                    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
                                         8

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
                                          9


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
                                          10


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
                                          11


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.
