IN THE COURT OF APPEALS OF IOWA
No. 13-0712
Filed October 1, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN ARTHUR WILSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
John Wilson appeals his convictions of falsifying a public document and
forgery. AFFIRMED.
Nicholas Dial of Benzoni Law Office, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, John P. Sarcone, County Attorney, and Justin Allen, Assistant County
Attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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POTTERFIELD, P.J.
John Wilson appeals his convictions of falsifying a public document, in
violation of section 718.5 (2011), and forgery, in violation of Iowa Code section
715A.2(1)(b). He contends the district court abused its discretion in admitting
evidence of his flight from police and applied the wrong standard in ruling on his
motion for new trial. He also asserts his trial counsel was constitutionally
ineffective. Because we find no abuse of discretion in the trial court’s evidentiary
rulings, we affirm the convictions. We do not rule on the ineffectiveness claims,
preserving them for possible postconviction proceedings.
I. Background Facts and Proceedings.
John Wilson appealed his 2010 convictions for second- and third-degree
theft in which he was sentenced to a term of imprisonment not to exceed seven
years. He posted an appeal bond and was not incarcerated pending the appeal.
Wilson was represented in his appeal by court-appointed counsel, John
Audlehelm.
On July 12, 2011, Wilson filed an ethics complaint against Audlehelm and
then filed a pro se motion in the Iowa Supreme Court requesting new counsel.
Wilson went to Audlehelm’s residence at 10 p.m. that same date, accompanied
by his mother who was carrying a video camera, and handed Audlehelm copies
of the ethics complaint and the motion filed in the supreme court. Audlehelm was
disturbed by the event because his address was not listed and he had not
informed Wilson where he lived.
On July 13, Audlehelm filed a resistance to Wilson’s pro se motion for new
counsel. He also filed a motion for an extension of time to file the proof brief,
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which was due that day. On July 18, Audlehelm mailed the proof brief and
designation of parts of the appendix, which were filed on July 20.
On July 27, a document captioned “withdrawal of resistance to motion for
new counsel and motion to void brief and to withdraw,” purportedly signed and
filed by Audlehelm, was filed in the supreme court. Though a certificate of
service indicated it had been sent to the attorney general’s office, that office did
not receive a copy of this filing.
On August 4, the supreme court issued an order granting the motion to
withdraw and voiding the proof brief filed by Audlehelm.
On August 5—with a proof of service dated August 2—Wilson filed a pro
se motion requesting an extension of time to file a brief and a renewed motion for
the appointment of counsel.
On August 8, Audlehelm received in the mail a copy of the supreme court
order removing him from Wilson’s appeal. He contacted the appellate clerk’s
office and then went to office to look at the filings. Upon personally reviewing the
document, Audlehelm informed the supreme court he had not filed the
“withdrawal of resistance” and that he had not signed the document. He then
spoke with the county attorney and Des Moines law enforcement to report the
fraudulent document. Audelhelm prepared a motion requesting review of the
order for withdrawal, which was served by mail on Wilson and filed August 10.
On August 11, three law enforcement officers went in an unmarked
vehicle to Wilson’s residence to serve a search warrant. They saw Wilson
(whom they recognized) sitting in a vehicle outside the residence. He was on his
cell phone. The officers stopped their vehicle facing Wilson’s vehicle. Officer
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Denise Schafnitz got out of the vehicle and walked toward Wilson. Though not in
uniform, her badge was on her belt and her firearm was exposed. Wilson put his
truck into reverse and sped away. A marked police car joined the ensuing chase,
but Wilson did not stop. Rather, the chase ended when Wilson collided with
another vehicle and fled on foot. He was not apprehended at that time. Upon
executing the search warrant, officers seized a computer, several memory
devices, and two printers. Analysis found no indication of the withdrawal-of-
resistance document on these devices.
On August 23, Wilson filed a resistance to Audlehelm’s motion to review
the order removing him as appellate counsel.
On September 20, law enforcement officers, including Officer Patrick
Moody and his canine, went to Wilson’s residence to execute a search warrant
and an arrest warrant. They had been informed Wilson may be hiding in a fake
wall in the home. When they entered the home, no one responded to their calls.
Wilson was located by the police dog in a hole in the basement floor, covered by
a plastic tub. Wilson’s laptop computer was seized. No relevant evidence was
found on the laptop when it was analyzed.
