State of Iowa v. Joshua Kelly Uranga

               IN THE SUPREME COURT OF IOWA
                               No. 18–1777

          Submitted September 16, 2020—Filed October 23, 2020


STATE OF IOWA,

      Appellee,

vs.

JOSHUA KELLY URANGA,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Boone County, Stephen A.

Owen, District Associate Judge.



      The defendant appeals his conviction for failure to comply with the

sex offender registry. DECISION OF COURT OF APPEALS AFFIRMED;

DISTRICT COURT JUDGMENT AFFIRMED.


      McDonald, J., delivered the opinion of the court, in which all justices

joined.



      Andrew J. Boettger of Hastings, Gartin, & Boettger, LLP, Ames (until

withdrawal), and then Agnes Warutere of the Warutere Law Firm, PLLC,

Ankeny, for appellant.
                                    2

      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Dan Kolacia, County Attorney, and Matthew Speers,

Assistant County Attorney, for appellee.
                                          3

McDONALD, Justice.

       Joshua Uranga has been a registered sex offender in Iowa since

2014. In November 2016, Uranga failed to appear at the sheriff’s office to

verify his registration information. He was charged with and convicted of

failure to comply with the sex offender registry, first offense, in violation of

Iowa Code sections 692A.103, 692A.108, and 692A.111 (2016). 1 In this

direct appeal, Uranga contends the district court abused its discretion in

denying his motion for new trial based on a claim of newly discovered

evidence.

                                          I.

       In 2014, Uranga registered as a sex offender in Iowa.               He was

classified as a tier III sex offender. See Iowa Code § 692A.102(1)(c), (3), (4),

(5) (2014) (designating tier III offenses and offenders).            As a tier III

registered sex offender, Uranga was required to appear at the sheriff’s

office in his county of residence four times per year to verify his registration

information.       See Iowa Code § 692A.108(1)(c) (setting forth verification

requirements). In 2016, Uranga was required to appear during the months

of February, May, August, and November.               Uranga was aware of this

requirement. Uranga did not appear at the sheriff’s office to verify his

registration information during the month of November.                 Instead, he

appeared on December 7. On December 13, the State charged Uranga

with failure to comply with the sex offender registry, first offense.

       The case was tried to a jury. Uranga testified at trial. He testified

he previously had been tardy in reporting to the sheriff’s office. In those

instances, he testified, he had received a “flyer,” or letter, reminding him

to appear in person and verify his registration information. Although the

       1All   references to the Iowa Code shall be to the 2016 Code unless indicated
otherwise.
                                       4

letters were not offered into evidence, the witnesses, including Uranga,

testified regarding the content of these letters.      The letters were form

letters. The letters stated Uranga was in noncompliant status. The letters

stated if Uranga did not appear in the sheriff’s office within five business

days of receipt of the letter, he would be charged with failure to comply

with the sex offender registry. Uranga testified he had always reported to

the sheriff’s office within five business days of receiving one of these letters

and had never been charged with the failure to comply with the sex

offender registry.

      With respect to November, Uranga admitted he knew he was

required to appear and verify his registration information and admitted he

did not do so:

            Q. You indicated that you’ve been registering as a sex
      offender since 2014, but that’s only in the State of Iowa, right?
      A. Yes, sir.

           Q. You’ve been registering as a sex offender since
      2003? A. Yes, sir.

            Q. You’ve had plenty of interactions and plenty of times
      to come in and verify relevant information? A. Yes.

           Q. You know the system and what you’re supposed to
      do? A. I do know that, sir, yes.

           Q. You know you had to verify your information in
      November 2016? A. I knew that, sir, yes.

           Q. You didn’t do it? A. I did so not in the month of
      November . . . .

Uranga testified, however, that he believed he had five additional business

days after the end of November to appear and verify his information

pursuant to a letter left at his grandmother’s house in December.

           Q. Okay. So did you know or have reason to know or
      suspect that you had five business days after the end of
      November to come in and register? A. Because they left the
                                      5
      flyer at the house for my grandmother, and I mean, I got it. I
      got that flyer.

