IN THE COURT OF APPEALS OF IOWA
No. 20-1648 Filed November 3, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD ALBERT GODFREY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy,
Judge.
Defendant appeals the denial of his motion to sever the trial of his assault-
with-a-dangerous-weapon charge from the trial on the charges of two counts of
possession of a firearm by a domestic violence offender. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ. 2
GREER, Judge.
The day before his trial on charges for one count of assault with a dangerous
weapon and two counts of possession of a firearm by a domestic violence offender,
Chad Godfrey moved to sever1 the charges into two separate trials. His rationale
was that to prove the possession-of-firearm charges, the State would have to
introduce prior convictions of domestic assault, which would be prejudicial
evidence in the assault case. The district court acknowledged the potential
prejudice but ultimately denied the motion because it was untimely. A jury found
him guilty of all charges. Godfrey now appeals, claiming the court abused its
discretion in denying the motion. In support of this, he cites two reasons for good
cause in the delay to the motion: the COVID-19 pandemic and the late disclosure
of the State’s exhibits. As no good cause existed, we find the district court acted
within its discretion in denying the motion to sever.
I. Background Facts and Proceedings.
On an evening in November 2019, J.F. suffered a beating at gunpoint in
rural Jasper County. After escaping, she ran to her mother’s home, and Godfrey
called to say he was coming to the house. J.F. and her mother called 911, and
law enforcement went to find Godfrey. When they located him, they found his
vehicle stuck in a field, and they recovered a black briefcase that a witness had
seen Godfrey stash in the woods. In the briefcase were two revolvers—one was
loaded. After completing the investigation, in December 2019, a criminal complaint
was initiated against Godfrey. The trial information and written arraignment were
1 Godfrey labeled the filing a motion to bifurcate, but on appeal all parties use the term motion to sever. 3
filed on December 9, 2019, charging Godfrey with one count of assault with a
dangerous weapon and two counts of possession of a firearm by a domestic
violence offender.
Trial began in September 2020. The day before the start of trial, Godfrey
moved to bifurcate, hoping to have the charges heard in two separate trials. A
hearing on the motion was held on the first day of trial. In his motion, Godfrey
asserted he had just received the exhibits the State planned to use to prove his
past domestic violence charges2 and believed the exhibits would be prejudicial to
his current assault charge. At the hearing, Godfrey acknowledged the motion was
untimely—motions to sever are to be made within forty days of filing the trial
information unless there is a showing of good cause. Iowa R. Crim. P. 2.11(2),
(4); see State v. Wagner, 410 N.W.2d 207, 212 (Iowa 1987). In defense of the late
filing, Godfrey argued that “shortly after the trial information was filed, the
coronavirus hit and everything has been up in the air.” The court found that the
filing was untimely and, with all the witnesses subpoenaed and everyone there to
try the case in full, judicial economy weighed against the motion. The court
acknowledged that the evidence of previous assault would cause prejudice in
Godfrey’s case and so crafted, and sought input from Godfrey on, an appropriate
limiting instruction for the jury. Godfrey now appeals the denial of this motion.
II. Preservation of Error.
Preservation of error is disputed in this case. “It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
2 Godfrey stipulated at the pretrial conference that he had two prior domestic assault convictions. 4
district court before we will decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Godfrey asserts he preserved error because he
moved to sever and received a ruling. That said, the State argues that his appeal
of that decision is limited in scope—“the argument advocated on appeal must have
been made in the motion to sever.” State v. Young, No. 09-1938, 2011 WL
4579863, at *5 (Iowa Ct. App. Oct. 5, 2011); see also State v. Sanborn, 564 N.W.2d
813, 815 (Iowa 1997) (“A defendant may not rest an objection on one ground at
trial, and rely on another for reversal on appeal.”). Because of this, the State
believes that Godfrey is limited to arguing his delay was caused by the COVID-19
pandemic.
While it is true that Godfrey’s written motion points to having just received
the exhibits, the concern was not addressed in the hearing on the motion. And the
court’s ruling only addressed the COVID-19 ground:
But for now, on the motion to sever, I’m going to overrule it. I do think there’s prejudice to the assault case by presenting the possession cases. The motion was late. I do understand that there is COVID, but all the witnesses have been subpoenaed, as far as I can tell. We’re all here, ready to try this. I do think the facts would be the same in both cases. And with it being late, and in the interest of judicial economy, I’m going to have the case proceed with all three counts.
The court offered no ruling on whether the timing of the disclosure of evidence
constituted good cause for the delay in the motion. Without a ruling on the issue,
it is not preserved. But, even if it were preserved, Godfrey’s brief offers no legal
authority in support of this argument. And our appellate rules provide that “[f]ailure
to cite authority in support of an issue may be deemed waiver of that issue.” Iowa 5
R. App. P. 6.903(2)(g)(3). As the issue was both not preserved and waived in the
brief, we do not address its merits.
