaton, 2015 WL 8462318, at *3 (citation omitted). “Due diligence requires more than the issuance of a subpoena and the return of it not found.” Id. (cleaned up). It is the State’s burden to show “its good-faith efforts to secure the presence of a witness.” Id. Harris relies on a single case, State v. Zaehringer, to assert that the State’s efforts to locate Matthews were unreasonable. See 325 N.W.2d 754, 759 (Iowa 1982). But, in Zaehringer, the court determined the State’s minimal efforts to serve subpoenas upon a witness were the result of “risky oversight.” Id. The prosecution in Zaehringer was notified that the witness had moved out of state fourteen months prior to trial, and “the State simply sent out subpoenas in the immediate county area, and took no action regarding the out-of-state lead.” Id. Here, although the State did not commence attempts to serve Matthews until a couple of months before trial, we agree with the district court that its good-faith efforts were diligent and reasonable. As detailed above, several intensive attempts and methods were utilized to locate and serve Matthews, although to no avail, including the issuance of an order to appear in Indiana court to be served. See Eaton, 2015 WL 8462318, at *3 (finding the State’s efforts to serve a witness reasonable when, nine days before trial, law enforcement attempted to serve the subpoena, attempted to call the witness, and questioned the witness’s neighbors and employer). Accordingly, we find the district court did not err in ruling that Matthews was unavailable for trial pursuant to rule 5.804(a)(5). At the first trial, defense counsel had “an opportunity and similar motive to develop” the testimony of Matthews, including utilizing cross-examination, so his 19 prior testimony was admissible. Iowa R. Evid. 5.804(b)(1). “Because [Matthews] was unavailable, the use of [his] prior testimony under rule 5.804(b)(1) did not violate [Harris’s] rights under the Confrontation Clause.” See Eaton, 2015 WL 8462318, at *3. C. Limitation of Expert Testimony Harris asserts the district court abused its discretion by precluding his expert witness, Dr. Pietz, from testifying about threatening statements that Grimes allegedly said to Harris.4 Harris argues that, even if the statements constitute hearsay, they should have been admissible under rule 5.703. “We review a trial court’s decision to admit or exclude expert testimony for an abuse of discretion.” Ranes v. Adams Lab’ys, Inc., 778 N.W.2d 677, 685 (Iowa 2010). “[W]e will reverse a decision by the district court concerning the admissibility of expert opinions only when the record shows the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id. (cleaned up). Untenability occurs when “[a] ground or reason . . . is not supported by substantial evidence or when it is based on an erroneous application of the law.” Id. (citation omitted). Harris asserts that Grimes’s hearsay statements are admissible under rule 5.703, which states: An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an 4 The statements that Harris alleges Grimes said to him include: “I know exactly who you are, and the next time I see you, it’s that,” and “Didn’t I tell you, the next time I see you, I’m going to shoot you?” Dr. Pietz testified in an offer of proof that Harris told her Grimes made these statements to him. 20  opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Iowa R. Evid. 5.703. Here, the district court ruled that Dr. Pietz was allowed to offer an opinion about Harris’s perception of the incident but was prohibited from detailing what Harris said Grimes told him. The court reasoned that although inadmissible hearsay can be admitted if it assists in forming an expert opinion, the statements’ probative value did not substantially outweigh their prejudicial effect. Further, the court reasoned that if Harris chose to testify, which he did, he could inform the jury of what Grimes stated to him. At trial, Dr. Pietz testified that in her opinion, Harris felt threatened by Grimes prior to the shooting. Harris, on appeal, asserts that the excluded testimony was relevant and not unfairly prejudicial. He cites rule 5.403, which concerns the exclusion of “relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Iowa R. Evid. 5.403. However, as the State points out, rule 5.703 “operates in reverse,” allowing inadmissible evidence that informs an expert opinion “only if [its] probative value . . . substantially outweighs [its] prejudicial effect.” Iowa R. Evid. 5.703 (emphasis added). Here, Dr. Pietz was able to testify to her opinion that Harris felt Grimes threatened him because of how Harris described his interactions with Grimes. And Harris ultimately testified about the exact statements that Dr. Pietz relied upon in forming her opinion. If Dr. Pietz had been allowed to refer to the hearsay in question, the testimony would have been cumulative and added nothing to the jury’s understanding of her expert opinion. See Brunner v. Brown, 480 N.W.2d 33, 37 (Iowa 1992) (finding no abuse of 21 discretion where the excluded testimony underlying an expert opinion could have been obtained “from examination of [other] witnesses”). Further, even if we find that the district court abused its discretion in prohibiting th