State of Iowa v. John Matthew Osborn

IN THE COURT OF APPEALS OF IOWA
No. 15-0899
Filed June 15, 2016
STATE OF IOWA,
Plaintiff-Appellant,
vs.
JOHN MATTHEW OSBORN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Richard H.
Davidson, Judge.
The State appeals the order granting John Osborn a new trial for charges
of sexual abuse in the third degree based on newly-discovered evidence.
AFFIRMED.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellant.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellee.
Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
The State appeals from the district court’s grant of new trial to John
Osborn based on newly-discovered evidence following his conviction for four
counts of sexual abuse in the third degree. The State argues the district court
abused its discretion when it granted Osborn’s motion for new trial, contending
the messages Osborn discovered after the verdict were not newly-discovered
evidence because (1) Osborn could have discovered the messages earlier
through due diligence, (2) the messages were not material to the issues in the
case, and (3) Osborn failed to show the evidence probably would have changed
the result of the trial. We affirm.
I. Background Facts and Proceedings
On September 3, 2014, the State filed a trial information charging Osborn
with four counts of sexual abuse in the third degree, class “C” felonies, in
violation of Iowa Code section 709.4(2)(c)(4) (2013). The State alleged that, on
or about July 16–17, 2014, Osborn perpetrated sexual abuse on a fourteen-year-
old child victim. Osborn waived jury trial, and trial to the bench commenced on
February 5, 2015.
At trial, the evidence demonstrated Osborn started communicating
through instant messages and phone calls with his daughter’s friend in June
2014. The communications started as small talk about sports and Osborn’s
daughter but intensified to being sexual in nature. On July 16, the victim stayed
overnight at Osborn’s home as a guest of his daughter. The victim testified at
trial that, after Osborn’s wife had gone to bed and his daughter had fallen asleep
in the living room, Osborn and the victim went to his daughter’s bedroom where
3
Osborn engaged in four separate sexual acts with the victim. Osborn denied the
allegations and testified that, after the victim made a sexual advance toward him,
he left the living room and went to sleep in the bedroom he shared with his wife.
Osborn’s daughter also denied Osborn had the opportunity to sexually abuse the
victim because she remained awake in the living room with the victim until after
her father had gone to bed, and then she and the victim went to sleep in her
bedroom.
The parties also introduced physical evidence at trial including instant
messages from three different cell phones belonging to Osborn, the victim, and
Osborn’s daughter. Following the date of the alleged incident, Osborn and the
victim deleted the messages between them from their phones. Prior to trial but
after the victim’s deposition, Osborn discovered and purchased a data-recovery
program that allowed him to recover the instant message data he had deleted
from his cell phone.1 Osborn shared the program information with the State,
allowing law enforcement to purchase the program and recover instant
messages the victim had deleted from her phone. The evidence presented from
Osborn’s daughter’s phone at trial included screenshots of the messages she
had sent and received on the night the alleged abuse occurred. Following the
close of all evidence on February 6, the court allowed Osborn additional time to
go through the voluminous evidence introduced by the State. The court informed
Osborn that if additional information was found, it would entertain a motion to
1
Because the messages were sent between the phones as instant messages rather
than text messages that passed through their respective wireless carriers, the police
were unable to obtain the deleted messages from the carriers.
4
reopen the evidence. The trial reconvened with closing arguments on February
12. Osborn filed a motion to dismiss, which the district court denied.2
On March 26, the district court issued its verdict convicting Osborn of four
counts of sexual abuse in the third degree. The court noted, “The initial question
is whether there was a window of opportunity for the sexual contact to take
place.” The court examined the evidence and determined there was a period of
a half hour in which Osborn’s daughter was not messaging and was likely asleep
as the victim had testified, which provided Osborn with the opportunity to
perpetrate the sexual abuse. There was also a second, larger gap in sent
messages that the district court did not address. Ultimately, the court found the
victim’s testimony credible and concluded the State had proved the elements of
section 709.4(2)(c)(4) beyond a reasonable doubt.
