IN THE COURT OF APPEALS OF IOWA

No. 4-660 / 03-1828 Filed November 15, 2004

STATE OF IOWA, Plaintiff-Appellee, vs. BRUCE MARCELL BRAGGS III, Defendant-Appellant.

Appeal from the Iowa District Court for Linn County, Patrick R. Grady,

Judge.

Bruce Braggs appeals the district court’s decision to admit the state’s rebuttal evidence at his criminal trial for willful failure to appear. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, and Harold Denton, Linn County Attorney, for appellee.

Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ. 2

HECHT, J.

Bruce Braggs appeals the district court’s decision to admit the state’s rebuttal evidence at his criminal trial for willful failure to appear. We affirm.

I. Background Facts and Proceedings.

A domestic abuse charge against Bruce Braggs was scheduled for trial on

June 23, 2003. Bruce was at large on that date consistent with the terms of his pretrial release under Iowa Code chapter 811 (2003). Bruce did not appear for trial, and a warrant for his arrest on the charge of willful failure to appear was issued on June 23, 2003.

On June 26, 2003, police, responding to a tip as to Bruce’s whereabouts, located the vehicle in which Bruce was a passenger. The officers arrested Bruce on a number of warrants outstanding against him, one of which was the warrant for willful failure to appear at the June 23 domestic abuse trial.

Trial counsel Hoover-Grinde testified on Braggs’ behalf at the September

22, 2003 trial on the willful failure to appear charge. She testified she had not anticipated Bruce’s domestic abuse charge would ever go to trial because the victims of domestic abuse often fail to testify and courts are then forced to dismiss the State’s charges.1 Hoover-Grinde further testified she was comfortable having her husband appear in her stead as Braggs’ counsel on June

23rd trial for domestic abuse because she believed the witness against Bruce would not appear to testify for the state, that no trial would be held, and that the charges would be dismissed. Hoover-Grinde testified she had a pretrial

1 It should be noted that the record in fact indicates that the state’s witness in the domestic abuse case did not appear to testify on either the June 23 rd trial date or the rescheduled trial date, and that case was dismissed. 3 conference with Bruce before June 23rd, but she did not tell Bruce that he need not attend the trial on the domestic abuse charge.

After the defense rested, the State indicated its desire to call Sergeant

Harrison, one of the arresting officers, to testify as a rebuttal witness. An on-the- record discussion was then held outside the presence of the jury, in which the defense contended Hoover-Grinde’s testimony did not address the issue of willfulness, and that the testimony of Harrison was not proper rebuttal evidence.

The district court allowed Harrison to testify in rebuttal, however, after concluding

“the testimony of Hoover-Grinde fairly raised the issue as to why the Defendant was not present . . . as to whether there was going to be a trial and therefore Mr.

Braggs did not willfully fail to appear.”

Sergeant Harrison testified that upon approaching the vehicle, he noticed

Bruce was positioned in the backseat in such a way as to “[appear] as though he

[was] wanting to conceal himself from our view.” Bruce was convicted of willful failure to appear on September 23, 2003, and sentenced to a prison term of up to five years on October 31, 2003. Bruce now appeals, contending that the district court abused its discretion by allowing improper rebuttal evidence that failed to rebut, contradict, explain, impeach, or clarify any of the evidence Bruce adduced in his case in chief.

II. Standard and Scope of Review.

We review the district court’s ruling on the admissibility of rebuttal testimony for correction of errors at law. Iowa R. App. P. 6.4. “Although evidence which has no direct tendency to impeach, contradict, explain, or 4 otherwise rebut evidence is not admissible on rebuttal, the district court is allowed a good deal of discretion in determining the scope of proper rebuttal testimony.” State v. Willey , 171 N.W.2d 301, 302 (Iowa 1969). A district court's ruling regarding the propriety of rebuttal evidence will be disturbed on appeal only upon a clear showing of abuse of that considerable discretion. State v.

Bakker , 262 N.W.2d 538, 543 (Iowa 1978). “It is . . . thoroughly settled that the fact testimony used in rebuttal might have been used as part of the [S]tate's main case does not render it inadmissible in rebuttal if it rebuts some of the matters testified to by defendant's witnesses.” Willey, 171 N.W.2d at 302 (quoting State v. Hephner, 161 N.W.2d 714, 718 (Iowa 1968)).

III. Discussion.

A. Did the testimony of Hoover-Grinde put at issue the “willfulness” element?

In order for us to assess the district court’s decision to receive over objection the rebuttal testimony of Sergeant Harrison, we must first decide whether Bruce’s offer of Hoover-Grinde’s testimony was relevant to the issue of whether Bruce’s failure to appear was willful. We conclude Hoover-Grinde’s testimony was intended to engender an inference tending to prove Bruce’s failure to appear on June 23 was not willful because he believed it was unlikely that a trial would occur on that date.

B. Was the testimony of Officer Harrison properly admitted rebuttal evidence? 5

Bruce, on appeal, claims that the testimony of Officer Harrison was calculated only to prove Bruce was a criminal who hides from police, and that the testimony does not tend to prove Bruce’s failure to appear was willful. We disagree. Circumstantial evidence of a remote arrest can be used to demonstrate that a defendant’s failure to appear was willful. See U.S. v.

Clemons, 676 F.2d 124, 125 (5th Cir. 1982) (finding a Florida defendant’s subsequent arrest in Illinois was probative of his willful intent not to appear at his

Florida trial).

Evidence that Bruce attempted to hide from the police in the back seat of a car on June 26 would allow a fact-finder to draw a reasonable inference that

Bruce knew the police were looking for him and that he intended to avoid detection; and that Bruce was hiding from the police because he knew the police would be searching for him because he wrongfully failed to appear for the trial on

June 23. The evidence of Bruce’s efforts to avoid arrest was therefore proper rebuttal evidence since it tended to contradict the theory that Bruce failed to appear because he believed no trial would occur. The district court thus did not abuse its discretion by receiving Sergeant Harrison’s rebuttal testimony.

AFFIRMED.