SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS 

February 1, 2012 

  

Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority. 

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No. 10-0518.   [1-891]   DAVIS v. STATE 

            Appeal from the Iowa District Court for Polk County, Richard G. Blane, Judge.  AFFIRMED.  Heard by Eisenhauer, P.J., Danilson, J., and Sackett, S.J.  Opinion by Eisenhauer, P.J.  Special concurrence by Sackett, S.J.  (10 pages) 

  

            Thomas Davis appeals from the district court order denying his application for postconviction relief.  He contends his trial and postconviction counsel were ineffective in several respects.  He also contends the court erred during the postconviction trial by denying his right to effective counsel.  OPINION HOLDS: All of Davis's ineffective-assistance-of-trial-counsel claims suffer from the same shortcoming; his evidence at the postconviction hearing fails to show how more competent representation would have changed the outcome of his trial.  The record is not fully developed with regard to his claims of ineffective assistance of postconviction counsel, and any claims of such should be addressed in possible future postconviction proceedings.  Finally, Davis has not shown his right to counsel was denied by the postconviction court's ruling denying him the opportunity to speak with his counsel in private during the telephonic hearing.  SPECIAL CONCURRENCE ASSERTS:  I concur with the majority opinion but write separately to express my concerned that Davis's request to speak privately with his attorney by telephone was denied.  I recognize the limitations of the courthouse may make it inconvenient to honor such a request, but certainly it was not impossible.  Yet the failure to allow Davis's simple request for a private communication with his attorney suggests more concern with efficiency than with fairness.  The majority has correctly denied relief on this record finding there is no evidence here to prove Davis's request for the communication would have rendered a different result.  However, it is difficult to understand how under the circumstances here Davis could have made such a record.  If there is evidence to support his claim, he should not be foreclosed to do so in further postconviction proceedings.  

  

  

No. 11-0838.   [1-945]   WHITE v. IMT INSURANCE COMPANY 

            Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke and James C. Bauch, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Eisenhauer, P.J., Danilson, J., and Sackett, S.J.  Opinion by Eisenhauer, P.J.  (11 pages) 

  

            Nationwide Insurance Company of America and IMT Insurance Company were granted interlocutory appeal to challenge the district court order denying their separate pre-answer motions to dismiss.  They argue the court erred in finding plaintiffs had "good cause" for failure to serve the original notice within ninety days.  OPINION HOLDS:  On this record, plaintiffs have failed to meet the "some affirmative action" test regarding IMT, and we remand for dismissal of IMT.  It is undisputed Nationwide e-mailed the plaintiffs' attorney and stated Nationwide "will not require service on the company . . . and we acknowledge suit has been filed."  Accordingly, we find no error in the district court's denial of Nationwide's pre-answer motion to dismiss.     

  

  

No. 11-0794.   [1-966]   TRISTAN CONSTRUCTION, INC. v. IOWA WORKFORCE DEVELOPMENT 

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Opinion by Eisenhauer, J.  (5 pages) 

  

            Employer appeals the district court's dismissal of its petition for judicial review of agency action.  OPINION HOLDS:  A timely petition for judicial review is a jurisdictional prerequisite for review of final agency action.  We find no error in the district court's dismissal. 

  

  

No. 10-1777.   [2-005]   CUSICK v. SCOTT 

            Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., and Danilson and Bower, JJ.  Opinion by Eisenhauer, P.J.  (4 pages) 

  

            Defendant appeals the district court's summary judgment ruling foreclosing a mechanic's lien.  OPINION HOLDS:  Defendant did not raise an issue of material fact.  Defendant did not preserve his interest rate challenge for our review.  

  

  

No. 10-2088.   [2-006]   STATE v. GODINEZ 

            Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., and Danilson and Bower, JJ.  Opinion by Eisenhauer, P.J.  (2 pages) 

  

            Defendant appeals from the denial of his motion to correct an illegal sentence asserting double jeopardy and merger claims.  OPINION HOLDS:  Defendant's double jeopardy claim has no merit because distinct acts of physical contact meeting the definition of "sex act" permit separate charges.  Defendant's merger claim fails for the same reason. 

  

  

No. 11-2032.   [2-075]   IN RE J.S. 

