IN THE SUPREME COURT OF IOWA
PHETSAVNH SENGPHIROM
Plaintiff-Appellant,
v.
TONY SENGPHIROM
Defendant-Appellee.
APPEAL FROM THE IOWA DISTRICT COURT
FOR STORY COUNTY
INTRODUCTION OF NEW EVIDENCE
Submitted by:
___________________________________
Phetsavanh Sengphirom
420 Hudson Street
Storm Lake, IA 50588
Plaintiff-Appellant in pro per
INTRODUCTION OF NEW EVIDENCE
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The Appellant motions this court to admit new evidence on the following grounds:
1. That this court has jurisdiction to hear the appeal.
2. The preceding is backed by Rule 6.103(1) which makes provision on final orders and
judgement. It expressly provides: “All final orders and judgments of the district court
involving the merits or materially affecting the final decision may be appealed to the
supreme court, except as provided in this rule, rule 6.105, and Iowa Code sections 814.5
and 814.6.
3. Accordingly, this court has the jurisdiction to admit new evidence and assess the
verifiability of the same.
4. Moreover, Iowa Rules of Evidence, Rule 5.402 provides for the general admissibility of
relevant evidence. It expressly states as follow;
“Relevant evidence is admissible, unless any of the following provide otherwise:
the United States Constitution or Iowa Constitution, statute, these rules, or
other Iowa Supreme Court rule. Irrelevant evidence is not admissible.”
5. The Appellant submits that the evidence he intends to introduce is relevant hence
admissible within the Iowa Rules of Evidence.
6. Furthermore, Iowa Rules of Evidence, Rule 5.401, evidence is relevant if:
“a. It has any tendency to make a fact more or less probable than it would be
without the evidence; and
b. The fact is of consequence in determining the action.”
7. Accordingly, the Appellant contends that the new evidence sought to be adduced will
make the facts more probable. Further, the evidence will aid the court in determining the
case.
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8. The evidence sought to be adduced will also aid to establish the claim of fraudulent
misrepresentation, the Plaintiff will thus discharge burden of proving each of the
following elements:
a. representation
b. falsity
c. materiality
d. scienter
e. intent to deceive
f. reliance
g. resulting injury and damage.’”
9. The preceding was held in the case of Van Sickle Constr. Co. v. Wachovia Commercial
Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010) (quoting Lloyd v. Drake Univ., 686
N.W.2d 225, 233 (Iowa 2004)); see also Iowa Civil Jury Instruction 810.1. “These
elements must be established by ‘a preponderance of clear, satisfactory, and convincing
proof.’” Van Sickle, 783 N.W.2d at 687 (quoting Lloyd, 686 N.W.2d at 233). In the case
of a fraudulent misrepresentation, “[t]he tortious act occurs at the time the representations
are made, not when they later prove to be false.” Grayheck v. Voluntary Hosp. Coop.
Ass’n of Iowa, Inc., 473 N.W.2d 31, 35 (Iowa 1991).
10. In Kelly v. State, 52 Okl.Cr. 125, 3 P.2d 244, certain exhibits were admitted into
evidence which were found on the premises of the defendant several months after the
commission of the offense. The Oklahoma Court of Criminal Appeals said: "The
objection of the defendant and his argument in his brief made to the competency and
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relevancy of this evidence are directed against its weight and not against its
admissibility."
11. Thus, despite the fact that the defendant may object to the admissibility of evidence, the
same has adequate weight and the Appellant requests the same to be admitted by this
Honorable court.
12. Further, in State v. Lynch, 195 Iowa 560, 565, 192 N.W. 423, 425, it appeared that
certain gas tanks, rubber hose, and a torch were found in the possession of the defendant.
The robbery of which the defendant was accused had been committed with such
instruments. There was no direct evidence the articles found in the possession of Lynch
were the actual ones so used, but this court held the exhibits were admissible.
13. Moreover, in State v. La Barre, an Iowa case not found in the Iowa Reports but reported
in 210 N.W. 918, at 919, we held a pistol properly admitted in evidence, where it was
testified it was of similar appearance and caliber to the one used in a robbery and it had
been found in a room where the defendant was present. See also State v. Browman, 191
Iowa 608, 627, 628, 182 N.W. 823, 831.
14. The preceding cases thus serve as persuasive to this Honorable court to admit the
proposed new evidence with a view to dispensation of justice.
15. That the Appellant initially filed a subpoena with the clerk of court but not within due
time. However, this was under the presumption that the defendant would dismiss the
case. Also, that the trial date was going to be adjourned.
16. Also, by the time the Appellant was notified of the new court date, it was too late.
17. That the Appellant attempted to contact TIAA CREF for them to provide the court date
sooner but the same was backed by other requests.
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18. That the Appellant had adequate time to obtain the new evidence from the subpoena.
Dated this ____ day of July, 2022.
Respectfully Submitted,
___________________________________
PHETSAVNH SENGPHIROM
Appellant/Plaintiff in pro per
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VERIFICATION
I, Phetsavnh Sengphirom, being duly sworn depose and say that I have read the foregoing
Motion for Introduction of New Evidence and know the contents thereof. That the same is true of
my own knowledge except as to those matters and things stated upon information and belief, and
as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of September, 2022.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
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