               IN THE SUPREME COURT OF IOWA
                              No. 13–0712

                         Filed February 19, 2016

                        Amended June 30, 2016


STATE OF IOWA,

      Appellee,

vs.

JOHN ARTHUR WILSON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.



      A defendant seeks further review of a court of appeals decision

affirming his convictions for forgery and falsifying a public document.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.



      Nicholas Dial of Benzoni Law Office, P.L.C., Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, Kelli Huser and Kevin Cmelik,

Assistant Attorney Generals, John P. Sarcone, County Attorney, and

Justin Allen, Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

         The State charged the defendant with forgery and falsifying a

public document.      After a jury found the defendant guilty, the district

court sentenced him to a term of imprisonment.              The defendant

appealed. We transferred the case to the court of appeals, and the court

of appeals affirmed the convictions.      The defendant asked for further

review, which we granted.       On further review, we allow the court of

appeals decision to stand as the final decision of this court as to the

district court’s denial of the motion for new trial and the ineffective-

assistance-of-counsel claims.     We affirm the court of appeals decision

affirming the district court’s admission of evidence of the defendant’s

flight from law enforcement on August 11, 2011, because it was

admissible as evidence of his consciousness of guilt for the charged

crimes. We reverse the court of appeals decision affirming the district

court’s admission of evidence of the defendant’s attempt to evade

detection by law enforcement on September 20, 2011, because it was

inadmissible as evidence of his consciousness of guilt for the charged

crimes.     However, because we find the improper admission of this

evidence to be harmless error, we affirm in part and vacate in part the

decision of the court of appeals and affirm the judgment of the district

court.

         I. Background Facts and Proceedings.

         In 2010, a jury convicted John Arthur Wilson of second- and third-

degree theft.      The district court sentenced Wilson to a term of

imprisonment not to exceed seven years but released him from custody

pending resolution of his appeal after he posted an appeal bond. The

court appointed John Audlehelm to represent him in the appeal.
                                       3

      On July 12, 2011, the day before his proof brief was due in that

appeal, Wilson filed an ethics complaint against Audlehelm with the Iowa

Supreme Court Attorney Disciplinary Board and a pro se motion with

this court requesting new counsel.         At approximately 10:10 p.m. that

night, Wilson delivered copies of the ethics complaint and the pro se

motion to Audlehelm at his home.           Wilson’s mother accompanied him

and filmed his interaction with Audlehelm. In both the complaint and

the motion, Wilson alleged Audlehelm had not adequately prepared to

represent him in his appeal.

      On July 13, Audlehelm filed by mail a resistance to Wilson’s pro se

motion for new counsel and a motion requesting a one-week extension of

the deadline for filing the proof brief. On July 18, Audlehelm filed the

proof brief in person at the clerk’s office.

      On July 27, the clerk’s office received a document captioned

“withdrawal of resistance to motion for new counsel and motion to void

brief and to withdraw.”      The document purportedly bore Audlehelm’s

signature, as did an accompanying certificate of service indicating copies

of the document had been mailed to Wilson and the criminal appeals

division of the attorney general’s office.      However, the director of the

criminal appeals division testified at trial the division never received a

copy of the document.

      On August 2, Wilson filed by mail a document captioned “motion

for enlargement of time for continuance of deadlines to file a pro se

supplemental brief and a second motion for new counsel.” The motion

stated Audlehelm had “filed a motion to withdraw” as Wilson’s counsel

on July 27.

      On August 4, this court issued an order granting the motion for

appointment of new counsel.          The order referenced the document
                                    4

purportedly signed and filed by Audlehelm on July 27. The clerk mailed

copies of the order to Wilson and Audlehelm that day.

      On August 8, Audlehelm learned that someone had filed the

document purporting to bear his signature when he received by mail his

copy of this court’s order granting the motion for appointment of new

counsel. Audlehelm went to the clerk’s office to inspect the document

referenced in the order.    After determining he did not sign or file the

document, he reported the fraudulent filing to law enforcement and the

county attorney’s office.   On August 10, Audlehelm filed a motion for

review of the order granting the motion for appointment of new counsel

in which he asked this court to review the document filed on July 27.

      Detective Denise Schafnitz, a detective assigned to the unit of the

Des Moines Police Department that investigates crimes involving forgery

and fraud, led the initial investigation into the filing of the forged

document.    Based on her investigation, law enforcement obtained an

arrest warrant for Wilson and a search warrant authorizing a search of

Wilson’s home for evidence that might establish he produced the forged

document.

      On August 11, three law enforcement officers headed to Wilson’s

home to serve the warrants.     As they neared the home, they observed

Wilson sitting behind the wheel of his truck talking on his cell phone.

The officers parked their unmarked Ford Crown Victoria directly in front

of the truck. Detective Schafnitz exited the Crown Victoria and began

walking toward Wilson’s truck.     Though she was not in uniform, she

wore her gun and her badge on her belt over her right hip. Wilson put

his truck into reverse and began backing down the street.       Detective

Schafnitz ran back to the Crown Victoria.     The officers began chasing

Wilson, and he turned a corner while still driving in reverse. After the
                                         5

officers followed, Wilson drove over the curb and through a yard before

taking off again in another direction. At that point, a marked patrol car

arrived and took over the chase, but Wilson did not stop. The marked

patrol car pursued Wilson at high speeds through a residential

neighborhood for several blocks, but eventually lost sight of him. The

chase ended after Wilson disabled his truck in an accident and fled on

foot.   Because the officers were unable to locate Wilson, they did not

arrest him that day. The officers executed the search warrant and seized

one computer, two printers, several USB drives, CDs, DVDs, and several

papers referencing this court from Wilson’s home. The seized materials

yielded no physical evidence Wilson produced the forged document in his

home.

