### IN THE SUPREME COURT OF IOWA

No. 18

– 1777 Submitted September 16 , 2020

— Filed October 23 , 20 20

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, Gart in, & Boettger, LLP, Ames (until withdrawal) , and then Agnes Warutere of the Warutere Law Firm, PLLC,
A nkeny, 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 se x offender in Iowa since
2014

. In November 2016, Uranga failed to ap pear 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 c ontends 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 Co de § 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, Aug ust, and November. Uranga was aware of this requirement. Uranga did not appear at the sheriff’s office to verify his registration information d uring the month of November

. Instead, he

appear ed on December 7. On December 13, t he 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
instance s , h e testified , he had received a “flyer,” or letter , reminding him to appear in person and verify his registration information

. Although the

1 A ll 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 di d 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 fail ure 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 interactio ns and plenty of times to come in and verify relevant information? A. Yes. Q. You k now 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 gran dmother’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 the5 flyer at the house for my grandmother, and I mea n, I g ot it. I got that flyer. Q. Okay. And did you come in on the fifth day? A. Yes, s ir. Fifth business day. Uranga did appear at the sheriff’s office on December 7, which was five business days aft er the last day of Novem ber

. He was nonetheless charged with failure to comply with the sex offender registry

. At trial, t he 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 th e cas e

— 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 an d e xpect to get arrested again.” Trial c ounsel 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 b een 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 k nown 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 t he month of November 2016.6 The jury found Uranga guilty as charged. Uranga filed numerous post trial motions , most of which were filed

pro se . At issue in this case is his moti on 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, post trial 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 El sberry, Sheriff, Boone County. Uranga argued the December 2 letter entitled him to a new tria l. He argued a sheriff can m odify 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 d istrict 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

2 The 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 moti on for new trial based on newly discovered evidence. To the extent the defendant no w 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 issue s 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 e xtent clearly

un reasonable.’ ” 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 Crimina l 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 De cember 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)). Howe ver, a defendant “must exhaust the probable sources of in formation concerning his case; h e must u se that of which he knows , and h e must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered o r 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 e xe rcise 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 att empt 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 h is grounds for a new trial in case the jury returned a verdict of guilty. ” Id. at 25 0

. Similarly , in State v. Compiano , we affirmed the district court’s
denial of the defendant’s motion for new trial where the defendant learned9 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 withhe ld as trial strategy to obtain a second trial if
needed.” Id. at 518, 154 N.W.2d at 850. In light of the foregoing, w e 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 see k 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 C hambers 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. T he county attorney’s office provided public defender attorney s with a laptop that allowed public
defender attorney s 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 ele ctronic 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 . T he
sheriff’s office employee testified she was sure t he document was in th e electronic folder at the time the folder was provided to defense counsel : [ N ] ormall y when the county attorney asks us to put something in for the sex offe n der 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 a ll the other it ems, so I’m sure that it was.

A screen shot of the contents of the electronic file show the December letter was in the file no later than April 26, 2018, whic h 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

3 Nothing 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 wa s appointed new counsel, who represented Uranga through trial. It appears n ew trial counsel never requested any discovery fr om the county attorney’s office and was unaware any discovery had been completed. During the instructions conference, Uranga’s tri al counsel argued the promise

- of

- leniency instruction should be given, in part, because “there wa s 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 t r ial 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 post trial motion practice. At the hearing on the motion for new trial,

a fter 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.” S he stated she did not know the December letter
was in the discovery materials mad e available to prior counsel.
Trial counsel’s failure to conduct discovery or review the discovery provided may explain why the evidence wa s 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. E vidence made available to the defense prior to trial is not “ newly discovered evidence” u pon 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 defe ndant 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

- da y 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, 27 7 (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 eviden ce 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 tri al. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT AFFIRMED.