Wilson was charged with falsifying a public document and forgery. Wilson
was appointed a public defender but he then retained private counsel, Robert
Wright Jr., who entered his appearance on November 15, 2011. Trial was
scheduled for December 14 but was rescheduled many times thereafter.
Attorney Wright filed a motion to withdraw on January 4, 2012. The
motion was denied. Attorney Wright filed a second motion to withdraw on
January 25, which was granted on February 14.
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On July 25, 2012, Wilson filed a pro se “notice of intent to call expert
witnesses and motion for compensation of witnesses,” in which he asserted he
“requires the services and expert witness in the area of forensic handwriting
analysis” and “also requires the general services of a private investigator.” He
filed a pro se motion for appointment of counsel. On September 4, Wilson filed
an “application for payment of court-appointed private investigator”—a document
indicating he was assisted by Christine Branstad.
A hearing was held on September 6 addressing Wilson’s motion for court-
appointed counsel. On September 10, the district court approved Wilson’s
September 4 application for payment of court-appointed private investigator.
Wilson asked that the court appoint Christine Branstad as his attorney, but the
court noted it was required to go through proper procedures and could not
appoint a particular private attorney. The district court appointed Wilson new
counsel, Michael Said, and authorized a private investigator. Attorney Said was
allowed to withdraw on September 17, and Christine Branstad was then
appointed to represent Wilson.
On December 10, 2012, Wilson filed a motion in limine seeking to have
any evidence of where he was located when arrested excluded as irrelevant and
unfairly prejudicial. The State resisted, arguing that the defendant’s flight was
relevant to his consciousness of guilt and his motive and intent to remain free
pending the appeal. The court ruled evidence of flight was admissible and
denied the motion.
At the jury trial, Officers Schafnitz and Moody testified as to their
involvement with apprehending Wilson. Wilson did not testify. The court did not
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instruct the jury on the significance of Wilson’s flight from the police or his hiding
when he was eventually arrested. Wilson was convicted as charged.
Wilson filed motions for judgment of acquittal, new trial, and judgment
notwithstanding the verdict. He argued the verdicts were contrary to the weight
of the evidence, citing State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). He also
contended the court erred in denying his motion in limine. The State resisted,
arguing evidence of the defendant’s flight to avoid apprehension was properly
admitted and not unduly prejudicial. It also asserted the verdicts were not
contrary to the weight of the evidence, citing Ellis and reciting the proper
standard the court is to consider (“A verdict is contrary to the weight of the
evidence where ‘a greater amount of credible evidence supports one side of an
issue or cause than another.’”). The State concluded,
The evidence presented at trial supports the jury’s verdict. The
State does not concede the Defendant’s recitation of evidence in
his Motions is entirely reflective of all the evidence presented at
trial. The Court observed trial and is aware of the evidence and
arguments presented. There are no grounds on which the court
could determine the evidence presented is insufficient to support
the jury verdict.
The court denied the posttrial motions “for the reasons as set forth by the State’s
resistance. There exist no factual or legal grounds to grant the Defendant’s
motions.”
Wilson appeals, contending the district court abused its discretion in
allowing evidence of his flight from police and applied the wrong standard in
ruling on his motion for new trial. He also asserts his trial counsel was
constitutionally ineffective.
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II. Scope and Standards of Review.
We review evidentiary rulings for an abuse of discretion. State v. Putnam,
848 N.W.2d 1, 8 (Iowa 2014). We will not find an abuse of discretion unless the
trial court exercises its discretion “on grounds or for reasons clearly untenable or
to an extent clearly unreasonable.” Id. (internal quotation marks and citation
omitted). “Even if a trial court has abused its discretion, prejudice must be shown
before we will reverse.” Id.
“The district court has broad discretion in ruling on a motion for new trial.”
State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). “On a weight-of-the-
evidence claim, appellate review is limited to a review of the exercise of
discretion by the trial court, not of the underlying question of whether the verdict
is against the weight of the evidence.” Id. at 203.
Claims of ineffective assistance of counsel are grounded in the Sixth
Amendment and, therefore, our review is de novo. State v. Gines, 844 N.W.2d
437, 440 (Iowa 2014).
III. Discussion.
A. Evidence of flight. Wilson contends the trial court abused its discretion
in denying his motion in limine to exclude evidence concerning his flight from
police. He asserts the testimony by Officers Schafnitz and Moody was irrelevant
and constituted improper character evidence.
Relevant evidence is that which has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Iowa R. Evid.