        On September 20, law enforcement officers again went to Wilson’s

home to execute two arrest warrants 1 and another search warrant

authorizing a search of Wilson’s home for evidence relating to the forged

document. The officers had been advised that Wilson might hide in a

hole in the basement floor or behind a fake wall. Officer Patrick Moody,

an officer assigned to the special weapons and tactics team trained to

execute high-risk warrants, assisted in the execution of the warrants. A
canine also accompanied the officers.           When the officers entered the

home, no one responded to their verbal warnings or the barking canine.

With the canine’s assistance, officers located Wilson hiding in a hole in

the basement floor beneath a blue plastic storage bin.                 The officers

arrested Wilson and seized a laptop computer found during their search



        1The arrest warrant based on the investigation into the forged document filed
with this court remained outstanding. The court issued a second arrest warrant after
Wilson eluded law enforcement officers on August 11.
                                         6

of his home. Forensic analysis of the laptop failed to yield any evidence

related to the forged document.

      The State charged Wilson with forgery and falsifying a public

document. See Iowa Code § 715A.2(1)(b), .2(2)(b) (2011); id. § 718.5. In

addition,   the   State   separately     charged   Wilson   with   eluding   law

enforcement based on the events of August 11.           See id. § 321.279(3).

Trial for all three matters was originally set for December 14. During a

hearing on Wilson’s motion to dismiss the charges, his counsel orally

moved to sever the eluding charge on the ground that it was unrelated to

the forgery and falsifying charges. The district court granted the motion

after the State declined to resist it.

      The district court rescheduled the trial on the forgery and falsifying

charges numerous times over the course of the following year. Wilson

was represented by different court-appointed and privately retained

counsel at various times, but he was unrepresented for several months

after his privately retained counsel withdrew from representing him. On

July 25, 2012, while Wilson was unrepresented by counsel, he filed a pro

se “notice of intent to call expert witnesses and motion for compensation

of witnesses” in which he requested the services of a private investigator

and a forensic handwriting expert. On September 10, the district court

appointed a private investigator to assist Wilson. However, the court did

not explicitly address Wilson’s request for a forensic handwriting expert.

      On December 5, a jury trial on the forgery and falsifying-a-public-

document charges commenced. Before trial, Wilson’s counsel moved in

limine to exclude “all references to Wilson being found by law

enforcement in a hole in the basement of a house, and any reference to

Wilson’s pending eluding charge or to Wilson’s prior bad acts.”              The

judge denied the request to exclude all references to Wilson eluding law
                                           7

enforcement and hiding in the hole.             However, the judge excluded all

references to hoarding or the condition of Wilson’s home upon his

counsel’s oral request.

       At trial, Detective Schafnitz and Officer Moody testified regarding

the events that took place on August 11 and September 20, 2011, but

did not reference the State charging Wilson with the crime of eluding a

law enforcement vehicle. Christine Mayberry, deputy clerk of appellate

courts, testified regarding relevant practices of the clerk’s office and the

online docket search feature on the judicial branch website, which

permits members of the public to view a list of documents filed in any

criminal appeal.       The district court also admitted into evidence two

photos showing the hole in the basement floor where Wilson hid from

police and the blue plastic storage bin he held over his head. Testimony

established the State never conducted a forensic examination on the

original document retrieved from the clerk’s office. 2

       Before deliberations began, the judge did not instruct the jury

regarding permissible inferences it could draw from flight evidence, but

the judge did instruct the jury on aiding and abetting. The jury returned

a guilty verdict on both charges.
       Wilson filed a motion for new trial, arguing the district court erred

in denying the motion in limine and the verdicts were contrary to the

weight of the evidence.         In support of the motion, Wilson submitted



       2Detective  Schafnitz testified she sent the document to the division of criminal
investigation laboratory (DCI) and requested a forensic document examination after she
collected the document from the clerk’s office on August 24, 2011. However, she had to
retrieve the document from the DCI before it completed its examination because she
received notice of the December 2011 trial date. Detective Schafnitz testified she
received other notices regarding the trial date when the district court rescheduled the
trial on subsequent occasions.
                                     8

affidavits by two jurors stating every juror who expressed an opinion

agreed that the testimony establishing he ran from police and hid in the

hole to avoid apprehension by law enforcement was the most compelling

evidence of his guilt. The affidavits also stated the attesting jurors would

have found Wilson not guilty but for the evidence establishing he evaded

law enforcement. The State resisted the motion for new trial, arguing the

evidence of Wilson’s efforts to avoid apprehension was properly admitted

and not unduly prejudicial. The State also argued the verdicts were not

contrary to the weight of the evidence. The court denied the motion for

the reasons set forth in the State’s resistance, concluding there were no

factual or legal grounds on which to grant the motion for new trial.

      Wilson   appealed,   contending    the   district   court    abused   its

discretion in admitting the flight evidence and applied the incorrect

standard in reviewing his motion for new trial. He also argued his trial

counsel was constitutionally ineffective for failing to object to a statement

the prosecutor made during closing arguments and failing to request a

ruling on his request for a forensic handwriting expert.

      We transferred the case to the court of appeals.            The court of

appeals first found the district court did not abuse its discretion in

denying the motion in limine, noting that Iowa courts have long held

evidence of flight or concealment to be admissible evidence of

consciousness of guilt. Second, the court of appeals found the district

court did not abuse its discretion in denying the motion for new trial,

having found no reason to conclude it considered an improper standard

in ruling on the motion. Third, the court of appeals declined to address

the merits of the ineffective-assistance-of-counsel claims, indicating

Wilson could bring them in a future postconviction relief action.
                                       9

      Wilson requested further review of the district court rulings on the

motion in limine and motion for new trial. We granted further review.