            Q. Okay. And did you come in on the fifth day? A. Yes,
      sir. Fifth business day.

Uranga did appear at the sheriff’s office on December 7, which was five

business days after the last day of November. He was nonetheless charged

with failure to comply with the sex offender registry.
      At trial, the parties disputed whether the December letter was

material to the case. At the conference on jury instructions, Uranga’s trial

counsel acknowledged that his original theory of the case—that the statute

provided a five-day grace period—“was flawed.” Rather than requesting

the district court instruct the jury on his flawed five-day-grace-period

theory, trial counsel instead requested the district court instruct the jury

on a promise-of-leniency theory. Specifically, “That if a promise of leniency

is made by a law enforcement official, a person is entitled to--is entitled to

rely on that and not follow and expect to get arrested again.” Trial counsel

further argued that “if we’re going to use November, then I think promise

of leniency is a recognized legal concept and the jury needs to be instructed

on that.” The prosecutor resisted the instruction on the ground that a

promise-of-leniency argument was a legal question that should have been

presented in a pretrial motion and not a fact question for the jury.

      The district court agreed with the prosecutor and denied the

requested instruction. The marshaling instruction required the State to

prove the following:

      1. Joshua Uranga had a known legal duty as a Registered Sex
      Offender to appear, in person, at the Sheriff’s Office of Boone
      County for the month of November, 2016.

      2. Joshua Uranga voluntarily and intentionally failed to
      appear in person at the Boone County Sheriff’s Office in the
      month of November 2016.
                                            6

       The jury found Uranga guilty as charged.

       Uranga filed numerous posttrial motions, most of which were filed

pro se. At issue in this case is his motion for new trial based on newly

discovered evidence. 2 The motion was filed by new counsel appointed after

the jury rendered its verdict. In the motion, posttrial counsel stated she

represented Uranga in another case and a letter from the sheriff’s office

dated December 2, 2016, was in the discovery file in that case.                      The

December letter was addressed to Uranga and provided:

       You were on the list to appear in our office to verify your
       registration information for the month of November.

       At this time, you are non-compliant status. If you do not
       appear in our office within 5 business days of receipt of this
       letter, you will be charged with the offense of Failing to Comply
       with the SOR.

The letter was signed by Gregg Elsberry, Sheriff, Boone County. Uranga

argued the December 2 letter entitled him to a new trial. He argued a

sheriff can modify or waive the statutory requirement for in-person

verification of registration information. Thus, Uranga argued, the letter

was critical to prove Uranga “registered within the time outlined by the

allowance/waiver.”

       The district court denied the motion on the ground the newly

discovered evidence was not material and would not have changed the

jury’s verdict. The district court reasoned the relevant statute does not

provide a grace period, the jury was correctly instructed on the law, and



       2The   motion was styled “motion in arrest of judgment & motion for new trial/set
aside jury verdict based on new evidence.” The only issue presented to and decided by
the district court was a motion for new trial based on newly discovered evidence. To the
extent the defendant now presents alternative arguments in support of his motion for
new trial, the arguments are not preserved for appellate review, and we decline to address
them. See Goode v. State, 

920 N.W.2d 520

, 526 (Iowa 2018) (“As a general rule, we do
not address issues presented on appeal for the first time, and we do not remand cases to
the district court for evidence on issues not raised and decided by the district court.”).
                                     7

the letter thus would not have changed the outcome. The court of appeals

affirmed, and we granted Uranga’s application for further review.

                                    II.

      “We apply an abuse of discretion standard when reviewing the

district court’s rulings on . . . motions for new trial based on newly

discovered evidence.” State v. Smith, 

573 N.W.2d 14

, 17 (Iowa 1997). “An

abuse of discretion occurs when the trial court exercises its discretion ‘on

grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’ ”   State v. Walker, 

935 N.W.2d 874

, 877 (Iowa 2019)

(quoting State v. Tipton, 

897 N.W.2d 653

, 690 (Iowa 2017)). The district

court is vested with “[u]nusually broad discretion” when “ruling on a

motion for new trial on the basis of newly discovered evidence.” State v.

Miles, 

490 N.W.2d 798

, 799 (Iowa 1992). However, “we have made it clear

that the court should closely scrutinize them and grant them sparingly.”

State v. Carter, 

480 N.W.2d 850

, 852 (Iowa 1992).

                                    III.

      Iowa Rule of Criminal Procedure 2.24(2)(b)(8) authorizes the court to

grant a new trial “[w]hen the defendant has discovered important and

material evidence in the defendant’s favor since the verdict, which the

defendant could not with reasonable diligence have discovered and

produced at the trial.”   A motion for new trial on the basis of newly

discovered evidence should be granted only where the evidence “(1) was

discovered after the verdict, (2) could not have been discovered earlier in

the exercise of due diligence, (3) is material to the issues in the case and

not merely cumulative, and (4) probably would have changed the result of

the trial.” 

