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.