      II. Issues.

      “On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.”

State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).                 In exercising our

discretion,   we    address   only   the   admissibility   of    the   flight   and

concealment evidence. We let the court of appeals decision stand as the

final decision of this court as to the district court’s denial of the motion

for new trial and Wilson’s ineffective-assistance-of-counsel claims.

      III. Preliminary Matter.

      At oral argument, Wilson’s attorney acknowledged Iowa Rule of

Evidence 5.606(b) prohibits this court from considering the affidavits

addressing statements made during the course of the jury’s deliberations

and the effect particular evidence had upon the minds of particular

jurors. Therefore, in this appeal we will not consider the affidavits.

      IV. Scope of Review.

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

Tyler, 867 N.W.2d 136, 152 (Iowa 2015). An abuse of discretion occurs

when a district court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable. State v. Brown,

856 N.W.2d 685, 688 (Iowa 2014). When the district court exercises its

discretion based on an erroneous application of the law, it exercises its

discretion on grounds clearly untenable.        State v. Dudley, 856 N.W.2d

668, 675 (Iowa 2014).
                                      10
     V.  Whether the District Court Abused Its Discretion in
Denying the Motion in Limine and Admitting the Flight and
Concealment Evidence.
      The State argues Iowa Rule of Evidence 5.404(b) is not applicable

to our analysis. We disagree. This appeal requires us to determine the

admissibility of evidence of acts Wilson committed when officers

attempted to arrest him, not acts he committed at the time the crimes for

which he was charged were committed.                  Thus, it concerns the

admissibility of evidence of acts extrinsic to the crimes charged.           See

State v. Nelson, 791 N.W.2d 414, 420 (Iowa 2010) (distinguishing

between acts inextricably intertwined with the crime charged and acts

extrinsic to the crime charged).       Accordingly, we must analyze the

admissibility   of   the   evidence   of   Wilson’s    attempted   flight    and

concealment under Iowa Rule of Evidence 5.404(b).           See id.; see also

United States v. Sims, 617 F.2d 1371, 1378 (9th Cir. 1980) (applying

federal rule of evidence 404(b) to evidence of flight extrinsic to the crime

charged); 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence § 404.12[3], .20[2][b], at 404-37 to -38, -45 (Mark S. Brodin ed.,

2d ed. 2015) (stating federal rule of evidence 404(b) governs the

admissibility only of acts extrinsic to the crime charged).

      A.    General Principles Regarding Iowa Rule of Evidence

5.404(b).   Wilson contends the district court abused its discretion in

admitting the evidence of his flight from police and his concealing himself

in the hole in his basement. Iowa Rule of Evidence 5.404(b) governs the

admissibility of evidence of other crimes, wrongs, and acts. It provides

that such evidence “is not admissible to prove the character of a person

in order to show that the person acted in conformity therewith” but may

“be admissible for other purposes.”        Iowa R. Evid. 5.404(b).          Thus,

evidence of other crimes, wrongs, or acts is not admissible to prove the
                                          11

defendant has a criminal disposition and therefore was more likely to act

in conformity with that disposition by committing the crime in question.

Nelson, 791 N.W.2d at 425.               Rule 5.404(b) operates as a rule of

exclusion. Id. This does not mean courts must exclude all evidence of

other crimes, wrongs, or acts. Rather, such evidence “is admissible if it

is probative of some fact or element in issue other than the defendant’s

general criminal disposition.” Id.

       For a court to admit evidence of other wrongful acts in a criminal

trial, the prosecutor must articulate a noncharacter theory of relevance.

Id. The court then must determine whether the evidence is relevant to a

legitimate issue in dispute other than the defendant’s general propensity

to commit wrongful acts. Id.; State v. Shanahan, 712 N.W.2d 121, 136–

37 (Iowa 2006). “If the court determines the evidence is relevant to a

legitimate issue in dispute, the court must determine whether the

probative value of the other crimes, wrongs, or acts evidence is

substantially outweighed by the danger of unfair prejudice to the

defendant.” Nelson, 791 N.W.2d at 425.

       It is well-settled law that the act of avoiding law enforcement after

a crime has been committed may constitute circumstantial evidence of

consciousness of guilt that is probative of guilt itself. See, e.g., State v.

Wimbush, 260 Iowa 1262, 1268, 150 N.W.2d 653, 656 (1967); State v.

Hetland, 141 Iowa 524, 527, 119 N.W. 961, 962 (1909). 3 However, we

       3Our  analysis concerning “flight evidence” applies not only to evidence showing
flight from law enforcement, but also to evidence showing a defendant attempted to
avoid law enforcement by other means. See, e.g., State v. Mitchell, 450 N.W.2d 828,
830, 832 (Iowa 1990) (considering a suicide attempt in the back of a police car);
Wimbush, 260 Iowa at 1268, 150 N.W.2d at 656 (listing acts that may constitute
circumstantial evidence of consciousness of guilt); see also 2 McCormick on Evidence
§ 263, at 311–12 (7th ed. 2013) (listing acts that may constitute circumstantial evidence
of consciousness of guilt, including “flight from the scene, from one’s usual haunts, or
from the jurisdiction after the crime; assuming a false name; changing appearance;
                                            12

have long recognized courts must treat such evidence with caution.

