                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0249
                               Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEAN JOSEPH OTT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Thomas W. Mott,

Judge.




      Dean Joseph Ott appeals his conviction and sentence for second-degree

theft. AFFIRMED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R.

Wilson, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Judge.

       Dean Ott emerged from the back door of a garage with a shopping cart full

of tools. A bystander, who knew the property owners had moved to Colorado,

called the police. The City of Monroe police chief responded to the call and spoke

to Ott, who readily admitted the items in the cart were not his. Ott told the police

chief one of the owners gave him permission to take them for safekeeping. The

police chief immediately contacted one of the owners. She vehemently denied

giving Ott permission to take the tools. At that point, Ott changed his tune and

suggested someone sounding like her authorized the taking. Later, the second

property owner also denied giving Ott permission to remove the tools.

       The State charged Ott with third-degree burglary and second-degree theft.

A jury found him guilty of the second-degree theft charge and the district court

subsequently imposed sentence.

       On appeal, Ott contends the district court abused its discretion in prohibiting

a witness from testifying and in excluding evidence of legal proceedings involving

the home from which the tools were taken. He also contends his trial attorney was

ineffective in failing to challenge a reference to a prior bad act on the ground that

its probative value was substantially outweighed by its prejudicial effect.

I.     Evidentiary Issues

       A. Exclusion of Witness

       Three days before trial, Ott filed a witness list identifying a person who had

not previously been designated to testify. The State immediately filed a motion to

exclude the witness. The State pointed out that depositions were first held almost

a year earlier, trial already had been postponed once, State witnesses were slated
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to travel from Colorado for the trial, and Iowa Rule of Criminal Procedure 2.13(4)

authorized exclusion of witness testimony under these circumstances.

       On the morning of trial, Ott’s attorney informed the court the newly

designated witness would testify that “at some point prior to the incident with Mr.

Ott,” the owner of the tools told the witness “he needed to get someone to get the

tools and valuables out of the home before” legal proceedings “went through.”

Counsel acknowledged the State “would perhaps want to have somebody

investigate or look into the story” even if the witness were made available for an

interview. The prosecutor responded by noting defense counsel “hit the nail on

the head.” He argued the State was prejudiced by the late designation due to the

“timing, manpower, just to find [the witness], interview him, set up depositions, and

then arrange for that defense at trial,” as well as the prior postponement of trial,

and the attendance of out-of-state witnesses. The district court granted the motion

to exclude. The court stated:

             Given the length of time the case has been on file and the
       preparation time, the late filing, the Court will sustain the motion to
       exclude the lately named witness. . . . It would prejudice the State,
       and there’s—I don’t see an adequate reason to wait until now with
       something that would seem to be so central to the—the planned
       defense, so sustained.

Our review is for an abuse of discretion. See State v. Babers, 514 N.W.2d 79, 82

(Iowa 1994) (“The sanctions under [the predecessor to Rule 2.13(4)] are

discretionary and will be reversed only if the trial court abuses its discretion.”).

       Rule 2.13(4) states:

               Failure to comply. If the defendant has taken depositions
       under rule 2.13(1) and does not disclose to the prosecuting attorney
       all of the defense witnesses (except the defendant and surrebuttal
       witnesses) at least nine days before trial, the court may order the
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       defendant to permit the discovery of such witnesses, grant a
       continuance, or enter such other order as it deems just under the
       circumstances. It may, if it finds that no less severe remedy is
       adequate to protect the state from undue prejudice, order the
       exclusion of the testimony of any such witnesses.

Ott concedes the rule’s prerequisites for judicial intervention—taking of depositions

and failure to designate witnesses at least nine days before trial—were satisfied.

See State v. Richards, 809 N.W.2d 80, 89 (Iowa 2012). But, in his view, the district

court abused its discretion in excluding the witness because he “only very recently

learned of” the witness, he “was prepared to make [the witness] available to the

State” for a deposition, and he was “likely to suffer” prejudice “by the exclusion of

[the] testimony.”