III. Analysis.
We review the district court’s denial of a motion to sever for an abuse of
discretion. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). “The joinder
rule presumes that multiple charges be tried together.” State v. Stark, No. 19-
1990, 2021 WL 1400350, at *5 (Iowa Ct. App. Apr. 14, 2021) (citing Iowa R. Crim.
P. 2.6(1)). “[The defendant] bears the burden of demonstrating that prejudice
exists because of the joinder of offenses, and that this prejudice outweighs the
State’s interest in judicial economy.” State v. Romer, 832 N.W.2d 169, 183 (Iowa
2013). Still, before we reach the prejudice issue, we must determine whether there
was good cause for the tardiness of Godfrey’s motion.
If a defendant does not timely make a motion to sever, they waive their right
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IN THE COURT OF APPEALS OF IOWA
No. 20-1648 Filed November 3, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD ALBERT GODFREY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy,
Judge.
Defendant appeals the denial of his motion to sever the trial of his assault-
with-a-dangerous-weapon charge from the trial on the charges of two counts of
possession of a firearm by a domestic violence offender. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ. 2
GREER, Judge.
The day before his trial on charges for one count of assault with a dangerous
weapon and two counts of possession of a firearm by a domestic violence offender,
Chad Godfrey moved to sever1 the charges into two separate trials. His rationale
was that to prove the possession-of-firearm charges, the State would have to
introduce prior convictions of domestic assault, which would be prejudicial
evidence in the assault case. The district court acknowledged the potential
prejudice but ultimately denied the motion because it was untimely. A jury found
him guilty of all charges. Godfrey now appeals, claiming the court abused its
discretion in denying the motion. In support of this, he cites two reasons for good
cause in the delay to the motion: the COVID-19 pandemic and the late disclosure
of the State’s exhibits. As no good cause existed, we find the district court acted
within its discretion in denying the motion to sever.
I. Background Facts and Proceedings.
On an evening in November 2019, J.F. suffered a beating at gunpoint in
rural Jasper County. After escaping, she ran to her mother’s home, and Godfrey
called to say he was coming to the house. J.F. and her mother called 911, and
law enforcement went to find Godfrey. When they located him, they found his
vehicle stuck in a field, and they recovered a black briefcase that a witness had
seen Godfrey stash in the woods. In the briefcase were two revolvers—one was
loaded. After completing the investigation, in December 2019, a criminal complaint
was initiated against Godfrey. The trial information and written arraignment were
1 Godfrey labeled the filing a motion to bifurcate, but on appeal all parties use the term motion to sever. 3
filed on December 9, 2019, charging Godfrey with one count of assault with a
dangerous weapon and two counts of possession of a firearm by a domestic
violence offender.
Trial began in September 2020. The day before the start of trial, Godfrey
moved to bifurcate, hoping to have the charges heard in two separate trials. A
hearing on the motion was held on the first day of trial. In his motion, Godfrey
asserted he had just received the exhibits the State planned to use to prove his
past domestic violence charges2 and believed the exhibits would be prejudicial to
his current assault charge. At the hearing, Godfrey acknowledged the motion was
untimely—motions to sever are to be made within forty days of filing the trial
information unless there is a showing of good cause. Iowa R. Crim. P. 2.11(2),
(4); see State v. Wagner, 410 N.W.2d 207, 212 (Iowa 1987). In defense of the late
filing, Godfrey argued that “shortly after the trial information was filed, the
coronavirus hit and everything has been up in the air.” The court found that the
filing was untimely and, with all the witnesses subpoenaed and everyone there to
try the case in full, judicial economy weighed against the motion. The court
acknowledged that the evidence of previous assault would cause prejudice in
Godfrey’s case and so crafted, and sought input from Godfrey on, an appropriate
limiting instruction for the jury. Godfrey now appeals the denial of this motion.
II. Preservation of Error.
Preservation of error is disputed in this case. “It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
2 Godfrey stipulated at the pretrial conference that he had two prior domestic assault convictions. 4
district court before we will decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Godfrey asserts he preserved error because he
moved to sever and received a ruling. That said, the State argues that his appeal
of that decision is limited in scope—“the argument advocated on appeal must have
been made in the motion to sever.” State v. Young, No. 09-1938, 2011 WL
4579863, at *5 (Iowa Ct. App. Oct. 5, 2011); see also State v. Sanborn, 564 N.W.2d
813, 815 (Iowa 1997) (“A defendant may not rest an objection on one ground at
trial, and rely on another for reversal on appeal.”). Because of this, the State
believes that Godfrey is limited to arguing his delay was caused by the COVID-19
pandemic.
While it is true that Godfrey’s written motion points to having just received
the exhibits, the concern was not addressed in the hearing on the motion. And the
court’s ruling only addressed the COVID-19 ground:
But for now, on the motion to sever, I’m going to overrule it. I do think there’s prejudice to the assault case by presenting the possession cases. The motion was late. I do understand that there is COVID, but all the witnesses have been subpoenaed, as far as I can tell. We’re all here, ready to try this. I do think the facts would be the same in both cases. And with it being late, and in the interest of judicial economy, I’m going to have the case proceed with all three counts.