State v. Bone, 429 N.W.2d 123, 126–27 (Iowa 1988) (requiring flight

instructions to acknowledge “there may be reasons for the flight (or

concealment)       which     are    fully   consistent      with    innocence”       and

acknowledging the “potential unreliability of flight evidence”); State v.

Marsh, 392 N.W.2d 132, 134 & n.1 (Iowa 1986) (concluding flight

instructions are “rarely advisable” and acknowledging some courts have

concluded “flight evidence has only marginal probative value”); State v.

Poe, 123 Iowa 118, 129–30, 98 N.W. 587, 591–92 (1904) (concluding

flight instructions may not describe flight as “presumptive evidence of

guilt”).   Likewise, the United States Supreme Court has “consistently

doubted the probative value in criminal trials of evidence that the

accused fled the scene of an actual or supposed crime.” Wong Sun v.

United States, 371 U.S. 471, 483 n.10, 83 S. Ct. 407, 415 n.10, 9 L. Ed.

2d 441, 452 n.10 (1963).

       Most federal courts and many state courts now recognize the

probative value of flight as circumstantial evidence of guilt depends on

the degree of confidence with which the finder of fact may draw a chain

of four inferences. 4      2 McCormick on Evidence § 263, at 314 (7th ed.
_____________________
resisting arrest; attempting to bribe arresting officers; forfeiture of bond by failure to
appear or departure from the trial while it is proceeding; escapes or attempted escapes
from confinement; and suicide attempts by the accused”).
       4The  observation that the probative value of flight evidence depends on four
inferences was famously articulated by the United States Court of Appeals for the Fifth
Circuit in United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). The majority of
the federal circuit courts of appeals now acknowledge the probative value of flight
depends on the chain of inferences articulated in Myers. United States v. Russell, 662
F.3d 831, 850 (7th Cir. 2011); United States v. Wilson, 385 F. App’x 497, 501 (6th Cir.
2010); United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005); United States v.
Wright, 392 F.3d 1269, 1278 (11th Cir. 2004); United States v. Witherspoon, No. 94–
5678, 1995 WL 434826, at *2–3 (4th Cir. July 25, 1995); United States v. Hankins, 931
F.2d 1256, 1261 (8th Cir. 1991); United States v. Silverman, 861 F.2d 571, 581 (9th Cir.
1988). No other federal circuit has disagreed. Likewise, several state supreme courts
                                           13

2013). For evidence the defendant sought to avoid apprehension to be

probative of his or her actual guilt with respect to the crime charged, the

evidence must support a chain of inferences (1) from the defendant’s

behavior     to   avoidance      of   apprehension,       (2)   from    avoidance      of

apprehension to consciousness of guilt, (3) from consciousness of guilt to

consciousness of guilt concerning the crime charged, and (4) from

consciousness of guilt concerning the crime charged to actual guilt of the

crime charged. See, e.g., United States v. Hankins, 931 F.2d 1256, 1261

(8th Cir. 1991).

       Similarly, a few courts state the requirement that evidence of flight

must support a chain of inferences from the defendant’s conduct to

actual guilt for the charged crime a little differently, requiring

demonstration of some “nexus” between the specific act of avoidance the

state seeks to admit and the charged crime as a prerequisite to

admissibility.     See Escobar v. State, 699 So. 2d 988, 995 (Fla. 1997)

(concluding admissibility requires “evidence which indicates a nexus

between the flight, concealment, or resistance to lawful arrest and the

crime(s) for which the defendant is being tried in that specific case”),

abrogated on other grounds by Connor v. State, 803 S.2d 598 (Fla. 2001);

State v. Pagan, 631 S.E.2d 262, 266 (S.C. 2006) (noting such evidence “is

relevant when there is a nexus between the flight and offense charged”
_____________________
assess the admissibility of flight evidence by examining the degree of confidence with
which the chain of inferences articulated in Myers may be drawn. See, e.g., Ex parte
Jones, 541 So. 2d 1052, 1056 (Ala. 1989); State v. Kelly, 770 A.2d 908, 932 (Conn.
2001); Decker v. State, 971 A.2d 268, 275 (Md. 2009); State v. Cooke, 479 A.2d 727,
732–33 (R.I. 1984).
         Additionally, trial courts in some states must determine there is evidence
supporting the four inferences in the record before delivering flight instructions to a
jury. See, e.g., State v. Frazier, 622 N.W.2d 246, 259 (S.D. 2001). At least one
jurisdiction requires trial courts to instruct the jury on the four inferences when giving
flight instructions. See State v. Perry, 725 A.2d 264, 267 (R.I. 1999).
                                           14

and its admissibility turns on “whether the totality of the evidence

creates an inference that the defendant had knowledge that he was being

sought by the authorities”); Ricks v. Commonwealth, 573 S.E.2d 266, 268

(Va. Ct. App. 2002) (concluding admissibility requires a “nexus

. . . between the flight and the alleged offense” such that the defendant

“had some knowledge that he might be a suspect”). 5

       In other words, the probative value of evidence showing a

defendant avoided apprehension turns on the circumstances under

which the avoidance occurred. See Bone, 429 N.W.2d at 126; cf. State v.

Kreps, 650 N.W.2d 636, 644 (Iowa 2002) (discussing circumstances

under which flight may constitute grounds for reasonable suspicion).

For any valid inference of guilt to be drawn by the jury from flight

evidence, the district court must assure itself there is some evidence in

the record to support the inferential chain between the defendant’s act of

avoidance and consciousness of guilt for the crime charged.

