Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                  No. 21-1483
                           Filed December 21, 2022


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY RYAN PROSS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mark Kruse,

Judge.



      Timothy Pross appeals his convictions for first-degree arson and second-

degree burglary. AFFIRMED.



      Theresa J. Seeberger, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Greer, P.J., Ahlers, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
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GAMBLE, Senior Judge.

       A jury convicted Timothy Pross of first-degree arson and second-degree

burglary. Pross argues his convictions are not supported by sufficient evidence

because insufficient evidence identifies him as the perpetrator and the court should

have excluded a portion of a phone call exhibit. We affirm.

I. Background Facts and Prior Proceedings

       Pross and C.L. dated for almost two years and lived together for most of

that time. They broke up in March of 2020. But Pross had a hard time accepting

that their relationship had ended. In fact, there was a no contact order issued in

October to prevent communication between them.1

       C.L. had moved on and began a relationship with J.J., and the two moved

in together. Pross and J.J. communicated with each other by phone but had never

met in person.2 On one December phone call, J.J. informed Pross that C.L. was

pregnant. Pross threatened to burn their house down. Around that same time,

Pross showed up to a friend’s house wearing a ghillie suit and talked with his

friend’s wife.3

       At midnight on the evening of December 17 going into December 18, C.L.

spotted Pross walk down the sidewalk by her house dressed in regular clothes.


1 It is not apparent from our record whether the no contact order was a mutual no
contact order or specifically prevented Pross from contacting C.L.
2 J.J. and Pross dispute who typically initiated their phone calls, with both pointing

the finger at the other.
3 “A ghillie suit is a type of camouflage clothing designed to resemble the

background environment . . . . The suit gives the wearer’s outline a three-
dimensional breakup, rather than a linear one.” Ghillie suit, Wikipedia.org (last
visited Dec. 6, 2022), https://en.wikipedia.org/wiki/Ghillie_suit; cf. Linn v. State,
929 N.W.2d 717
, 722 n.3 (Iowa 2019) (citing to Wikipedia and noting it can be a
helpful tool to “get a sense of a term’s common usage”).
                                           3


J.J. came home from his second-shift job, which ended at 2:00 a.m., like normal

that night. After a little while, J.J.’s surveillance system alerted him that someone

was in the backyard. He looked out of his kitchen window and saw someone in a

ghillie suit trying to break his car window and set his car on fire. J.J. told the person

through the surveillance system that he called the police. J.J. was able to see the

person’s face when they briefly lifted the mask covering their face and looked

toward the kitchen window. Then the person walked up to the house, broke out a

window, and lit the curtain and blind on fire. J.J. put the fire out with a fire

extinguisher. Meanwhile, the person in the ghillie suit ran toward the front of the

house and into a wooded area across the street.

       C.L was in a bedroom and did not observe the incident firsthand. But later

when she watched a recording of the surveillance video, C.L. was able to identify

Pross as the perpetrator because she knew his walk, gait, hand gestures,

mannerisms, and posture after living with him for quite some time.

       Following an investigation, police arrested Pross. While in custody, Pross

called several people and made statements like “I hear there’s no face, no case,”

and “my fucking friends told on me dude” after reading from an affidavit. When

discussing who would set curtains on fire, the other person on the call said,

“definitely you.” Pross replied, “yeah, that’s definitely a me move. Dad always said

though if you’re gonna burn the house down, Tim, start with the curtains.” Pross

discussed his bond with someone; they explained to him, “you go to court

tomorrow on the new charges you just got, and they’ll give you a bond then.” Pross

clarified, “I go to court tomorrow? For the new charges, for the first-degree arson

and second-degree burglary?” The person on the call responded, “yeah.” When
                                         4


discussing his ghillie suit, he explained that he didn’t know where it was and said

he “got to come up with a logical reason for having that fucking thing.”

       Pross sought to exclude multiple portions of the jailhouse phone calls,

including the references to “new charges.” The court ultimately determined the

references to “new charges” merely referenced the charges at hand and did not

imply old or past charges.