5.401. Evidence of flight or concealment has long been held to be relevant and
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probative of consciousness of guilt. State v. Ash, 244 N.W.2d 812, 816 (Iowa
1976) (“Evidence of flight may be considered in determining guilt or innocence.”);
State v. Wimbush, 150 N.W.2d 653, 656 (Iowa 1967) (“We have held many times
that evidence of escape from custody and flight of an accused is admissible as a
criminating circumstance.”); see also United States v. Thompson, 690 F.3d 977,
991 (8th Cir. 2012) (“It is ‘well established’ that evidence of flight ‘is admissible
and has probative value as circumstantial evidence of consciousness of guilt. . . .
‘[I]t is today universally conceded that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and
related conduct, are admissible as evidence of consciousness of guilt, and thus
of guilt itself.’” (quoting United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir.
1991))). Our supreme court has stated that a jury instruction concerning flight of
a defendant is “rarely advisable.” State v. Bone, 429 N.W.2d 123, 126 (Iowa
1988). Moreover, “[u]nless some evidence exists at the time of flight regarding
an accusation of the specific crime charged, and the defendant’s flight is shown
to be prompted by an awareness of that accusation and an effort to avoid
apprehension or prosecution, it will be error to give a flight instruction.” Id. at
126-27. Nonetheless, the court has not retreated from the principle that evidence
of flight is admissible. See id. at 127. (“Here, the concededly admissible
evidence of flight and the inferences to be drawn therefrom were neither
enhanced nor diminished by the court’s improvident, but relatively balanced,
comment upon it.”)
Wilson argues, however, there is no connection between his alleged
forgery and his flight from police on August 11 and his efforts to hide from police
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on September 20. He claims there is no evidence showing he was aware of the
accusations of forgery or falsifying public documents. However, we conclude the
evidence was sufficient from which the district court could preliminarily determine
Wilson knew when he fled from the officers on August 11 the fraudulent filing had
resulted in the August 4 court order removing Audelheim, (and may have been
aware Audlehelm had requested a review of the court’s order, informing the court
he had not filed the motion). See id. at 126 (noting “the trial court should assure
itself that some evidence exists regarding an accusation of the specific crime
charged before instructing the jury that flight may be considered in its
determination of guilt”). Wilson filed a response to Audlehelm’s motion to review
on August 23. Wilson’s hiding from police on September 20 was not so remote
in time the district court was required to find that evidence was irrelevant. We
find no abuse of discretion in the trial court’s finding the evidence relevant.
Wilson maintains that even if relevant, the evidence was inadmissible as
evidence of bad character under Iowa Rule of Evidence 5.404(b). He also
argues the evidence was unfairly prejudicial under rule 5.403. We discussed in
the preceding paragraphs the non-character purpose of showing Wilson’s motive
to delay the final ruling on his appeal. See State v. Nelson, 791 N.W.2d 414, 425
(Iowa 2010) (noting that under rule 5.404(b) “other crimes, wrongs, or acts
evidence is admissible if it is probative of some fact or element in issue other
than the defendant's general criminal disposition”).
As noted recently by our supreme court, “The purpose of all evidence is to
sway the fact finder.” State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013),
(alterations and citation omitted). Yet, even relevant evidence is inadmissible “if
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its probative value is substantially outweighed by the danger of unfair prejudice.”
Iowa R. Evid. 5.403. “Exclusion is required only when evidence is unfairly
prejudicial in a way that substantially outweighs its probative value. Unfair
prejudice is the undue tendency to suggest decisions on an improper basis,
commonly though not necessarily, an emotional one.” Huston, 825 N.W.2d at
537 (alterations and citation omitted).
Wilson argues the sensational facts of his flight from police and his
subsequent discovery overwhelm the evidence of the crimes with which he is
charged. However, the district court could have concluded the evidence was
probative of the State’s theory of the case, which was that Wilson was highly
motivated to delay his appeal and prolong his freedom, and committed forgery to
do so. The evidence of his flight supported that theory and weighed in favor of
allowing the testimony concerning his flight. We note, too, that the officers’
testimony did not sensationalize the defendant’s conduct, but explained the
chronology of the investigation. We find no abuse of discretion.
B. New trial. Wilson contends the trial court ruled on his motion for new
trial on a sufficiency-of-the-evidence standard rather than on the weight-of-the-
evidence standard he raised. He points to the district court’s explanation that the
ruling was “for the reasons as set forth by the State’s resistance” and the State’s
inclusion in its resistance that “[t]here are no grounds on which the court could
determine the evidence presented is insufficient to support the jury verdict.”