Following the verdict, Osborn ran the data-recovery program on his
daughter’s phone3 in an attempt to recover any additional messages not reflected
in the screenshots taken from her phone that were admitted in evidence at the
trial. He claimed his daughter had received a new phone less than one week
after the alleged sexual abuse had occurred and not all of the data had been
transferred over to her new phone, thus creating gaps in her messaging reflected
in the screenshots. After running the program, he discovered six additional
messages that were sent from his daughter’s phone during the narrow, half-hour
2
In support of the motion to dismiss, Osborn’s attorney argued the State did not provide
him with the entire download from the victim’s phone until the morning of the second day
of trial, after the State had rested and on the day allotted for the defendant’s case in
chief, even though the date stamp on the evidence showed the prosecution had received
it on January 23. He asserted he had no meaningful opportunity to review the evidence
and questioned the integrity of the State’s download from the victim’s phone.
3
It is unclear from the record whether Osborn ran the data-recovery program on his
daughter’s phone or her phone’s external storage service.
5
window the court had determined provided him with an opportunity to commit the
sexual abuse. On April 20, Osborn filed a motion for new trial based on newly-
discovered evidence, arguing the newly-found messages demonstrated his
daughter was not asleep during the time when the sexual abuse was to have
been perpetrated.4
At the hearing on May 8, Osborn argued that he and the victim had both
intentionally deleted the messages from their phones to avoid detection and,
thus, the data-recovery program was required to retrieve the messages. 5 But,
because he had screenshots of the actual messages from his daughter’s phone,
he had no reason to believe any messages were missing and, therefore, no
reason to run the program to look for any additional messages. He claimed,
based on the newly-found evidence, his daughter could not have been asleep
and, thus, he would not have had the opportunity to sexually abuse the victim
because the victim’s version of events hinged on whether Osborn’s daughter was
asleep during that half-hour window of time. The court concluded Osborn could
not have discovered the evidence with due diligence before trial and the
evidence was relevant, material, and could have changed the outcome of the
case. After considering the seriousness of the charges against Osborn, the court
determined Osborn had conducted diligent discovery and justice required the
motion for new trial be granted and the verdict vacated.
4
The filing included an alternative motion for acquittal based on insufficient evidence,
which the district court denied.
5
At trial, the State stipulated to the admission of evidence obtained through the data-
recovery program because it corroborated the victim’s version of events. At the May 8
hearing, the State questioned the reliability of the data-recovery program and the
evidence it produced.
6
The State appeals.
II. Scope and Standard of Review
“We review a district court’s denial or grant of motion for new trial on the
basis of newly-discovered evidence for abuse of discretion.” State v. Weaver,
554 N.W.2d 240, 244 (Iowa 1996), overruled on other grounds by State v.
Hallum, 585 N.W.2d 249, 253–54 (Iowa 1998). “We find an abuse of discretion
only when discretion is exercised on grounds clearly untenable or to an extent
clearly unreasonable.” Id. (citation omitted). “The court’s discretion in granting or
denying a motion for new trial is ‘unusually broad’ when the new trial motion is
grounded on newly-discovered evidence.” Id. (citation omitted). “[W]e recognize
that motions for new trial are not favored and should be closely scrutinized and
sparingly granted.” Id. at 245. However, “[w]e give weight to the district court’s
conclusion that the proffered newly-discovered evidence would have altered the
trier-of-fact’s decision to convict had the evidence been introduced at trial” and
“are more reluctant to disturb a trial court’s grant of a new trial than its denial of
one.” Id. at 244–45; see also Iowa R. App. P. 6.904(3)(d) (“The [appellate] court
is slower to interfere with the grant of a new trial than with its denial.”); State v.
Compiano, 154 N.W.2d 845, 849 (Iowa 1967) (“The trial court is generally in a
better position than we to determine whether evidence, newly discovered, would
probably lead to a different verdict upon retrial, and we have often said we will
not interfere with its ruling unless it is reasonably clear that such discretion was
abused.”).
