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
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
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
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.