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Eisenhauer, P.J., and Danilson and Bower, JJ.  Opinion by Eisenhauer, P.J.  (4 pages) 

  

            A mother appeals the termination of her parental rights to her two youngest children.  She does not dispute the grounds for termination were proved by clear and convincing evidence, but argues termination is not in the children's best interests.  OPINION HOLDS:  Given the young ages of the children, the lengthy prison sentence the mother is serving, the healthy bond the children have with the foster mother, and the foster mother's ability to provide for the children's best interests, we conclude termination is in the children's best interests.    

  

  

No. 09-1535.   [1-957]   STATE v. JENKINS 

            Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (12 pages) 

  

            Lloyd Jenkins appeals his conviction and sentence for failure to comply with sex registry requirements, contending his trial counsel was ineffective for failing to challenge the jury instructions and a search warrant, and in other respects.  OPINION HOLDS:  Upon our review, we conclude the instructions given to the jury did not improperly misstate applicable law.  Further, we conclude the application for the search warrant provided a "substantial basis" for the judge to conclude probable cause existed.  We preserve for postconviction relief proceedings two of Jenkins's claims of ineffective assistance of counsel.  Finally, we conclude Jenkins's remaining arguments have no merit, are not supported by authority, or did not establish prejudice.  We accordingly affirm his conviction and sentence. 

  

  

No. 10-1401.   [1-985]   SCOTT v. STATE 

            Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (21 pages) 

  

            Kelvin Scott appeals the dismissal of his application for postconviction relief (PCR), contending, through his counsel, the PCR court erred in dismissing his PCR application because the trial court erred in (1) in overruling his objection to the testimony of a phone company representative that was beyond the scope of the minutes of testimony; (2) in denying his motion for a new trial due to prosecutorial misconduct; and (3) in denying his motion for a new trial due the improper exclusion of impeachment evidence.  He also asserts several "arguments" pro se.  OPINION HOLDS:  Upon our review, we find the testimony of a phone company representative that was beyond the scope of the minutes of testimony was permissible because the testimony was offered in rebuttal of Scott's numerous statements throughout trial that another individual was responsible for the crime for which he was accused.  Additionally, although we find Scott failed to preserve error on his remaining arguments, including his pro se "arguments," we conclude Scott failed to establish any proof or prosecutorial misconduct and the exclusion of the alleged impeachment evidence was harmless error.  We accordingly affirm the court's dismissal of Scott's PCR application. 

  

  

No. 11-1000.   [1-1013]   IN RE K.K. 

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (12 pages) 

  

            A father appeals from the order terminating his parental rights to his child.  OPINION HOLDS:  Upon our de novo review, we find the father failed to preserver error on his failure to provide reasonable efforts claim.  Additionally, we agree with the juvenile court that termination of the father's parental rights was proper under Iowa Code section 232.116(1)(f) (2011), and we agree termination was in the child's best interests.  Accordingly, we affirm the ruling of the juvenile court terminating the father's parental rights. 

  

  

No. 11-1989.   [2-043]   IN RE J.L. 

            Appeal from the Iowa District Court for Polk County, Louise M. Jacobs, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (7 pages) 

  

            A mother and father appeal separately from the termination of their parental rights to their child.  OPINION HOLDS:  Upon our review, we conclude the State proved grounds for terminating the father's parental rights pursuant to Iowa Code section 232.116(1)(h) (2011).  Additionally, we find the juvenile court did not err in finding termination of the parents' parental rights was in the child's best interests.  Accordingly, we affirm on both appeals. 

 

 

No. 11-1404.   [1-983]   IN RE A.K. 

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Danilson, P.J.  (8 pages) 

  

            A father and mother appeal from the juvenile court order modifying the dispositional order to transfer custody of their children to the Iowa Department of Human Services (DHS) for placement outside the home.  Both contend the State failed to prove a substantial change in circumstance occurred following entry of the dispositional order.  The parents also contend the transfer of custody was not in the children's best interests.  OPINION HOLDS:  Considering the parents' disregard of the directives set forth in the dispositional order, the continued and worsened health and safety conditions of the family home, and the effect these issues have had on the children, we conclude a substantial change in circumstances has occurred that warrants modification of the prior court order.  We further conclude it is in the children's best interests to be removed from the parents' care.  Accordingly, we affirm the court order modifying the dispositional order to transfer custody of the children to DHS for placement outside the home. 