(Emphasis added.) But we conclude the motion and the resistance made clear
that the ground on which a new trial was urged was the weight-of-the-evidence.
Both cited State v. Ellis, where our supreme court held that “‘contrary to . . . the
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evidence’ in [Iowa Rule of Criminal Procedure 2.24(2)(b)(6)] means ‘contrary to
the weight of the evidence.’” 578 N.W.2d 655, 659 (Iowa 1998). We find no
reason to believe the district court considered an improper standard in ruling on
the defendant’s motion for new trial.
“Trial courts have wide discretion in deciding motions for new trial.” Id.
However, trial courts have been cautioned “to exercise this discretion carefully
and sparingly when deciding motions for new trial based on the ground that the
verdict of conviction is contrary to the weight of the evidence.” Id.
The standard we apply in determining whether the district
court has abused its discretion in granting a new trial on a weight-
of-the-evidence claim was aptly stated by one court in this passage:
The discretion of the trial court should be
exercised in all cases in the interest of justice, and,
where it appears to the judge that the verdict is
against the weight of the evidence, it is his imperative
duty to set it aside. “We do not mean . . . that he is to
substitute his own judgment in all cases for the
judgment of the jury, for it is their province to settle
questions of fact; and, when the evidence is nearly
balanced, or is such that different minds would
naturally and fairly come to different conclusions
thereon, he has no right to disturb the findings of the
jury, although his own judgment might incline him the
other way. In other words, the finding of the jury is to
be upheld by him as against any mere doubts of its
correctness. But when his judgment tells him that it is
wrong, that, whether from mistake, or prejudice, or
other cause, the jury . . . erred, and found against the
fair preponderance of the evidence, then no duty is
more imperative than that of setting aside the verdict,
and remanding the question to another jury.”
State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003) (citations omitted). We find
no abuse of discretion in the district court’s denial of Wilson’s motion for new trial.
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C. Ineffectiveness claim. Wilson also contends his trial counsel offered
constitutionally defective assistance in failing to object to the prosecutor’s closing
argument and in failing to request a ruling on his request for a handwriting expert.
Two elements must be established to show the ineffectiveness of defense
counsel: (1) trial counsel failed to perform an essential duty; and (2) this omission
resulted in prejudice. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). The
inability to prove either element is fatal to the claim. Id. “The initial requirement
for a due process claim based on prosecutorial misconduct is proof of
misconduct.” Id. “Trial counsel has no duty to raise an issue that lacks merit.”
State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014).
1. Closing argument. Wilson argues trial counsel was ineffective in
failing to object to the prosecutor’s closing argument, complaining that the
prosecutor’s statement “provides a concrete opinion on the creation of the
alleged forgery.”
“Counsel is entitled to some latitude during closing argument in analyzing
the evidence admitted in the trial.” Graves, 668 N.W.2d at 874 (citation and
internal quotation marks omitted). The State is permitted to draw conclusions
and argue any permissible inferences reasonably flowing from the record, so
long as the facts are not misstated. State v. Williams, 334 N.W.2d 742, 744
(Iowa 1983).
The jury was instructed, “Evidence respecting handwriting may be given
by experts, by comparison, or by comparison by the jury, with writings of the
same person which are proved to be genuine.” The prosecutor’s comments
suggested the jury compare the signatures at issue:
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When you get back to the jury room, you can look at these. The
handwriting can be reviewed by you, the jury, and what do we
notice about those two signatures? Well, the real one is a little
thinner and lighter. It looks like it was written a little more smoothly.
The forged one is thicker and almost looks shaky, as if someone
took the real signature, put a piece of paper over the top of it and
traced it, and had to do it slowly and couldn’t do it smoothly like
when you’re really signing your name.
2. No ruling on pro se request for handwriting expert. Here,
Wilson’s contention is that had he been “given access to a handwriting expert he
would have been able to present a more thorough defense.” A defendant is not
entitled to perfect representation, but rather only that which is within the range of
normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
We preserve both claims of ineffective assistance of counsel for possible
postconviction relief proceedings. See State v. Clay, 824 N.W.2d 488, 501 (Iowa
2012) (setting out proper practice when dealing with multiple ineffective-
assistance claims).
AFFIRMED.