       Consequently, before a court may admit evidence of prior acts of

flight or avoidance, the court must assure itself there is adequate

evidence to reasonably support the inferential chain between each act

sought to be admitted and actual guilt for the crime charged. See, e.g.,

        5Other states require similar proof before a flight instruction may be given. See,

e.g., People v. Larson, 572 P.2d 815, 817–18 (Colo. 1977) (en banc) (concluding a flight
instruction is not error when the “defendant had reason to believe that he had
committed a crime, that his identity was known, that his pursuit and apprehension
would probably ensue, and that he fled or concealed himself for any length of time to
frustrate this apprehension”); State v. Wrenn, 584 P.2d 1231, 1234 (Idaho 1978)
(requiring “other circumstances present and unexplained which, together with the
departure, reasonably justify an inference that it was done with a consciousness of guilt
and in an effort to avoid apprehension or prosecution based on that guilt” before a flight
instruction may be given). We adopted this approach to flight instructions in Bone.
429 N.W.2d at 126–27 (“Unless 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.”).
                                     15

United States v. Peltier, 585 F.2d 314, 323 (8th Cir. 1978) (“The validity of

drawing these inferences in turn depends upon the number of

evidentiary manifestations suggesting defendant’s decision to flee was

prompted by considerations related to the crime in question.”). An act of

flight has only marginal probative value as circumstantial evidence of

guilt unless the act itself and the surrounding circumstances “reasonably

justify an inference that it was done with a consciousness of guilt and in

an effort to avoid apprehension or prosecution based on that guilt.”

Bone, 429 N.W.2d at 125 (quoting State v. Wrenn, 584 P.2d 1231, 1234

(Idaho 1978)). For an extrinsic act of flight to be admissible, the facts

and circumstances must be sufficient to support an inference of

consciousness of guilt for the crime charged.

      The chronology of events constitutes a material consideration in

assessing the inferential value of flight evidence. United States v. Russell,

662 F.3d 831, 851 (7th Cir. 2011).         The inference that flight was

motivated by the defendant’s desire to avoid prosecution for the crime

charged is strongest when the defendant flees in its immediate aftermath

or shortly after being accused thereof. Id. The more remote in time the

alleged flight becomes from the commission or accusation of the charged

crime, “the greater the likelihood that it resulted from something other

than feelings of guilt concerning that offense.” United States v. Myers,

550 F.2d 1036, 1051 (5th Cir. 1977).

      Innocent people sometimes avoid being apprehended for crimes

they did not commit

      not necessarily because they fear that the jury will not
      protect them, but because they do not wish their names to
      appear in connection with criminal acts, are humiliated at
      being obliged to incur the popular odium of an arrest and
      trial, or because they do not wish to be put to the annoyance
      or expense of defending themselves.
                                    16

Alberty v. United States, 162 U.S. 499, 511, 16 S. Ct. 864, 868, 40 L. Ed.

1051, 1056 (1896); see also Wong Sun, 371 U.S. at 483 n.10, 83 S. Ct. at

415 n.10, 9 L. Ed. 2d at 452 n.10. Consequently, the inferential chain

connecting an act of flight to guilt for the crime charged can reasonably

be drawn only when the timing of the act suggests “the sudden onset or

the sudden increase of fear in the defendant’s mind that he or she will

face apprehension for, accusation of, or conviction of the crime charged.”

United States v. Dillon, 870 F.2d 1125, 1128 (6th Cir. 1989); see United

States v. Akers, 215 F.3d 1089, 1102–03 (10th Cir. 2000).         Evidence

establishing the immediacy of flight relevant to other significant events in

the case ordinarily constitutes the best available evidence from which to

infer consciousness of guilt for the particular crime charged.

      The immediacy requirement is important.             It is the
      instinctive or impulsive character of the defendant’s
      behavior, like flinching, that indicates fear of apprehension
      and gives evidence of flight such trustworthiness as it
      possesses. The more remote in time the alleged flight is from
      the commission or accusation of an offense, the greater the
      likelihood that it resulted from something other than feelings
      of guilt concerning that offense.

Myers, 550 F.2d at 1051 (citation omitted).

      However, establishing immediacy is less critical to establishing the

probative value of flight when the evidence conclusively establishes the

defendant knew he or she was suspected of the charged crime at the time

of flight. See, e.g., United States v. Jackson, 572 F.2d 636, 641 (7th Cir.

1978) (acknowledging “the importance of the immediacy factor would be

greatly diminished, if not rendered irrelevant, when there is evidence that

the defendant knows that he is accused of and sought for the

commission of the crime charged”).       This conclusion squares with our

prior holding that instructing a jury on flight does not constitute error

when the evidence suggests the defendant knew he or she had been
                                           17

accused of the charged crime and sought to avoid apprehension or

prosecution for that specific crime. See Bone, 429 N.W.2d at 125–27.

       The bottom line is that for evidence of flight to have probative

value, the critical question is not whether the state had formally accused

the defendant of the charged crime, but whether the evidence permits a

reasonable inference the defendant acted out of fear of apprehension for

the charged crime. 6

       Of course, even when the evidence suggests consciousness of guilt

relating to the crime charged, it does not inevitably constitute evidence of

actual      guilt   concerning    every     element     of   the    charged     offense.

1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:4

(4th ed. 2013) (“[S]ometimes evidence of a guilty mind relating to the

charged offense does not tend to prove particular points essential to

guilt.”).    Nonetheless, in such cases flight may retain some probative

value in that it supports the inference the defendant performed the

criminal act itself. See United States v. Kang, 934 F.2d 621, 628 (5th Cir.