The court offered no ruling on whether the timing of the disclosure of evidence
constituted good cause for the delay in the motion. Without a ruling on the issue,
it is not preserved. But, even if it were preserved, Godfrey’s brief offers no legal
authority in support of this argument. And our appellate rules provide that “[f]ailure
to cite authority in support of an issue may be deemed waiver of that issue.” Iowa 5
R. App. P. 6.903(2)(g)(3). As the issue was both not preserved and waived in the
brief, we do not address its merits.
III. Analysis.
We review the district court’s denial of a motion to sever for an abuse of
discretion. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). “The joinder
rule presumes that multiple charges be tried together.” State v. Stark, No. 19-
1990, 2021 WL 1400350, at *5 (Iowa Ct. App. Apr. 14, 2021) (citing Iowa R. Crim.
P. 2.6(1)). “[The defendant] bears the burden of demonstrating that prejudice
exists because of the joinder of offenses, and that this prejudice outweighs the
State’s interest in judicial economy.” State v. Romer, 832 N.W.2d 169, 183 (Iowa
2013). Still, before we reach the prejudice issue, we must determine whether there
was good cause for the tardiness of Godfrey’s motion.
If a defendant does not timely make a motion to sever, they waive their right
to do so; the court may, however, “grant relief from such waiver if the defendant
can show good cause for the delay.” State v. Umana, No. 11-0667, 2012 WL
4513859, at *4 (Iowa Ct. App. Oct. 3, 2012). We consider “the adequacy of the
defendant's reasons for failing to comply with the applicable rules of procedure and
whether the State was prejudiced as a result.” State v. Jordan, 799 N.W.2d 751,
755 (Iowa 2010).
Godfrey argues that the vast disturbance of the COVID-19 pandemic and
the confusion it caused in the court system ought be sufficient good cause for his
late motion given the delays and difficulty it caused the court system. But the
excuse of the pandemic and the timeline of the filings simply do not add up. The
trial information and written arraignment were filed in December 2019, and the 6
motion to sever should have been made in mid-January 2020. This deadline
occurred weeks before the United States Department of Health and Human
Services declared a national public health emergency had begun on January 27,
2020. See U.S. Dep’t of Health & Hum. Servs., Off. of Assistant Sec’y for
Preparedness and Response, Determination that a Public Health Emergency
Exists (Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/
Pages/2019-nCoV.aspx. And, the deadline passed months before the Governor
of Iowa followed suit with a Proclamation of Disaster Emergency on March 9, 2020.
See State of Iowa Exec. Dep’t, Proclamation of Disaster Emergency (Mar. 9,
2020), https://governor.iowa.gov/sites/default/files/documents/202003100818.pdf.
Our supreme court did not begin issuing orders about changes in court process
until March 12. See Iowa Supreme Ct. Supervisory Order, In the Matter of Ongoing
Provisions for Coronavirus/COVID-19 Impact on Court Services (Mar. 12, 2020).
Required delays in cases, allowing for the pandemic to serve as good cause for
any necessary extensions of time, were not ordered until March 14. Iowa Supreme
Ct. Supervisory Order, In the Matter of Ongoing Provisions for
Coronavirus/COVID-19 Impact on Court Services (Mar. 14, 2020). Using any of
these dates as a starting line, then, the pandemic could not have reasonably
caused Godfrey to miss the January 18, 2020 deadline. Likewise, Godfrey
developed no specific reasons explaining the impact of the pandemic on his case.
The pandemic created unquestionable disorder, but it is not a blanket excuse for
delays that occurred before its onset.
Since the COVID-19 pandemic had not yet affected the court system in Iowa
at the motion-to-sever deadline, the court did not abuse its discretion when it 7
declined to find good cause for the untimely motion to sever. Because good cause
did not exist, the issue was waived. For that reason, we need not determine
whether prejudice was caused by trying the charges in the same trial.3
III. Conclusion.
We find that the COVID-19 pandemic did not serve as good cause for
missing the statutory deadline to file a motion to sever. As such, we find no abuse
of discretion in the court’s denial of Godfrey’s motion to sever his assault with a
dangerous weapon charge from his possession of a firearm or offensive weapon
by a domestic violence offender charges.
AFFIRMED.
3 We would note, however, that evidence of the prior assaults was, by stipulation, read into the evidence at the end of the case. The jury was instructed: “When you decide whether or not Mr. Godfrey committed an assault in this case, you shall not consider and you shall disregard evidence that Mr. Godfrey was convicted of any other crime.” With this limiting instruction, it would not appear Godfrey could show the prejudice from the joinder outweighed the State’s interest in judicial economy. See State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001) (holding that one sentence stipulation of other felony conviction, coupled with limiting instruction explaining how to apply the information, minimized any possible prejudice).