  

  

No. 11-1015.   [1-1005]   STATE v. McMULLEN 

            Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Danilson, P.J.  (8 pages) 

  

            Jamika McMullen appeals her conviction and sentence, following a guilty plea, for possession of marijuana, first offense, in violation of Iowa Code section 124.401(5) (2009).  She contends the district court failed to consider all relevant sentencing factors and failed to order a complete presentence investigation.  She also argues the State committed misconduct and the court relied on an unproven offense.  OPINION HOLDS:  Upon our review, we conclude the sentence entered by the district court was not based on untenable reasons, and the court did not abuse its discretion in reaching its decision.  We are unable to discern any reliance by the district court on improper facts that would overcome the presumption the court properly exercised its discretion.  We affirm the sentence entered by the district court. 

  

  

No. 11-1797.   [1-1015]   IN RE A.N. 

            Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Danilson, P.J.  (9 pages) 

  

            A mother appeals from the order terminating her parental rights to A.N., born in May 2009.  She contends the State failed to prove the grounds for termination by clear and convincing evidence and termination is not in the child's best interests.  OPINION HOLDS:  Upon our de novo review, and considering the mother's marginal compliance with case plan requirements, history of poor judgment in choosing relationships, irregular and disinterested attendance at visitation, lack of commitment to the child, and inability to care for the child at the present time, we conclude grounds exist to terminate the mother's parental rights and that termination is in the best interests of the child.  We affirm. 

  

  

No. 10-2094.   [1-987]   STATE v. BOYCE 

            Appeal from the Iowa District Court for Linn County, Russell G. Keast (Motion to Suppress) and Casey D. Jones (Trial), District Associate Judges.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Opinion by Vogel, P.J.  (4 pages) 

  

            Christopher Boyce appeals from his conviction of operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2009).  He asserts the district court erred in denying his motion to suppress, arguing the arresting officer signed a form in which he falsely certified he was the operator of the Datamaster machine, and consequently the breath test result should be suppressed as a sanction.  OPINION HOLDS:  As the district court found, at no point does this form indicate that the arresting officer was the officer who administered the breath test.  There was no false certification by the arresting officer, and Boyce's argument is without merit.  We affirm. 

 

 

No. 11-1461.   [1-1009]   IN RE E.T. 

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Opinion by Vogel, P.J.  (8 pages) 

  

            A father appeals a district court's ruling terminating his parental rights.  OPINION HOLDS:  Because we conclude the statutory elements are met under 232.116(1)(h) (2011), E.T.'s best interests are served by termination under 232.116(2), and nothing in 232.116(3) would weigh against termination, such that the district court, "need not terminate," we affirm.    

 

 

No. 11-1871.   [1-1016]   IN RE J.B. 

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Opinion by Vogel, P.J.  (6 pages) 

  

            A mother and father separately appeal the district court's ruling terminating their parental rights.  OPINION HOLDS:  Grounds for termination exist under Iowa Code section 232.116(1)(g) because despite three years of working with the Iowa Department of Human Services, the parents lack the ability or willingness to respond to services that would correct the situation, and an additional period of time will not correct the situation.  Further, the termination of parental rights is in the best interests of the child under Iowa Code section 232.116(2), and none of the reasons not to terminate under Iowa Code section 232.116(3) apply.  We therefore affirm. 

 

 

No. 10-1135.   [2-003]   CONKEY v. BOARD OF TAX REVIEW 

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Vogel, P.J.  (2 pages) 

  

            Frank and Caroline Conkey appeal from the district court's ruling on judicial review.  OPINION HOLDS:  Having carefully reviewed the record and applicable law, we find no ground upon which to reverse the district court's ruling.  We therefore affirm without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (c), and (d). 

 

 

No. 11-0333.   [2-013]   TEAGUE v. IOWA DEP'T OF TRANSP. 

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Vogel, P.J.  (3 pages) 

  

            Frank Teague appeals from the district court's ruling on judicial review.  After Teague's driver's license was revoked, Teague petitioned the Iowa Department of Transportation to reopen the proceedings and rescind the revocation.  On appeal, Teague asserts:  (1) the district court abused its discretion by denying his request to present new evidence, and (2) "[t]he district court should not have denied his request to rescind the administrative revocation."  OPINION HOLDS:  Teague wanted to present evidence that was not relevant and we conclude the district court did not abuse its discretion.  In support of his motion to reopen the record, Teague presented no evidence relevant to the grounds for rescission.  We find Teague's arguments without merit and affirm the district court. 