1991) (noting the probative value of flight is relative and depends on the


       6In   drawing this conclusion, we leave undisturbed our prior holding that flight
instructions may not be given unless the defendant had knowledge relating to an
accusation of the specific charged crime. See Bone, 429 N.W.2d at 126–27. Our
disapproval of flight instructions in Bone was premised in part on the dangers
associated with a court commenting upon or drawing attention to specific evidence
presented during trial. Id. at 125. Other courts are in accord with our conclusion that
evidence establishing the defendant’s actual knowledge that he or she had been
formally accused of or charged with the specific crime at issue does not constitute a
prerequisite to admissibility. See, e.g., Dillon, 870 F.2d at 1128 (6th Cir. 1989)
(rejecting the argument that evidence of flight may be admitted “only when that flight
occurs after the defendant learns of the charges against him or her”); State v. Nemeth,
438 A.2d 120, 123 (Conn. 1980) (“Proof that a suspect had actual knowledge that he
was being charged with a criminal offense is not required for the admission of evidence
of his flight.”); State v. Walker, 595 P.2d 1098, 1102 (Kan. 1979) (“Actual knowledge by
a defendant that he is being sought for the crime in question is not a prerequisite to the
admission of evidence of flight as tending to show consciousness of guilt but merely
goes to the weight to be given such evidence.”).
                                     18

elements of the offense established by other evidence, stipulation, or

inference); United States v. Owens, 460 F.2d 467, 470 (5th Cir. 1972)

(rejecting the notion that flight evidence could “reasonably be used to

prove any or all elements” of the charged offense yet acknowledging the

probative value of such evidence).

         Once a district court admits such evidence, it is for the jury to

decide whether to credit the inferential chain leading from a particular

act of the defendant to guilt for the crime charged. See, e.g., Wimbush,

260 Iowa at 1267–68, 150 N.W.2d at 656. The fact that the jury has the

ultimate say as to what, if anything, evidence of flight establishes does

not diminish the responsibility of the district court to preliminarily

determine whether evidence of a prior act is relevant before admitting it

into evidence and allowing the jury to consider it.

         Determining that flight constitutes evidence of consciousness of

guilt is only the first step in determining its admissibility under rule

5.404(b).    See Nelson, 791 N.W.2d at 425; Shanahan, 712 N.W.2d at

136–37.     Next, the district court must consider whether the probative

value of the flight evidence is substantially outweighed by the danger of

unfair prejudice to the defendant.        See Nelson, 791 N.W.2d at 425;

Shanahan, 712 N.W.2d at 137.           Unfair prejudice arises when the

evidence “appeals to the jury’s sympathies, arouses its sense of horror,

provokes its instinct to punish, or . . . may cause a jury to base its

decision on something other than the established propositions in the

case.”     Shanahan, 712 N.W.2d at 137 (quoting State v. Plaster, 424

N.W.2d 226, 231 (Iowa 1988)).        In determining whether the probative

value of the evidence is substantially outweighed by the danger of unfair

prejudice, courts should consider
                                     19
      the need for the evidence in light of the issues and the other
      evidence available to the prosecution, whether there is clear
      proof the defendant committed the prior bad acts, the
      strength or weakness of the evidence on the relevant issue,
      and the degree to which the fact finder will be prompted to
      decide the case on an improper basis.

Nelson, 791 N.W.2d at 425 (quoting State v. Taylor, 689 N.W.2d 116, 124

(Iowa 2004)). When the probative value of evidence of a defendant’s prior

act is substantially outweighed by the danger of unfair prejudice to the

defendant, the court must exclude it. State v. Elliott, 806 N.W.2d 660,

675 (Iowa 2011); Nelson, 791 N.W.2d at 425; State v. Mitchell, 633

N.W.2d 295, 298–99 (Iowa 2001).

      B. Application of Rule 5.404(b) to Wilson’s Objections. Wilson

moved before the district court to exclude all references to his eluding

law enforcement on August 11 and all references to his hiding in a hole

in his basement on September 20.            Of course, in analyzing the

admissibility of evidence regarding distinct prior acts, a court must

separately consider the probative value of each act in light of the other

evidence adduced at trial. See Iowa Rs. Evid. 5.402, 5.404(b).

      1.   Application to Wilson’s flight on August 11.   To facilitate our

evaluation of the relevance of each act Wilson sought to exclude, we will

briefly review the timeline leading up to those acts.

      On July 27, 2011, the clerk’s office received the document

purporting to bear Audlehelm’s signature.        The certificate of service

indicated a copy of the document was mailed to the criminal appeals

division of the attorney general’s office, but the director of that division

testified it was never received.    On August 2, Wilson filed a second

motion for appointment of new counsel in which he acknowledged the

document purportedly filed by Audlehelm on July 27. On August 4, this

court issued an order in which it acknowledged the same document. The
                                    20

clerk mailed copies of this order to Wilson and Audleheim. On August 8,

Audlehelm received the copy of the order the clerk mailed to him and

learned that someone filed the document purporting to bear his

signature.    Thereafter,   he   notified the   clerk’s   office,   the   police

department, and the county attorney’s office. On August 10, he filed a

motion in which he requested this court to review the document.             On

August 11, Wilson fled from law enforcement when Detective Schafnitz

and her fellow officers arrived at his home to serve the search and arrest

warrants.

