                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1238 / 12-2274
                            Filed February 19, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK EUGENE YUNGTUM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Paul W. Riffel,

Judge.



      A defendant appeals from the judgment and sentence entered after a jury

verdict of guilty of arson in the second-degree and false reports to law

enforcement. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, and Kasey E. Wadding, County Attorney, for appellee.



      Considered by Tabor, P.J., and McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

       Mark Eugene Yungtum appeals from the judgment and sentence entered

after a jury found him guilty of arson in the second-degree and false reports to

law enforcement. Probation was denied, and the sentences were ordered to run

concurrently. Yungtum asserts that the trial court erred in admitting a photograph

allegedly depicting him, his son, and a dead deer with a red plastic gasoline

container in the background. Because of the claimed error, Yungtum seeks a

new trial.

   I. Background Facts and Proceedings

       At about 11:00 p.m. on the night of March 6, 2006, Yungtum’s neighbors

were awakened by two very loud bangs and immediately noticed that Yungtum’s

house was on fire. Yungtum was found lying in the driveway with a wire around

his neck, a stab wound to his thigh, bruises on his ribcage, burns on his arm, and

abrasions to his head. Yungtum related that he had been attacked by three

masked intruders who had hit him on the back of his head with a board, drug him

by the wire around his neck, otherwise physically assaulted him, and eventually

set the house on fire. Yungtum was taken to a hospital emergency room where

he was examined and treated.           Law enforcement was called, and multiple

pictures were taken of his injuries.

       In interviews with law enforcement, Yungtum immediately blamed Mindy

Riley for the attack.   He related that one of the intruders made a statement

indicating the attack was being made on Riley’s behalf. Yungtum and Riley had

a disagreement over financial matters that could have had an adverse effect on

her because of prior and pending criminal charges.             Law enforcement
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immediately investigated Riley and could find nothing to connect her to the

alleged attack or fire.

       Investigation into the site reflected that gasoline had been used as an

accelerant. A red two-gallon plastic gas container was found on the main floor,

and a red five-gallon plastic container was found in the upstairs hallway.

Yungtum told the investigating officers that he only owned a red metal gas can.

       Yungtum’s financial records were mostly in his pickup the night of the fire.

He explained to law enforcement he had placed them there earlier that evening,

as he was going to see a lawyer the next day relative to his financial issues with

Riley. He owned three guns—one was in his pickup and the other two were later

discovered elsewhere.        There were a number of plastic bins in Yungtum’s

detached    garage    that   contained   movies,   albums,   his father’s   military

memorabilia, photographs, and et cetera.       Youngtum’s home had suffered a

previous fire in 2005. There was evidence at least some of these items had been

in the garage since the earlier fire.

       As a result of the 2005 fire, the second floor of Yungtum’s house remained

unfinished. An accountant reviewed Yungtum’s financial records and testified

that he had received an insurance settlement and had taken out a new mortgage

for the repair work after the 2005 fire. Even though the second floor of the house

had not been finished, all of the funds had been exhausted. At the date of the

2006 fire, Yungtum owed approximately $70,000 on a house mortgage and

$4000 on three credit cards—two of which were over the loan limit—and had

$300 in his personal checking account. Yungtum filed an insurance proof of loss

for $240,000 as the result of the 2006 fire.
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       The State had a physician examine the hospital records and pictures

taken of Yungtum immediately after the reported injuries. The physician reported

there was no indication he was struck on the back of his head and testified that

all of Yungtum’s injuries could have been self-inflicted.

       Among the items found in the garage were photographs which included

one identified as a picture of Yungtum and his son, who was sitting on a deer

Yungtum had shot. There was a red plastic gas can in the background. Where

the picture was taken or who took the picture was unknown, and where it was

taken was a matter of dispute. The trial court admitted the picture into evidence

over Yungtum’s strenuous objection.

   II. Preservation of Error

       Yungtum objected to the admission of the disputed picture based on

relevance and lack of foundation, and moved for a mistrial after its submission

and for a new trial after the verdict was returned. Error has been preserved.

   III. Standard of Review

       Admission of photographic evidence rests largely within the trial court’s

discretion.   Therefore, the appellate court’s review is for abuse of discretion.

State v. Sayles, 662 N.W.2d 1, 8 (Iowa 2003). An abuse of discretion only

occurs when the trial court’s use of discretion is clearly unreasonable or

untenable, meaning it is not supported by substantial evidence or it is based on

an erroneous application of law. Id.

   IV. Discussion

       A demonstrative document is admissible if sufficient evidence is admitted

to sustain the finding of its authenticity. State v. Holderness, 293 N.W.2d 226,
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230 (Iowa 1980). A lack of knowledge as to when the picture was taken or who

took the picture is not dispositive as to its admission. See id. The picture was

obviously introduced to show Yungtum had possession of, or at least probable

access to, a red plastic gas can as shown in the background of the picture. The

only real dispute was to where the picture had been taken. There was testimony

that it appeared to have been taken in Yungtum’s garage, which would enhance

his accessibility to a red plastic gas can. The jury had in evidence several other

pictures of the inside of Yungtum’s garage and had heard the testimony of the

witnesses relative to where the picture had been taken. Other factors besides

the witnesses’ testimony, which are an inherent part of the photograph, can be

taken in consideration to determine the admissibility and authenticity. Id. at 232.

The trial court ruled that Yungtum’s objection was to the weight of the evidence

and not its admissibility.

       Evidence is relevant when 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 then it would be without the evidence. Iowa R. Evid. 5.401;

State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). The existence of the red

plastic gasoline can at the site where Yungtum’s picture was taken would be a

factor that the jury could use in concluding that Yungtum at least had access to a

gasoline can similar to the one found at the fire site.

       “Even relevant evidence may be excluded ‘if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .’”      State v.

Castaneda, 621 N.W.2d 435, 440 (Iowa 2001) (quoting Iowa R. Evid. 5.403).

Unfair prejudice suggests an improper basis for a jury’s decision and usually
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refers to a play on a jury’s emotions rather than a rational decision making

process.      State v. Plaster, 424 N.W.2d 226, 231-32 (Iowa 1988).        There is

nothing about the subject picture that incites any unusual emotional bias or

prejudice.

       The trial court’s decision to admit the subject picture was clearly within its

discretion.

       AFFIRMED.