       Ott’s recent discovery of the witness does not ameliorate the prejudice to

the State arising from the lack of timely notice. See State v. Hoosman, No. 09-

0067, 2010 WL 1579428, at *13 (Iowa Ct. App. Apr. 21, 2010) (affirming the

exclusion of evidence where the defense gave the State one day notice and “there

was little time for the State to combat the unexpected reputation evidence”). As

Ott’s attorney conceded, the prosecutor likely would have been required to do

more than simply take his deposition to prepare for the newly designated witness.

        We turn to Ott’s claim of prejudice. See id. at 90 (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial

right . . . is affected.” (quoting Iowa R. Evid. 5.103(a))). As in Richards, “[t]he State

had a powerful case against” Ott. Id. A witness saw Ott leave the owners’ garage

with the tools; the police chief contacted one property owner in Ott’s presence and

confirmed she never gave him permission to take the tools; and both property

owners testified they did not allow Ott to remove the items. Ott’s proposed witness
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might have maligned one of the property owners, but he could have done little to

impugn the police chief’s testimony, which was supported by a video recording of

his interaction with Ott.

       We conclude the district court did not abuse its discretion in excluding the

witness. See State v. Toney, No. 17-1072, 2018 WL 2731634, at *2 (Iowa Ct. App.

June 6, 2018) (“Because of the extreme lateness of the notice and the lack of

relevance of the proffered testimony, the district court did not abuse its discretion

in excluding . . . a witness.”).

       B. Exclusion of Evidence on Legal Proceedings

       The State filed a motion in limine seeking to exclude anticipated evidence

“concerning Civil proceedings initiated by the City of Monroe against the named

victims in this case in regards to their home in Monroe.” The State asserted the

evidence “would be irrelevant.” At trial, Ott’s attorney argued he intended to offer

evidence “that the city was in the process of taking the home” and

       [t]hat would fit in with [his client’s] defense that he was told he could
       go in there to get those items, and that it was actually a request of
       [one of the property owners] that he do so, so that the items could be
       taken out before the proceedings had gone any further.

The district court preliminarily granted the motion but authorized Ott to make an

offer of proof at the appropriate time. Ott did so, eliciting testimony from one of the

property owners outside the jury’s presence about legal proceedings initiated by

the City. See City of Monroe v. Nicol, 898 N.W.2d 899, 902-–03 (Iowa Ct. App.

2017). The district court reaffirmed its prior ruling.

       Ott argues the evidence was “relevant and probative to whether he had

permission to possess the tools.” Relevant evidence is evidence having “any
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tendency to make a fact more or less probable than it would be without the

evidence” and “[t]he fact is of consequence in determining the action.” Iowa R.

Evid. 5.401. “Relevant evidence is admissible. . . . Irrelevant evidence is not

admissible.” Iowa R. Evid. 5.402. “The district court rulings on relevance of

evidence are reviewable for abuse of discretion.” State v. Tipton, 897 N.W.2d 653,

691 (Iowa 2017).

       We discern no abuse. As discussed, the property owners adamantly denied

giving Ott permission to take the tools. We are hard-pressed to discern how the

legal proceedings against them made their unequivocal denials less probable. We

affirm the district court’s exclusion of the proposed evidence.

II.    Ineffective Assistance of Counsel

       At trial, the police chief testified that one of the property owners believed Ott

had stolen from him in the past. Ott’s attorney objected on the ground the response

went “beyond the scope of the question.” The district court overruled the objection

but gave counsel the chance to “make further record” during the recess. Counsel

did not avail himself of the opportunity.

       After the jury entered its finding of guilt, Ott moved for a new trial on the

ground the “prior bad acts” evidence was inadmissible under Iowa Rule of

Evidence 5.404(b). The district court denied the motion.

       On appeal, Ott argues his trial attorney was ineffective in failing “to properly

object to prior bad acts evidence.” We find the record inadequate to address the

issue. Accordingly, we preserve the claim for postconviction relief. See State v.

Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If the record is insufficient to allow for

a review on direct appeal, we do not reach the issue on direct appeal and allow
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the defendant to raise the claim in a separate postconviction-relief action.”); see

also State v. Albright, ___ N.W.2d ___, ___, 2019 WL 1302384, at *11 (Iowa 2019).

      We affirm Ott’s judgment and sentence for second-degree theft.

      AFFIRMED.