       Following the State’s presentation of evidence, Pross moved for judgment

of acquittal claiming a lack of sufficient evidence. The court denied the motion,

and Pross presented testimony from himself and a friend who said Pross was with

him on the night of the fire. Again, Pross moved for judgment of acquittal, which

was again denied.

       The jury convicted Pross of first-degree arson and second-degree burglary.

Pross appeals.

II. Scope and Standard of Review

       We review challenges to the sufficiency of the evidence for corrections of

errors at law. State v. Sanford,
814 N.W.2d 611, 615
 (Iowa 2012). Guilty verdicts

must be supported by substantial evidence, which is “that upon which a rational

trier of fact could find the defendant guilty beyond a reasonable doubt.” State v.

Serrato,
787 N.W.2d 462, 465
 (Iowa 2010) (citation omitted). While we consider

all evidence, we view it in the light most favorable to the State.
Id.
 So “[e]vidence

is not insubstantial merely because we may draw different conclusions from it; the

ultimate question is whether it supports the finding actually made, not whether the

evidence would support a different finding.” State v. Lacey,
968 N.W.2d 792
, 800–

01 (Iowa 2021) (citation omitted).
                                          5


       With respect to evidentiary challenges, we review for an abuse of discretion.

State v. Webster,
865 N.W.2d 223, 231
 (Iowa 2015). “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. Rodriquez,
636 N.W.2d 234, 239
 (Iowa 2001) (citation omitted).

III. Discussion

       A. Sufficiency of the Evidence

       We first address Pross’s challenge to the sufficiency of the evidence.4

Pross only challenges the sufficiency of the evidence establishing identity. 5 He


4 Pross requests we adopt the plain-error doctrine to address this claim or consider
it within the ineffective-assistance framework. Neither is required to reach the
merits. State v. Crawford,
972 N.W.2d 189
, 194 (Iowa 2022). Crawford dictates
that we now consider the sufficiency of the evidence absent a specific motion for
judgment of acquittal because a defendant necessarily objects to the elements of
an offense by contesting the evidence at trial. Id. at 198.
5 “Where, as here, the jury was instructed without objection, the jury instructions

become the law of the case for the purposes of reviewing the sufficiency of the
evidence.” State v. Banes,
910 N.W.2d 634, 639
 (Iowa Ct. App. 2018). The jury
instructions required the jury find these three elements satisfied to find Pross guilty
of first-degree arson:
                 1. On or about December 18, 2020, the defendant caused a
         fire in or near property.
                 2. The defendant specifically intended to destroy or damage
         the property or knew the property would probably be destroyed or
         damaged.
                 3. The presence of a person in the property could have been
         reasonably anticipated.
As to second-degree burglary, the jury instructions required the jury find these six
elements satisfied to find Pross guilty:
                 1. On or about December 18, 2020, the defendant broke into
         or entered a residence at [J.J. and C.L.’s address].
                 2. The residence was an occupied structure.
                 3. The defendant did not have permission or authority to break
         into or enter the residence.
                 4. The residence was not open to the public.
                 5. The defendant did so with the specific intent to commit an
         assault or arson in the first or second degree.
                                         6


points out perceived weaknesses in the State’s case, like the fact that Pross and

J.J. had never met in person, yet J.J. identified him as the perpetrator, and C.L.

identified Pross as the perpetrator only by watching security camera footage and

recognizing Pross’s gate and hand gestures without seeing his face.           Pross

contends this evidence is not reliable, moreover he notes J.J. is a felon and argues

his word cannot be credited.

       But Pross’s focus on perceived weaknesses in the State’s case turns a blind

eye on its strengths. True, J.J. has a 2018 felony conviction, which Pross used to

impeach his credibility, see Iowa R. Evid. 5.609, but we leave credibility

determinations to the jury. See Carter v. Carter,
957 N.W.2d 623
, 635 (Iowa 2021)

(“It is for the jury to determine the credibility of witnesses.”). Moreover, security

camera footage supported J.J.’s retelling of events—adding to his credibility. Both