      Several significant events related to the charged crimes took place

in the days immediately leading up to the flight from which a jury could

reasonably infer that Wilson fled from law enforcement due to his

consciousness of guilt for those crimes.     Although these events by no

means conclusively establish Wilson knew law enforcement sought him

in connection with the charged crimes, the record was sufficient to

support the reasonable inference that Wilson would have experienced a

sudden increase in fear that he would be accused of the charged crimes

had he in fact filed the forged document with this court. See Dillon, 870

F.2d at 1128. The fact Audlehelm received a copy of the August 4 order

by mail on August 8 strongly supports the inference that Wilson received

a copy of the order before he fled from police on August 11. This fact

would have put Wilson on notice that Audlehelm would soon discover the

forgery, as the clerk mailed him a copy of the order. Additionally, the

online docket search feature of the judicial branch website could have

alerted Wilson that Audlehelm had filed a motion seeking review of the

forged document. This fact also supports the inference Wilson knew law

enforcement was investigating the forgery.
                                            21

       Furthermore, Wilson’s conduct included driving in reverse down

the street and around a corner, driving over the curb onto a lawn, driving

at high speeds while a marked police car chased him, and fleeing on foot

after getting into an accident that disabled his vehicle. Though Detective

Schafnitz and the other officers wore plain clothes and approached

Wilson in an unmarked car, Detective Schafnitz wore her badge on her

belt as she approached Wilson’s truck, and Wilson continued to flee once

the marked car joined the chase. Wilson offered no alternate explanation

for his bizarre and evasive conduct. 7 Nor do his past crimes offer any

plausible explanation, as he was out on bond awaiting his appeal on the

underlying theft convictions on the day he fled from Detective Schafnitz

and her fellow officers. Finally, although Wilson committed the separate

crime of eluding law enforcement during his flight, see Iowa Code

§ 321.279, he did not make the decision to flee after being caught in the

act of committing a crime other than the crimes charged.

       We conclude there was ample evidence in the record to support the

inferential chain from Wilson’s flight from law enforcement on August 11

to his consciousness of guilt for the charged crimes. From the evidence

presented, a jury could reasonably infer Wilson desired to avoid

apprehension by law enforcement for the charged crimes.                         Thus, the

testimony concerning Wilson’s flight from law enforcement met the first

prerequisite to admissibility.

       The prosecution needed to show only that Wilson aided or abetted

the commission of the forgery and falsification of a public document. It

did not need to show Wilson actually created or filed the document

       7When    a defendant offers an alternate explanation for his or her evasive
conduct, it is up to the jury to decide whether to credit it. See, e.g., State v. Laffey, 600
N.W.2d 57, 59 (Iowa 1999) (noting credibility determinations are for the jury).
                                          22

bearing the forged signature.                The flight from law enforcement

constituted circumstantial evidence Wilson knew someone had filed the

document and someone had forged the signature thereon.

       Turning to the question of prejudice, because the State was unable

to conduct forensic testing on the forged document, the evidence of flight

was important to the prosecution’s case in light of the limited evidence

available to it. Detective Schafnitz testified that she personally observed

Wilson in the act of fleeing, and her testimony was not presented in an

inflammatory manner, as it was brief relative to the length of the trial as

a whole. See Peltier, 585 F.2d at 324. In addition, she testified to only

the bare facts concerning the chase and the ensuing accident, omitting

details that might have provoked the jury’s instinct to punish Wilson.

Thus, because the danger of unfair prejudice to Wilson did not

substantially outweigh the probative value of the testimony concerning

his flight from law enforcement, we find this evidence met the second

prerequisite to admissibility.

       Because we find the evidence concerning the circumstances

existing   when     Wilson     fled   from     law   enforcement     supported      the

reasonable inference that he fled to avoid apprehension for the crimes

charged and the danger of unfair prejudice to Wilson did not

substantially outweigh the probative value of the flight evidence, we

conclude the district court did not abuse its discretion in admitting the

testimony describing Wilson’s flight from law enforcement on August 11. 8

       2. Application to Wilson hiding on September 20. We next consider

the admissibility of the evidence detailing the events of September 20,


       8The  State also argues the flight evidence was admissible to show Wilson sought
to delay his incarceration for the prior theft convictions. We need not reach this issue
in connection with Wilson’s flight on August 11.
                                     23

when law enforcement discovered Wilson hiding under a plastic storage

bin in a hole in his basement. Officer Moody’s testimony was sufficient

to support the reasonable inference that         Wilson concealed himself to

avoid law enforcement, as it established that officers verbally identified

themselves well before the canine located him in the hole in his

basement floor. But the evidence as a whole seriously undermines our

confidence that Wilson’s act of concealment was motivated by his

consciousness of guilt concerning the forgery and falsification charges,

indicative of his actual guilt of those crimes, or intended to delay his

incarceration for the prior theft convictions.

      The prosecution offered no evidence that events related to the

forgery and falsification charges occurred in the weeks leading up to

September 20 that might have caused Wilson to fear he would face

apprehension for, accusation of, or conviction of those specific crimes or

cause him to believe evading arrest would delay his incarceration for the

prior theft convictions.   See Dillon, 870 F.2d at 1128.        On August 23,

Wilson resisted Audlehelm’s motion for review of the order granting the

motion for appointment of new counsel. However, no witness testified

that Wilson resisted the motion for review of the order, nor was a copy of

the motion produced at trial.          Additionally, Detective Schafnitz’s

testimony established Wilson knew three officers had witnessed him

engaging in the separate criminal act of eluding law enforcement on

August 11.

      Under    these   circumstances,     we     cannot   say    the   evidence

establishing Wilson hid from law enforcement lacked any relevance

whatsoever, but we conclude its probative value as circumstantial

evidence that he forged or falsified the document filed with this court was

marginal at best. Consequently, the danger of unfair prejudice arising
                                          24

from its introduction substantially outweighed its minimal probative

value. Therefore, we conclude the district court abused its discretion in

admitting both the testimony establishing officers found Wilson hiding in

a hole in his basement on September 20 and the photographs depicting

the hole and the blue plastic storage bin Wilson held over his head. 9

       C.   Harmless Error.         When a district court improperly admits

flight evidence, its admission does not necessarily require reversal. See

State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). Under Iowa Rule of

Evidence 5.103, we may not find error on any ruling admitting evidence

unless the ruling affected “a substantial right of the party” opposing

admission.      For nonconstitutional errors, we begin our analysis by

presuming the substantial rights of the defendant have been prejudiced.

