from the Iowa District Court for Jasper County, Thomas W.
Joseph Ott appeals his conviction and sentence for
second-degree theft. AFFIRMED.
C. Smith, State Appellate Defender (until withdrawal), and
Theresa R. Wilson, Assistant Appellate Defender, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.
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.
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.
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.
Exclusion of Witness
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.
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 ...