                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0071
                             Filed February 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID FRANKLIN GOOD JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.



      Defendant claims the district court abused its discretion in admitting

evidence at trial. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

        David Good Jr. appeals from his conviction and sentence for arson in the

first degree, in violation of Iowa Code sections 712.1(1) and 712.2 (2011). Good

maintains the district court abused its discretion in admitting into evidence letters

written by him. Specifically, he maintains the court abused its discretion because

the letters were not relevant, the letters were unduly prejudicial, and the State

failed to provide notice it was utilizing a rebuttal witness to contest Good’s alibi

defense. Good’s argument regarding the State’s alleged failure to provide notice

of an alibi rebuttal witness is not preserved, and we do not consider it. Because

we find the letters were relevant and were not unduly prejudicial, the district court

did not abuse its discretion in admitting them at trial. We affirm.

I. Background Facts and Proceedings.

        In December 2012, the home Good’s wife was staying in caught fire.

Later, Good admitted to Burlington police he had set the fire. He was arrested

and charged with arson in the first degree. Good was incarcerated pending trial.

        On August 29, 2013, an inmate found handwritten letters in the jail library

and turned them over to the jailer. Good later admitted writing the letters in

question. He wrote them to fellow inmate Roseanne Krasuski. Good wrote, in

part:

        [T]he point that I am trying to make, is that you could help my
        situation out if you could testify in my behalf and I in turn could help
        you out! I own a [description of car and license plate number]. If it
        could be said that we were at Crapo Park (together) from 11:00 PM
        until 11:55 PM, you know talking about me getting a divorce and us
        inside the car “making love” it would help us out a lot. I was at
        Crapo Park down where the (2) big guns point out over the river,
        between these time zones, by myself. But I do not have an alibi.
        No one saw me. But if you could step in and say that we were
                                           3


       together from this time to this time and this is what we were doing I
       could walk away from all of this.

       On September 4, 2013, Good filed a notice of affirmative defense stating

he had an alibi for the night in question. In the notice, Good claimed he was with

his girlfriend, Roseanne Krasuski.

       Two days later, the State filed a motion to strike the affirmative defense for

not complying with Iowa Rule of Criminal Procedure 2.11(11), which requires the

defendant assert his intent to rely on an alibi no later than forty days after

arraignment. The district court held a hearing on the matter September 9, 2013,

and denied the State’s motion to strike.

       On October 11, 2013, the State filed additional minutes of testimony. The

minutes listed an assistant jail administrator as a witness who was prepared to

testify regarding the letters written by Good.

       Trial commenced on November 5, 2013. Good objected when the State

moved to admit the letters into evidence. He argued the letters were not relevant

and were more prejudicial than probative.1 In response, the State offered a

redacted version of the letters.     The court overruled Good’s objections and

allowed the redacted letters to be admitted into evidence. Good later objected to

the letters on the grounds of “untimely filing.” He argued, “I’ve got the informal

discovery dated October 21st, yet the State had this information for three months

before physical copies were received, and that was just a few weeks before trial,

your Honor.” The court overruled the objection.



1
  At trial, Good also argued that the letters were inadmissible because they were
hearsay. He does not make that argument on appeal.
                                            4


       On November 8, 2013, the jury returned a verdict finding Good guilty of

arson in the first degree. He was sentenced to a term of incarceration not to

exceed twenty-five years. Good appeals.

II. Standard of Review.

       We generally review evidentiary rulings for an abuse of discretion. State

v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). An abuse of discretion occurs

when the trial court abuses its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. Id.

III. Discussion.

       Good maintains the district court abused its discretion by admitting letters

he wrote into evidence at trial. He maintains the letters should not have been

admitted because they were not relevant, they were unduly prejudicial, and the

State failed to timely file notice of an alibi rebuttal witness.

       A. Alibi Rebuttal Witness.

       On appeal, Good contends the letters were inadmissible because Iowa

Rule of Criminal Procedure 2.11(11)(a) requires the prosecuting attorney to file

written notice of any witnesses the State proposes to offer to rebut or discredit

the defendant’s alibi, and the State did not do so in this case. This alleged error

is not preserved.

       At trial, Good’s attorney objected to the admission of the letters because

of “untimely filing.” Both the State and the court understood Good’s objection to

concern Iowa Rule of Criminal Procedure 2.19(2) (“Additional witnesses in

support of the indictment or trial information may be presented by the prosecuting

attorney if the prosecuting attorney has given the defendant’s attorney of
                                         5


record . . . a minute of such witness’s evidence . . . at least ten days before the

commencement of the trial.”). The State responded that additional minutes of

testimony referencing the letters were filed on October 11, 2013—almost one

month before trial commenced on November 5, 2013. The court ruled, “That

objection you made goes to whether the State provided discovery as required

under the Rule of Criminal Procedure. . . . The Court will advise the jury that the

objection is overruled.”