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III. Analysis
Iowa Rule of Criminal Procedure 2.24(2)(b)(8) provides, in pertinent part, a
district court may 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 trial.” In order to prevail under this rule, Osborn must show the additional
messages from his daughter’s phone (1) were discovered after the verdict,
(2) could not have been discovered “earlier in the exercise of reasonable
diligence,” (3) are “material to the issues in the case and not merely cumulative
or impeaching,” and (4) “probably would have changed the result of the trial in
which [he] was convicted.” Weaver, 554 N.W.2d at 246; see also State v.
Romeo, 542 N.W.2d 543, 550 (Iowa 1996). On appeal, the State bears the
burden of establishing “the district court abused its discretion in granting [Osborn]
a new trial.” Weaver, 554 N.W.2d at 244. The State challenges the second,
third, and fourth elements.
Our supreme court has previously explained the concept of due diligence:
The showing of diligence required is that a reasonable effort was
made. The applicant is not called upon to prove he sought
evidence where he had no reason to apprehend any existed. He
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. But he
is not placed under the burden of interviewing persons or seeking in
places where there is no indication of any helpful evidence.
State v. Farley, 226 N.W.2d 1, 4 (Iowa 1975) (quoting Westergard v. Des Moines
Ry. Co., 52 N.W.2d 39, 44 (Iowa 1952)).
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The State first contends the district court abused its discretion when it
concluded Osborn could not have discovered the instant messages on his
daughter’s phone any earlier through due diligence because prior to trial Osborn
had access to both his daughter’s cell phone and the data-recovery program he
later used to find the instant messages on his daughter’s phone. The State also
claims Osborn knew before trial that he likely did not have all of the messages
even though he knew such evidence could challenge the victim’s credibility
regarding the timeline of events.
Osborn argues he had no reason to know his daughter had sent any
additional messages within the half-hour window of opportunity designated by the
court that did not appear in the large volume of screenshots taken from her
phone and presented at trial. He claims the purpose of the data-recovery
program is to recover deleted messages, like those he and the victim
intentionally deleted from their phones to avoid detection, and because his
daughter had not intentionally deleted any messages from her phone and the
messages initially captured in the screenshots gave no indication that there may
have been an incomplete message record, he had no reason to run the program
on her phone.6
In ruling from the bench on the motion for new trial, the district court noted
the question of whether Osborn could have discovered the evidence before trial
6
Osborn claims there may have been some malfunction in the software technology that
caused the messages to transfer incompletely or otherwise not be captured in the
screenshots following the data transfer from his daughter’s old phone to her new one
approximately one week after the alleged sexual abuse occurred. He also points to one
of the retrieved messages mentioning an issue with the Wi-Fi in their home that night
and argues that may have contributed to the incomplete messaging record.
9
with due diligence was a difficult one, and in reaching its decision, the court
“look[ed] at the trial preparation that came out in trial.” The court then explained:
It’s obvious that the defendant went to great lengths to
retrieve all the data from either his phone or his daughter’s phone.
As you all know, Exhibit T, which in fact we took a break from the
trial because it was so voluminous, so there was in fact at one point
during the pretrial discovery, is the Court’s understanding, that
perhaps the defendant had more data from phones than the State
through their investigation had. I also believe that Mr. Osborn and
his attorney believed that their diligent search produced all the
available content, and that was a fact that also came out at trial
through at least one of the witnesses . . . .
And . . . I think [the assistant county attorney] just referenced
it as well, that this technology as good as it is, does not retrieve
everything just because the cloud needs room too apparently.
The Court in considering . . . all these facts in determining
whether in fact the defendant could have reasonably discovered
this with due diligence considers the seriousness of the charges,
also the diligent discovery that I believe was undertaken by both
parties, but certainly by the defendant beforehand, and the Court’s
understanding that all of that material was present and discovered
when in fact it was not . . . .
The foregoing explanation demonstrates the trial judge was keenly aware
of the level of pretrial discovery and preparation that had been done. Our
supreme court has held, “the trial court [i]s in a better position than the appellate
court to determine whether diligence . . . was used to discover and produce the
alleged new evidence relied upon by movant, and whether it would have
probably led to a different result upon a retrial.” Compiano, 154 N.W.2d at 849
(citing State v. Addison, 95 N.W.2d 744, 748 (Iowa 1959)). On our review of the
record, Osborn did not have “reasonable cause to believe that favorable and
available evidence of a material nature exist[ed]” outside of the messages
captured in the screenshots from his daughter’s phone. See id. at 850 (citation
omitted). We cannot find the district court abused its discretion in concluding
10
Osborn could not have discovered and produced at trial with reasonable
diligence the additional instant messages sent from his daughter’s phone. See
Iowa R. Crim. P. 2.24(2)(b)(8).