 

 

No. 11-1941.   [2-041]   IN RE C.B. 

            Appeal from the Iowa District Court for Floyd County, Gregg R. Rosenbladt, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Vogel, P.J.  (8 pages) 

  

            A mother and father separately appeal the district court's order terminating their parental rights.  OPINION HOLDS:  The father did not preserve error on his reasonable efforts claim as he failed to raise the claim prior to the termination hearing.  We therefore affirm the termination as to the father.  The mother's argument concerning her ability to provide for the children and whether returning the children to the mother's care would be detrimental to the children is waived for our review because the mother failed to cite authority to support any claim regarding the grounds upon which the district court ordered termination.  The mother's reasonable efforts argument must also fail because the mother failed to raise this claim prior to the termination hearing.  We therefore affirm as to the mother.    

 

 

No. 11-0802.   [1-904]   BYL v. VAN BEEK 

            Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages) 

  

            A plaintiff appeals a summary judgment ruling concluding his collection action is barred by the statute of frauds.  OPINION HOLDS:  As the plaintiff could not generate a genuine issue of material fact on two elements of his promissory estoppel argument, one of the defendants was properly granted summary judgment. 

 

 

No. 11-1112.   [1-950]   IN RE MARRIAGE OF FERGUSON 

            Appeal from the Iowa District Court for Marshall County, Timothy J. Finn, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages) 

  

            A mother appeals a ruling modifying the physical care provision of a dissolution decree.  OPINION HOLDS:  The district court correctly determined that the father established a material and substantial change in circumstances since the time of the original decree and that the father could provide superior care.  

 

 

No. 11-0980.   [1-970]   IN RE MARRIAGE OF MURRAY 

            Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages) 

  

            A wife appeals the denial of her petition to vacate the stipulated dissolution decree on the ground of irregularity, fraud, unsound mind, and unavoidable casualty.  OPINION HOLDS:  The district court's decision to deny the wife's petition to vacate the decree is supported by substantial evidence, and the court did not abuse its discretion in declining to grant a new trial. 

 

 

No. 11-0387.   [1-991]   THOMSON v. MANES 

            Appeal from the Iowa District Court for Davis County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages) 

  

            A father appeals a district court ruling declining to adopt a recommendation of the Child Support Recovery Unit to reduce his child support obligation.  OPINION HOLDS:  As the father failed to appear at the district court hearing, he is precluded from arguing the sufficiency of the facts supporting the court's decision, and the ruling must be affirmed. 

 

 

No. 11-1748.   [2-001]   IN RE K.R. 

            Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (10 pages) 

  

            The Department of Human Services appeals the portion of a dispositional order that reunified the child with her mother.  The father of the child appeals that order, as well as prior rulings.  OPINION HOLDS:  The juvenile court acted appropriately in returning the child to her mother's care, and none of the father's arguments on appeal warrant reversal. 

 

 

No. 10-1241.   [2-004]   IN RE A.D.J., Jr. 

            Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages) 

  

            A juvenile appeals an order adjudicating him a delinquent for committing the crimes of participating in a riot and disorderly conduct, contending the State failed to prove all the elements of each of the crimes.  OPINION HOLDS:  Upon a de novo review of the record, we conclude that the elements of both crimes were proved and that the juvenile was appropriately adjudicated a delinquent. 

  

  

No. 11-2034.   [2-047]   IN RE D.V. 

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages) 

  

            A mother appeals the district court's ruling terminating her parental rights to her son.  OPINION HOLDS:  Termination of the mother's parental rights was in the child's best interests, and no statutory exceptions were present in this case to defer termination. 