Smith, 573 N.W.2d at 21

(quoting State v. Jefferson, 

545 N.W.2d 248

, 249 (Iowa 1996)).
                                      8

      We address whether Uranga established the December letter could

not have been discovered earlier in the exercise of due diligence.      The

showing of diligence required “is that a reasonable effort was made.” State

v. Compiano, 

261 Iowa 509

, 519, 

154 N.W.2d 845

, 850 (1967).             The

defendant is “not called upon to prove he sought evidence where he had

no reason to apprehend any existed.”

Id. (quoting Westergard v.

Des

Moines Ry., 

243 Iowa 495

, 503, 

52 N.W.2d 39

, 44 (1952)). However, a

defendant “must exhaust the probable sources of information concerning

his case; he must use that of which he knows, and he must follow all clues

which would fairly advise a diligent man that something bearing on his

litigation might be discovered or developed.”

Id. (emphasis in original)

(quoting 

Westergard, 243 Iowa at 503

, 52 N.W.2d at 44). “Many, perhaps

most, newly discovered evidence claims must be rejected on the basis of

the second standard (could not have been discovered earlier in the exercise

of due diligence).” 

Miles, 490 N.W.2d at 799

.

      As a general rule, a defendant is not entitled to a new trial on the

basis of newly discovered evidence where the defendant was aware of the

evidence prior to the verdict but made no affirmative attempt to obtain the

evidence or offer the evidence into the record. Thus, in State v. Jefferson,

we affirmed the district court’s denial of the defendant’s motion for new

trial where the defendant learned of the evidence during trial but took no

affirmative action to get the evidence in the record prior to the jury

returning its 

verdict. 545 N.W.2d at 251

. We explained the defendant

must seek out evidence of which he was aware to “prevent the defendant

from gambling on a defense verdict while holding back his grounds for a

new trial in case the jury returned a verdict of guilty.”

Id. at 250.

      Similarly, in State v. Compiano, we affirmed the district court’s

denial of the defendant’s motion for new trial where the defendant learned
                                         9

of potential new evidence during trial but did not seek a continuance to

investigate the matter. 

See 261 Iowa at 520

, 154 N.W.2d at 851. We

affirmed the trial court’s finding that “due diligence had not been shown.”

Id. at 519, 154

N.W.2d at 851. We explained the rationale of the rule was

to bring finality to the criminal trial and to avoid unfair gamesmanship,

stating, “Courts are aware that, unless a movant is required to show timely

due diligence in the discovery of new evidence, his newly discovered

evidence might be withheld as trial strategy to obtain a second trial if

needed.”

Id. at 518, 154

N.W.2d at 850.

      In light of the foregoing, we conclude Uranga failed to establish the

December letter could not have been discovered prior to the verdict in the

exercise of due diligence because Uranga was aware of the December letter

prior to the jury returning its verdict. At trial, Uranga testified he received

the sheriff’s letter. He testified the sheriff’s office “left the flyer at the house

for my grandmother, and I mean, I got it. I got that flyer.” Uranga had

reason to apprehend prior to trial and prior to the verdict that the letter

existed. But Uranga failed to seek out the letter during discovery. This

constitutes a failure to exercise due diligence and precludes relief. See

Jefferson, 545 N.W.2d at 251

; 

Miles, 490 N.W.2d at 799

(affirming denial

of motion on ground defendant failed to exercise due diligence where it

strained credulity to believe defendant did not know of evidence prior to

trial); Mays v. C. Mac Chambers Co., 

490 N.W.2d 800

, 805 (Iowa 1992)

(holding plaintiffs were not entitled to new trial where plaintiffs were aware

of witness prior to trial but did not attempt to contact witness until after

trial); Jones v. Scurr, 

316 N.W.2d 905

, 910 (Iowa 1982) (stating

“exculpatory evidence that was unavailable, but known, at the time of trial

is not newly discovered evidence”); 

Compiano, 261 Iowa at 519

, 154

N.W.2d at 851.
                                           10

       We also conclude Uranga failed to exercise due diligence because

the December letter was in fact provided to the defense prior to trial. At

the hearing on the motion for new trial, the prosecutor called an employee

of the county attorney’s office to testify. The employee testified the county

attorney’s office had an “open file” policy and provided discovery materials

to attorneys with the public defender’s office. The county attorney’s office

provided public defender attorneys with a laptop that allowed public

defender attorneys to access the records the investigating agencies

provided to the county attorney’s office.               An email from the county

attorney’s office showed Uranga’s counsel, who was with the public

defender’s office, was given access to the electronic file on March 7, 2017,

more than one year prior to trial in this case.