The State also challenges the third and fourth elements contending the
district court abused its discretion in determining the additional messages
retrieved from Osborn’s daughter’s phone through the data-recovery process
were material to Osborn’s guilt and would probably have changed the result of
his trial. The State complains the district court unnecessarily narrowed the
window of opportunity for the sexual abuse to have occurred to a short, half-hour
time period and the messages are not material to Osborn’s case because
Osborn could still have committed the sexual abuse within the court’s narrow
window or at some point outside of the window. The State further asserts the
newly-discovered messages, at most, only partially impeach the victim’s
testimony because Osborn’s daughter could have been half asleep and sending
the messages during the abuse, rather than fully asleep as the victim testified.
Additionally, the State claims the evidence was cumulative because Osborn had
already presented evidence at trial that challenged the victim’s testimony.
Therefore, the State argues, the district court improperly concluded the
messages probably would have changed the result of trial and justice does not
require that Osborn receive a new trial because the remainder of the evidence
still supports the verdict.
Osborn argues that, although the evidence is incidentally impeaching or
somewhat cumulative, it is material and not strictly impeaching or cumulative.
See Maland v. Tesdall, 5 N.W.2d 327, 333 (Iowa 1942) (finding evidence may be
11
material and a motion for new trial may be granted when the newly-discovered
evidence “is neither strictly impeaching nor cumulative”); see also Westergard,
52 N.W.2d at 43 (finding cumulative evidence may be deemed material when
“the newly-discovered evidence is not entirely or strictly cumulative” and it “goes
somewhat farther and introduces some new details”); Dobberstein v. Emmet
Cty., 155 N.W. 815, 818 (Iowa 1916) (“[I]t has often been held that newly-
discovered evidence to successfully contradict a witness upon a material point
may be cause for allowing a new trial, and it is no objection to such order that the
evidence may incidentally impeach a witness.”). Osborn contends the question
of whether the evidence is material is necessarily tied to the question of whether
the evidence may have led the factfinder to reach a different conclusion. See
Westergard, 52 N.W.2d at 43 (“The test is not whether the offered newly-
discovered evidence is cumulative, but whether . . . it is sufficient to justify the
trial court, in the exercise of a legal discretion, in concluding there is a
reasonable probability of a different result upon another trial.”). He claims the
newly-discovered messages demonstrated his daughter was awake during the
half-hour window during which the court found the alleged sexual abuse to have
occurred, and therefore, the evidence is primarily substantive because it goes
directly to whether the abuse could have been perpetrated.
Regarding these elements, the district court concluded the newly-
discovered evidence was material—not merely cumulative or impeaching—and
would probably have changed the result of trial. We are reluctant to disturb the
district court’s decision to grant Osborn’s motion for new trial, especially given
that the district court acted as the factfinder in this matter. See Compiano, 154
12
N.W.2d at 849 (“It is ‘important for the orderly administration of criminal justice
that findings on conflicting evidence by trial courts on motions for new trial based
on newly-discovered evidence remain undisturbed except for most extraordinary
circumstances . . . .’” (citation omitted)); see also State v. Miles, 490 N.W.2d 798,
799 (Iowa 1992) (“From its closer vantage point, the presiding trial court has a
clearer view of [the] crucial question [of whether the defendant is making a
legitimate claim or is moving for new trial in desperation], and we generally yield
to its determination.”); Westergard, 52 N.W.2d at 43 (“[I]f [the trial court] holds
justice requires a new trial, and a different result is likely, we cannot ordinarily
interfere.”). On our review of the record, we conclude the district court did not
abuse its discretion.
Accordingly, we affirm the district court’s grant of Osborn’s motion for new
trial based on newly-discovered evidence.
AFFIRMED.