 

 

No. 11-0359.   [1-990]   STATE v. LOVE 

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (14 pages) 

  

            Toraino Love appeals from his convictions of intimidation with a dangerous weapon, willful injury causing serious injury, going armed with intent, and possession of a firearm as a felon.  He asserts:  (1) the district court erred in allowing into evidence the attempted murder conviction of one of the defense witnesses; (2) his trial counsel was ineffective for failing to object to evidence of prior convictions of three other defense witnesses and for not requesting the court perform the balancing test required by the Iowa Rules of Evidence in deciding whether to admit these prior convictions; and (3) the district court erred in failing to merge his conviction for going armed with intent with his conviction for intimidation with a dangerous weapon.  OPINION HOLDS:  I.  The district court did not err in admitting evidence of an attempted-murder conviction of a defense witness.  II.  Trial counsel was not ineffective and Love could not prove prejudice on claim of ineffective assistance based on the admission of prior convictions of three defense witnesses.  III.  The district court did not err in failing to merge Love's convictions.  Love's conviction for going armed with intent was based on an act separate and distinct from the act that formed the basis for his conviction for intimidation with a dangerous weapon.    

  

  

No. 11-1944.   [2-042]   IN RE M.S.B. 

            Appeal from the Iowa District Court for Pottawattamie County, Gary K. Anderson, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (4 pages) 

  

            A mother and father separately appeal the juvenile court's ruling terminating their parental rights.  OPINION HOLDS:  Given the record before us, we are unable to conclude the State made "a reasonably diligent effort" to notify the parents of the termination proceeding as required by Iowa Code § 232.112(1) (2011).  We remand this case to the juvenile court for further proceedings consistent with this opinion.    

  

  

No.  11-1651.   [1-952]   IN RE J.D.B. 

            Appeal from the Iowa District Court for Polk County, Rachel E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (18 pages) 

  

            A mother appeals the termination of parental rights to her now three-year-old son.  She argues a Wisconsin adjudication that her son was a Child in Need of Protection or Services under that state's abuse laws did not satisfy the elements of Iowa Code sections 232.116(1)(d) or (h) (2011).  She also contends that because Wisconsin did not provide her an attorney for the child protection hearings, she was not afforded reasonable services to promote reunification with her son.  Finally, she asserts termination of her parental rights was not in the child's best interests.  OPINION HOLDS:  I. The Wisconsin adjudication fits within the previous adjudication requirement of section 232.116(1)(d)(1).  II.  Because access to an attorney is not among those services the state is required to offer parents for purposes of section 232.116(1)(d)(2), she was offered adequate services to correct the circumstances that led to the initial adjudication.   III.  Termination was in the child's best interests. 

 

 

No.  11-0207.   [1-930]   BRUNS v. VERDES NORTHWEST, L.L.C.  

            Appeal from the Iowa District Court for Scott County, C.H. Pelton, Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (7 pages) 

  

            Property owner Floyd Bruns contends a fifteen-foot driveway easement across his lot has been vacated.  He asks this court to reverse the district court order confirming the existence of the easement.  OPINION HOLDS:  We conclude Bruns has failed to prove the purpose of the easement has been extinguished.  Bruns has also failed to prove the easement has been abandoned because it is still in use.  Finally, we conclude the easement was never vacated by mutual release.    

  

  

No.  11-0382.   [1-933]   BASEL v. CITY OF ANKENY  

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  REVERSED AND REMANDED.  Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (7 pages) 

  

            The Plaintiffs are homeowners in a residential subdivision located in Ankeny, Iowa. They filed suit against the City of Ankeny (City), alleging that an inadequate storm sewer and drainage system caused repeated flooding in their homes.  The district court granted the City's motion for summary judgment, finding the Plaintiffs' claims against the city were barred by issue preclusion, as well as Iowa Code section 670.4(8) (2009).  The Plaintiffs appeal.  OPINION HOLDS:  (1) The Plaintiffs' neighbors in the same subdivision brought a previous suit against the City, but the Plaintiffs had no connection to that suit other than living in the same subdivision as their neighbors.  The Plaintiffs did not have a full and fair opportunity to litigate their claims in the previous suit and therefore, the Plaintiffs' claims were not barred by issue preclusion.  (2) Under section 370.4(8), if the Plaintiffs prove the drainage system was not constructed in accordance with a generally recognized engineering standards, then the City would not have immunity from any of the Plaintiffs claims.  The record before the district court included an affidavit from the Plaintiffs' expert that explained the drainage system did not follow generally accepted principles at the time of development, thus generating a genuine issue of fact.  The district court erred in finding the Plaintiffs' claims against the City were barred by section 670.4(8).  We reverse the entry of summary judgment in favor of the City and remand. 

