State of Iowa v. Enoc Alvarenga

IN THE COURT OF APPEALS OF IOWA

No. 22-0181
Filed November 17, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ENOC ALVARENGA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court of Dubuque County, Michael J. Shubatt,

Judge.

Enoc Alvarenga appeals his convictions for enticing a minor and indecent

contact with a child. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.

A jury found Enoc Alvarenga guilty of enticing a minor and indecent contact

with a child. The district court sentenced him to prison for terms not exceeding ten

and two years respectively, to be served consecutively.

On appeal, Alvarenga contends the district court abused its discretion in

(1) denying his motion in limine to exclude evidence of his arrest and (2) imposing

consecutive sentences.

I. Limine Ruling

Alvarenga’s pretrial motion in limine sought to prevent the State “from

introducing details of [his] arrest.” He asserted evidence “that he resisted and/or

attempted to flee . . . would cause the jury to improperly conclude that [he] was

avoiding law enforcement due to the allegations stemming from the instant case”

or might force him “to reveal a prior bad act.” Citing Iowa Rule of Evidence 5.403,

he argued the evidence, while relevant, was “substantially outweighed by unfair

prejudice.” At a hearing on the motion, the prosecutor noted that Alvarenga was

arrested on a warrant on the underlying charges and his “attempt[] to flee” was

evidence of his “consciousness of guilt” that was “something for the jury to

consider.” Alvarenga responded that admission of the evidence would put the

defense in “an unfair situation.” The district court denied the motion, reasoning the

evidence placed the defense in “a difficult situation” rather than an “unfair

situation,” requiring a strategic decision on how to respond. The court stated trial

strategy was an insufficient ground to exclude evidence that “would normally come

in.”
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At trial, an officer with the Dubuque Police Department testified he was at a

convenience store to check on an abandoned vehicle. He ran the plate, which

came back to Alvarenga, who he “knew to have an active warrant for his arrest.”

Momentarily, he “observed [Alvarenga] walking toward[] [him] in the direction of his

vehicle.” He “grabbed onto [Alvarenga’s] right arm and said, hey, you got warrants

for your arrest and went to go place him into handcuffs.” As he did so, Alvarenga

“pulled his arms away” and both individuals “went to the ground.” According to the

officer, “[t]here was a struggle on the ground there for a second” and Alvarenga

got away, and ran “along the front of the store again while [he] still had a hold of

[Alvarenga’s] shirt.” The officer kicked Alvarenga’s “feet from underneath him,”

and “he tripped and fell.”

Alvarenga did not lodge a trial objection to this testimony. He did object to

the offer of surveillance footage from the convenience store, citing “the objection

that was previously made” during pretrial motions. The district court noted and

overruled the objection, and the video was played. On cross-examination,

Alvarenga elicited an admission from the officer that people could run for any

number of reasons. He did not refer to the prior bad act that undergirded his motion

in limine.

On appeal, Alvarenga essentially reprises the argument he made at the

hearing on his motion. The State responds that he failed to preserve error.

“Generally denial of a motion in limine does not preserve error for appellate

review.” State v. Thoren, 970 N.W.2d 611, 620–21 (Iowa 2022). But if the motion

“declares the evidence admissible or inadmissible, it is ordinarily a final ruling and

need not be questioned again during trial.” Id. at 621.
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We conclude the district court made a final ruling on the motion in limine.

Although the court initially questioned how the State would admit evidence of the

arrest warrant, it ultimately decided to assume “that there was a warrant [and] that

[Alvarenga] ran.” Based on that assumption, the court unequivocally ruled the

flight evidence was admissible. See Quad City Bank & Tr. v. Jim Kircher &

Assocs., P.C., 804 N.W.2d 83, 90–91 (Iowa 2011) (“The court did not equivocate

or state it would reconsider its ruling at trial” and, “[a]ccordingly, the court’s ruling

had the effect of a definitive evidentiary ruling.”). Because the ruling left scant, if

any, room for doubt as to the admissibility of the flight evidence, Alvarenga had no

obligation to object to the evidence at trial in order to preserve error.

As for the scope of the final ruling, we are persuaded it covered the

probative value and prejudicial effect of the evidence under Iowa Rule of Evidence

5.403 as well as potential limits on the use of prior bad acts evidence under Iowa

Rule of Evidence 5.404(b). Because Alvarenga raised these arguments in the

district court, he preserved error. We proceed to the merits.

“It is well-settled law that the act of avoiding law enforcement after a crime

has been committed may constitute circumstantial evidence of consciousness of

guilt that is probative of guilt itself.” State v. Wilson, 878 N.W.2d 203, 211 (Iowa

2016) (citations omitted). At the same time, the evidence has to be treated “with

caution.” Id. at 212. “[T]he probative value of evidence showing a defendant

avoided apprehension turns on the circumstances under which the avoidance

occurred.” Id. at 213. Specifically, “[f]or any valid inference of guilt to be drawn by

the jury from flight evidence, the district court must assure itself there is some
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evidence in the record to support the inferential chain between the defendant’s act

of avoidance and consciousness of guilt for the crime charged.” Id.

