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State v. Ott

Court of Appeals of Iowa

April 3, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
DEAN JOSEPH OTT, Defendant-Appellant.

          Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, Judge.

         Dean Joseph Ott appeals his conviction and sentence for second-degree theft. AFFIRMED.

          Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J. [*]

          VAITHESWARAN, JUDGE

         Dean Ott emerged from the back door of a garage with a shopping cart full of tools. A bystander, who knew the property owners had moved to Colorado, called the police. The City of Monroe police chief responded to the call and spoke to Ott, who readily admitted the items in the cart were not his. Ott told the police chief one of the owners gave him permission to take them for safekeeping. The police chief immediately contacted one of the owners. She vehemently denied giving Ott permission to take the tools. At that point, Ott changed his tune and suggested someone sounding like her authorized the taking. Later, the second property owner also denied giving Ott permission to remove the tools.

         The State charged Ott with third-degree burglary and second-degree theft. A jury found him guilty of the second-degree theft charge and the district court subsequently imposed sentence.

         On appeal, Ott contends the district court abused its discretion in prohibiting a witness from testifying and in excluding evidence of legal proceedings involving the home from which the tools were taken. He also contends his trial attorney was ineffective in failing to challenge a reference to a prior bad act on the ground that its probative value was substantially outweighed by its prejudicial effect.

         I. Evidentiary Issues

         A. Exclusion of Witness

         Three days before trial, Ott filed a witness list identifying a person who had not previously been designated to testify. The State immediately filed a motion to exclude the witness. The State pointed out that depositions were first held almost a year earlier, trial already had been postponed once, State witnesses were slated to travel from Colorado for the trial, and Iowa Rule of Criminal Procedure 2.13(4) authorized exclusion of witness testimony under these circumstances.

         On the morning of trial, Ott's attorney informed the court the newly designated witness would testify that "at some point prior to the incident with Mr. Ott," the owner of the tools told the witness "he needed to get someone to get the tools and valuables out of the home before" legal proceedings "went through." Counsel acknowledged the State "would perhaps want to have somebody investigate or look into the story" even if the witness were made available for an interview. The prosecutor responded by noting defense counsel "hit the nail on the head." He argued the State was prejudiced by the late designation due to the "timing, manpower, just to find [the witness], interview him, set up depositions, and then arrange for that defense at trial," as well as the prior postponement of trial, and the attendance of out-of-state witnesses. The district court granted the motion to exclude. The court stated:

Given the length of time the case has been on file and the preparation time, the late filing, the Court will sustain the motion to exclude the lately named witness. . . . It would prejudice the State, and there's-I don't see an adequate reason to wait until now with something that would seem ...

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