       An employee of the sheriff’s office testified the December letter was

in the electronic file to which Uranga’s counsel was granted access. The

sheriff’s office employee testified she was sure the document was in the

electronic folder at the time the folder was provided to defense counsel:

       [N]ormally when the county attorney asks us to put something
       in for the sex offender registry, we take everything for that year
       and scan it in. And that [the December letter] was within my
       folders because I did just look at that folder, and it was
       attached to all the other items, so I’m sure that it was.

A screenshot of the contents of the electronic file show the December letter

was in the file no later than April 26, 2018, which was prior to the time of

Uranga’s trial. 3

       There appears to be an explanation why the December letter was not

introduced into evidence at trial. Uranga was a fugitive from justice from

March 2, 2017, through March 20, 2018. The electronic file was made

       3Nothing   in this opinion stands for the proposition that the prosecutor had no
duty to notify the defense of new discovery materials added to the discovery file after the
initial disclosure.
                                     11

available to Uranga’s counsel on March 7, 2017.           Uranga’s counsel

withdrew from the case at some point after accessing the electronic file but

during the year in which Uranga was a fugitive from justice. After Uranga

was arrested in March 2018, he was appointed new counsel, who

represented Uranga through trial.      It appears new trial counsel never

requested any discovery from the county attorney’s office and was unaware

any discovery had been completed. During the instructions conference,

Uranga’s trial counsel argued the promise-of-leniency instruction should

be given, in part, because “there was no discovery in this case.” He stated

that he first learned of the letters, including the December letter, from the

witnesses during trial. Uranga’s new trial counsel argued “without any

discovery, this [was a] surprise to the defense.” After the jury returned its

verdict, Uranga was appointed a third attorney, who represented Uranga

in posttrial motion practice. At the hearing on the motion for new trial,

after hearing the State’s witnesses testify the December letter was made

available to Uranga’s original counsel, Uranga’s newest counsel stated this

was “new information.” She stated she did not know the December letter

was in the discovery materials made available to prior counsel.

      Trial counsel’s failure to conduct discovery or review the discovery

provided may explain why the evidence was not discovered prior to trial,

but it is not grounds for a new trial based on newly discovered evidence.

Counsel’s failure to conduct discovery or review the discovery provided is

a failure to exercise due diligence. Evidence made available to the defense

prior to trial is not “newly discovered evidence” upon which relief can be

granted. See, e.g., United States v. Pablo, 571 F. App’x 724, 727 (10th Cir.

2014) (unpublished) (holding evidence was not newly discovered where the

evidence was provided to the defense months before his trial); United

States v. Steele, 72 F. App’x 478, 480 (7th Cir. 2003) (unpublished)
                                        12

(holding evidence provided to defendant a week prior to trial was not newly

discovered); Baker v. State, 

755 P.2d 493

, 501 (Kan. 1988) (holding

evidence was not newly discovered where it was “certainly available on the

first day of a three-day trial”); State v. Atkins, 

928 N.W.2d 441

, 448

(N.D. 2019) (holding evidence was not newly discovered where evidence

was provided to defendant prior to trial but defendant admitted he “didn’t

really read the discovery”); Walters v. State, 

403 P.2d 267

, 277 (Okla. Crim.

App. 1965) (stating “the defendant is precluded from taking advantage of

the evidence he did not use and which the record shows was available to

him at the trial on the merits”); State v. Pinder, 

114 P.3d 551

, 566 (Utah

2005) (reasoning that because evidence was available or known by the

defendant before the conclusion of trial, the evidence cannot be considered

“newly discovered” and “cannot justify the grant of a new trial”); Byerly v.

State, 

455 P.3d 232

, 245–46 (Wyo. 2019) (stating evidence was not newly

discovered where it was downloaded onto thumb drive and defense counsel

was informed of this prior to trial).

                                        III.

      For these reasons, we conclude the district court did not abuse its

broad discretion in denying Uranga’s motion for new trial.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT AFFIRMED.
Share Review:
Yes it is. Based on the user review published on NO-SCAM.com, it is strongly advised to avoid State of Iowa v. Joshua Kelly Uranga in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from State of Iowa v. Joshua Kelly Uranga. Lack of accountability is a major factor in determining trust.
Because unlike No-Scam.com, other websites get paid to remove negative reviews and replace them with fake positive ones.
State of Iowa v. Joshua Kelly Uranga is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
The above review and comments against State of Iowa v. Joshua Kelly Uranga were submitted by NO-SCAM.com user(s) and have been published as-is. NO-SCAM.com does not edit, alter or remove content published by it’s users. There’s no amount of money a business can pay to manipulate their reviews or complaints and NO-SCAM.com will NOT entertain any request to remove the review on State of Iowa v. Joshua Kelly Uranga at any cost whatsoever.
>