J.J. and C.L. identified Pross as the perpetrator.           Both had reasonable

explanations for naming Pross—J.J. briefly saw the perpetrator’s face while he

looked out the kitchen window and the perpetrator lifted his mask; C.L. previously

lived with Pross for about a year and a half and had become familiar with his

mannerisms. It was for the jury to decide if their bases were reliable. See State

v. Doolin,
942 N.W.2d 500
, 511 (Iowa 2020) (“Juries are not so susceptible that

they cannot measure intelligently the weight of identification testimony that has

some questionable features.” (citation omitted)); cf. State v. Martinez,

No. 17‑1373,
2018 WL 3060270
, at *3 (Iowa Ct. App. June 20, 2018) (finding

insufficient evidence where police identification of perpetrators from video was


              6. One or more persons were present in or upon the occupied
       structure.
                                          7


based on non-distinctive gaits and officers did not have “an especially close

relationship with either suspect” (citations omitted)).

       Pross also had motive to harm C.L. and J.J. See State v. Richards,
809 N.W.2d 80, 94
 (Iowa 2012) (recognizing a person’s motive to commit an offense is

probative to identity). He had a hard time accepting his break up with C.L., to the

point there was a no-contact order between them. And he had recently found out

C.L. and J.J. were expecting a child together, which prompted Pross to threaten to

burn their home down within days of the fire. This implicates Pross.

       Also, Pross had ready access to a ghillie suit—the perpetrator’s choice of

camouflage. He admitted to wearing one to a friend’s home just days before the

fire. We understand anyone can purchase such a suit (as Pross points out), but

that does nothing to change the fact that we know Pross actually had one within

days of the fire. Cf. State v. Powell, No. 20-1308,
2021 WL 5105907
, at *2 (Iowa

Ct. App. Nov. 3, 2021) (finding sufficient evidence when the defendant was

discovered by police wearing an outfit consistent with clothing worn by the

perpetrator and captured on video). Moreover, Pross was heard on a jailhouse

phone call realizing he would need to “come up with a logical reason for having

that fucking thing,” suggesting he actually had it for the purpose of camouflaging

himself when he tried to burn the house down and was trying to think of a legitimate

purpose for owning it.

       This leads us to consider Pross’s incriminating statements made during his

phone calls.    He complained his friends told on him, suggesting they had

incriminating facts about him to share. He agreed when someone said the fire

sounded like something he would do. And he commented that his father told him
                                           8


to start with the curtains if he ever wanted to burn a house down—and here the

perpetrator started the fire by lighting the curtains and blinds on fire.

       Taking in all of the evidence in the light most favorable to the State, we

conclude there is sufficient evidence establishing Pross’s identity as the

perpetrator and supporting his convictions.

       B. References to “New Charges”

       Finally, we address Pross’s challenge to the district court’s decision to not

redact references made to “new charges” on the jailhouse phone call. Pross

contends the references ran afoul of Iowa Rule of Evidence 5.404(b), which

provides, “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” Pross contends use of the word “new” led jurors

to believe Pross had other, additional charges for arson and burglary besides those

charged in the current case.

       Here, context is key. We agree with the district court and State that when

listening to the phone call, “new charges” clearly references the charges in this

case and did not give the jury an opening to infer Pross had any additional charges

for it to consider. So rule 5.404(b) is not implicated. See Laurie Kratky DorĂŠ, Iowa

Practice Series: Evidence § 5.404:6 n.11 (West Nov. 2022 update) (recognizing

“rule 5.404(b) applies only to proof of bad acts or crimes ‘other’ than the crime

charged”). To the extent Pross argues the references should have been redacted

under rule 5.403 because their probative value was substantially outweighed by a

danger of unfair prejudice, we disagree. There was little, if any, danger of unfair

prejudice with the inclusion of the references to “new charges.” And like the district
                                         9


court, we think redacting these innocuous references would have actually sparked

the jury’s interest and curiosity about what was redacted without good reason for

doing so. So we conclude the district court did not abuse its discretion when it

permitted the jury to hear the unredacted phone call.

IV. Conclusion

      We conclude there is sufficient evidence supporting Pross’s convictions for

first-degree arson and second-degree burglary. The district court did not abuse its

discretion when it permitted the jury to hear the unredacted jailhouse phone call.

      AFFIRMED.