       In Good’s reply brief, he contends that if error is not preserved, trial

counsel was ineffective for failing to preserve error. Ineffective-assistance-of-

counsel claims are an exception to the general rule of error preservation. State

v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). However, issues may not be

raised for the first time in a reply brief. See State v. Wilet, 305 N.W.2d 454, 458

(Iowa 1981) (“We will not consider matters raised for the first time in a reply

brief.”); see also Iowa R. App. P. 6.903(4) (“The appellant may file a brief in reply

to the brief of the appellee.” (emphasis added)). Obviously the purpose of the

rule is to allow both parties the opportunity to brief the issue. Accordingly, this

issue shall not be addressed further but may be raised in possible

postconviction-relief proceedings.

       B. Relevance.

       Evidence is relevant if it 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. Here,

Good filed notice of his intent to establish an alibi at trial. Good never formally

withdrew the notice of defense. However, he maintains the information in the
                                          6


letters was not relevant because he “never argued his alibi defense” and it was

“functionally abandoned.”     In essence, Good argues that until he presented

evidence of an alibi, the State’s evidence in their case-in-chief rebutting the alibi

was not relevant.     Good does not cite authority that recognizes functional

abandonment of a defense. Additionally, the State had to present its case-in-

chief before the defendant could have “functionally abandoned” the alibi defense

under these facts, as during opening statements defense counsel argued there

was no evidence placing the defendant at the scene. At the time the court ruled

on the objection, the issue of whether Good had an alibi was still very much in

dispute. Although we would agree in general that evidence to rebut an alibi

defense is not probative of the issues until evidence of the alibi is presented,

here the letters clearly reflect such statements against his interest such as: “I do

not have an alibi,” “I am going to beat this charge,” “you could help my situation

out if you could testify,” and “there is just so much I want to tell you about it but I

am afraid to for fear that they might find this letter and try to use it against me.”

The letters clearly depict Good attempting to persuade the other individual to

testify on his behalf in full knowledge that he did not have an alibi and was afraid

to tell her facts in fear the letter would be used against him at trial.         Such

evidence would clearly be more probative in rebuttal if Good had presented

evidence of an alibi, but we nonetheless conclude the letters contained evidence

probative to the issues in the State’s case-in-chief, specifically the identity of the

arsonist. Evidence of “attempted evasion, palpable falsehood, or suppression of

the true facts by one suspected of crime” is not inadmissible hearsay but rather is

“relevant and material on the theory that consciousness of guilt may be inferred.”
                                          7

State v. Crowley, 309 N.W.2d 523, 524 (Iowa Ct. App. 1981) (concluding

statement by defendant soon after his arrest that he was with his girlfriend rather

than at the site of a robbery was properly admitted although defendant had not

yet testified).2

        C. Unduly Prejudicial.

        Good maintains that even if the letters were relevant, they were unduly

prejudicial and should not have been admitted. Iowa Rule of Evidence 5.403

provides for the exclusion of relevant evidence if its probative value is

“substantially outweighed by the danger of unfair prejudice.”

        To determine whether evidence should be excluded under rule 5.403, we

apply a two-part test. State v. Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013).

First, we consider the probative value of the evidence. Id. Next, we balance the

probative value against the danger of its prejudicial or wrongful effect upon the

jury.   See id.    Evidence is unfairly prejudicial when it “appeals to the jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or

triggers other mainsprings of human action that may cause a jury to base its

decision on something other than the established propositions in the case.” Id.

We recognize that “all powerful evidence is prejudicial to one side.” Id. Thus, the

question is “whether the danger of unfair prejudice substantially outweighs the

evidence’s probative value.”     Id.   “Unfair prejudice is the undue tendency to

suggest decisions on an improper basis, commonly though not necessarily, an




2
  We suspect Good’s knowledge that the State intended to present the confiscated
letters affected his decision to present the alibi defense.
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emotional one.” State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013) (internal

quotation marks omitted).

       Here, Good’s statements in the letters were probative to whether it was

possible Good had committed the arson. We do not believe unfair prejudice

outweighs the probative value. The letters are not the type of evidence to evoke

emotional responses from the jury. Additionally, it is not unfairly prejudicial to

inform the jury that Good did not have an alibi for the night in question. Good

argues the letters were unduly prejudicial because they made it likely the jury

would convict him for being a “conniving and deceitful” person rather than for

starting the fire. However, the letters were not used to show that Good was

acting in conformity with such bad character. Rather, the letters were probative

of Good’s involvement in the crime.

IV. Conclusion.

       We find Good’s argument regarding the State’s failure to provide notice of

an alibi rebuttal witness is not preserved, and we do not consider it. Because we

find the letters were relevant and were not unduly prejudicial, the district court did

not abuse its discretion in admitting them at trial, and we affirm.

       AFFIRMED.