[T]he inferential chain connecting an act of flight to guilt for the crime
charged can reasonably be drawn only when the timing of the act
suggests the sudden onset or the sudden increase of fear in the
defendant’s mind that he or she will face apprehension for,
accusation of, or conviction of the crime charged.

Id. (internal quotations and citation omitted). “The immediacy requirement is

important. It is the instinctive or impulsive character of the defendant’s behavior,

like flinching, that indicates fear of apprehension and gives evidence of flight such

trustworthiness as it possesses.” Id. That said, “establishing immediacy is less

critical to establishing the probative value of flight when the evidence conclusively

establishes the defendant knew he or she was suspected of the charged crime at

the time of flight.” Id. at 214. Once a district court admits such evidence, it is for

the jury to decide whether to credit the inferential chain leading from a particular

act of the defendant to guilt for the crime charged.” Id. at 215.

Alvarenga concedes Wilson is the governing precedent but argues the

opinion is distinguishable on its facts. He asserts that, unlike Wilson, his “attempt

to avoid arrest cannot be directly tied to the allegations in this case.” He points out

the incident giving rise to the charges occurred twenty days before his attempt to

flee, an officer visited him to obtain a DNA sample in the interim and did not call

him for an interview after saying he might, and “[n]o developments between [the

visit and his arrest] would have led [him] to believe circumstances had materially

changed.” In his view, his attempt to flee was attributable to the prior bad act he

discussed at the motion hearing, making the flight “irrelevant to any legitimate

issue in dispute.”
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We are persuaded Wilson is on point factually as well as legally. There, the

court cited “[s]everal significant events related to the charged crimes . . . in the

days immediately leading up to the flight from which a jury could reasonably infer

that [the defendant] fled from law enforcement due to his consciousness of guilt

for those crimes.” Id. at 216. The same is true here. A jury reasonably could have

inferred that the officer’s contact with him to obtain a DNA sample together with

the request for a follow-up interview placed Alvarenga on notice that he was a

suspect in the current matter. A jury could have surmised that he “experienced a

sudden increase in fear that he would be accused of the charged crimes.” Id. We

conclude the arrest and flight evidence was probative of Alvarenga’s

consciousness of guilt, just as it was in Wilson.

We turn to the question of whether the evidence was unfairly prejudicial.

See id. at 215-16. “Unfair prejudice arises when the evidence appeals to the jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or . . . may

cause a jury to base its decision on something other than the established

propositions in the case.” Id. at 216 (internal quotations and citation omitted).

The officer’s testimony was fairly brief. See id. at 217 (noting flight

testimony “was not presented in an inflammatory manner, as it was brief relative

to the length of the trial as a whole”). Although his description of the tackle was

vivid, it was not the type of evidence relative to the underlying crimes that would

have prompted the jury to punish him. Id. As for the surveillance video, it recorded

the door of the store from an interior vantage point and captured people

momentarily running past the door, with the faces of the runners out of the

camera’s range. True, admission of the flight evidence forced Alvarenga to decide
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whether he would offer evidence of a prior bad act unrelated to the underlying

crimes to establish an alternative basis for fleeing. But Alvarenga elected not to

offer that evidence. We conclude the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice and the district court did

not abuse its discretion in concluding the evidence was admissible.

Even if the evidence should not have been admitted, we must engage in a

harmless-error analysis to determine whether the admission amounted to

reversible error. See id. at 218–19. “The type of prejudice in our harmless error

analysis differs from the rule 5.403 prejudice.” State v. Sullivan, 679 N.W.2d 19,

30 (Iowa 2004). We presume prejudice and reverse unless the record affirmatively

establishes a lack of prejudice. Id. The record may affirmatively establish a lack

of prejudice where the unchallenged evidence is overwhelming. See Thoren, 970

N.W.2d at 636–37; State v. Parker, 747 N.W.2d 196, 210 (Iowa 2008).

The child provided compelling testimony of the circumstances underlying

the charges. Her testimony together with other evidence overwhelmingly

supported findings of guilt on both charges rendering any error in admitting the

flight evidence harmless.

II. Consecutive Sentences

Alvarenga contends the district court abused its discretion in imposing

consecutive sentences. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999)

(setting forth standard of review). We disagree. In running the sentences

consecutively, the district court agreed with the recommendation contained in the

presentence investigation report and cited “the nature of the offense[s]” and “the
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fact that although they were proximate in time[,] they [were] separate acts,

separate crimes.” We discern no abuse of discretion in the statement of reasons.

We affirm Alvarenga’s judgment and sentence.

AFFIRMED.