Dudley, 856 N.W.2d at 678.

       One way to show erroneously admitted evidence did not impact a

verdict is to show it was merely cumulative. State v. Elliott, 806 N.W.2d

660, 669 (Iowa 2011). Here, with respect to its probative value on the

question of whether Wilson demonstrated consciousness of guilt for the

charged     crimes,    the    improperly       admitted    concealment      evidence

constituted cumulative evidence.           At best, the concealment evidence

tended to prove precisely the same point the properly admitted flight

evidence tended to prove—that Wilson committed a criminal act

connected to the forged document. See Westergard v. Des Moines Ry.,

243 Iowa 495, 500, 52 N.W.2d 39, 42 (1952) (acknowledging cumulative

evidence is “evidence of the same kind and to the same point as that

previously introduced”). In short, we are certain the jury verdict would


       9We do not decide whether this evidence would be admissible in Wilson’s trial on

the charge of eluding law enforcement. See Iowa Code § 321.279(3).
                                    25

have been the same without the improperly admitted evidence. A retrial

would be futile.    Accordingly, we find the district court’s improper

admission of the evidence relating to the September 20 incident was

harmless error.

      VI. Disposition.

      We find the district court properly admitted the evidence of

Wilson’s flight from law enforcement on August 11, 2011. Although we

find the court erred in admitting evidence that Wilson hid from law

enforcement on September 20, 2011, we find the error was harmless.

The court of appeals opinion stands as the final decision of this court as

to Wilson’s motion for new trial and ineffective-assistance-of-counsel

claims. Therefore, we affirm in part and vacate in part the decision of the

court of appeals and affirm the judgment of the district court.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

      All justices concur except Waterman, J., who concurs specially.
                                    26
                                                 #13–0712, State v. Wilson

WATERMAN, Justice (concurring specially).
      I join the majority opinion except for division V(B)(2). I respectfully

disagree with the majority’s conclusion that the district court abused its

discretion by allowing the arresting officers’ testimony that Wilson hid in

a hole in his basement to evade detection when they knocked on his door

and announced their presence on September 20, 2011.            The majority

correctly holds the district court properly allowed testimony that Wilson

fled from police on August 11.      The evidence of his concealment on

September 20 is admissible for the same reasons—to show Wilson’s

consciousness of guilt and motive and intent to remain free pending his

appeal.   As the majority acknowledges, “At best, the concealment

evidence tended to prove precisely the same point the properly admitted

flight evidence tended to prove—that Wilson committed a criminal act

connected to the forged document.” The majority is splitting hairs to find

the evidence of flight admissible but not the evidence of concealment.

      I would affirm the decision of the court of appeals, which held the

district court properly allowed evidence of Wilson’s efforts to evade arrest

on both dates. As the court of appeals concluded:

             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.

(Emphasis added.)
                                    27

      On both August 11 and September 20, Wilson sought to escape

capture.   The mere passage of time does not render the later incident

inadmissible. I agree with the court of appeals’ conclusion that “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.” Wilson

knew what he did. That another six weeks went by is irrelevant when he

understood why the police came knocking. See United States v. Russell,

662 F.3d 831, 851 (7th Cir. 2011) (noting passage of time between crime

and flight is less important if not irrelevant “when there is evidence that

the defendant knows that he is accused of and sought for the

commission of the crime charged.” (quoting United States v. Ajijola, 584

F.3d 763, 766 (7th Cir. 2009))).    True, Wilson was also charged with

eluding based on his August 11 flight, but the district court allowed

separate trials, and the jury at the forgery trial was not informed of the

eluding charge.    The majority fails to refute the State’s theory of

admissibility that on both dates Wilson sought to prolong his freedom by

avoiding capture. It matters not that on September 20 Wilson may have

believed the police were knocking on his door with an arrest warrant for

eluding as well as for forgery.      After all, Wilson’s concealment on

September 20 was part of the same chain of events. He fled from the

police on August 11 to avoid arrest for forgery, and he hid from police for

the same reason the next time they came for him. Neither Wilson nor the

majority offers any other explanation for his conduct on August 11 and

September 20.     The weight of the evidence of Wilson’s flight and

concealment was for the jury.

      We are reviewing the district court for abuse of discretion. In my

view, the district court had discretion to admit or exclude the evidence
                                    28

that Wilson hid in the hole in his basement on September 20. I agree

with the majority that this evidence was cumulative.

      Today’s decision should not be seen as a retreat from the

admissibility of evidence of flight and concealment.         The majority

acknowledges it is “well-settled law” that such evidence is “probative of

guilt.” The Kentucky Supreme Court noted the biblical parallel for the

evidentiary “inference that the guilty run away but the innocent remain,

which echoes more eloquent language from the Bible: ‘The wicked flee

where no man pursueth; but the righteous are bold as a lion.’ ”

Rodriquez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003) (quoting

Proverbs 28:1).   As the United States Court of Appeals for the Eighth

Circuit recently reiterated:

      [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.

United States v. Thompson, 690 F.3d 977, 991 (8th Cir. 2012) (emphasis

omitted) (quoting United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir.

1991)).

      For these reasons, I specially concur in today’s majority opinion.