  

  

No.  11-0529.   [1-940]   STATE v. SORICK  

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  CONVICTION AND SENTENCE VACATED, REVERSED AND REMANDED.  Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (9 pages) 

  

            An officer stopped Sorick for riding his bicycle after dark without a light, in violation of a city ordinance.  By conducting a Terry frisk, the officer found a baggie of marijuana in Sorick's pants pocket.  He justified the frisk based on the neighborhood's reputation for danger, his proximity to Sorick, and the fact that the stop occurred on an unlit road at 12:35 a.m.  Throughout the stop, Sorick was cooperative and did not exhibit any behavior suggesting he posed a danger to the officer or was involved in any criminal activity.  Sorick appeals the validity of both the stop and the frisk.  OPINION HOLDS:  The validity of the stop is not properly preserved on appeal.  But because the officer's fear was based completely on circumstances exterior to Sorick, he did not possess sufficient specific and articulable facts to create a reasonable suspicion Sorick was armed and dangerous.  The district court should have suppressed the evidence discovered during the frisk.  We reverse the suppression ruling and vacate the conviction and sentence.    

  

  

No. 11-0745.   [1-903]   IN RE MARRIAGE OF KOLPEK 

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  Tabor, J., concurs; Danilson, P.J., dissents.  (9 pages) 

  

            Douglas Kolpek appeals a district court order interpreting the provisions of a dissolution decree regarding the proceeds from the sale of the marital home.  OPINION HOLDS:  When reading the decree's language as a whole, we find the district court's intent was to guarantee Peggy a minimum amount of proceeds from the sale of the marital home regardless of whether the sale was for "fair value."  Accordingly, we affirm the order of the district court.  DISSENT ASSERTS:  I respectfully dissent, as I believe the proper interpretation and equitable application of the terms of the decree, considering the facts of this case, require the net proceeds from the sale of the home to be equally shared between the parties.    

  

  

No.  10-0118.   [1-926]   STATE v. HARKEY  

            Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer (motion to sever), and Bradley J. Harris (trial), Judges.  AFFIRMED.  Heard by Eisenhauer, P.J., Tabor, J., and Sackett, S.J.  Opinion by Sackett, S.J.  (24 pages) 

  

            Defendant, Jimmy Jerome Harkey, appeals his conviction and sentence for robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3 (2007).  Harkey alleges the district court and his trial counsel committed a number of errors including: (1) the district court erred when it denied his motion to sever his case from his codefendants; (2) the district court erred when it denied his motion for substitute counsel; (3) the district court erred when it denied his motions for a mistrial, and trial counsel was ineffective for making an untimely motion for a mistrial based on the racial composition of the jury panel; (5) the district court erred in admitting into evidence the video of one of the victims' police interview, and trial counsel was ineffective for withdrawing his objection to the introduction of this video; (6) the district court erred when it denied Harkey's motion for judgment of acquittal; (7) trial counsel was ineffective for failing to review all the videos of the police interviews of the victims and witnesses; and (8) the district court judge erred in not recusing himself from trial.  OPINION HOLDS: We find the district court did not abuse its discretion when it denied Harkey's motion to sever his case from his codefendants or when it denied his motion for substitute counsel.  The district court also correctly denied Harkey's many motions for a mistrial.  We find Harkey's counsel did not render ineffective assistance when he withdrew his Confrontation Clause objection to Nathan Schilling's police interview video and was not ineffective for failing to offer into evidence Jarad Schilling's police interview video.  Finally, we find sufficient evidence supports Harkey's conviction and Harkey failed to preserve error on his claim that the trial judge erred in not recusing himself from trial.    

  

  

No.  11-0977.   [1-969]   JOHN DEERE COMMUNITY CREDIT UNION v. MILLER  

            Appeal from the Iowa District Court for Buchanan County, Stephen C. Clarke, Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  Tabor, J. concurs; Danilson, P.J., concurs specially.   (7 pages) 

  

            This case is a garnishment action, in which John Deere Community Credit Union, now known as Veridian Credit Union (Veridian) sought to garnish Timothy Miller's property held by Community National Bank.  OPINION HOLDS:  Because we find Iowa Code section 561.19 (2009) did not exempt the funds held by Community National Bank from garnishment, we affirm the district court's denial of Miller's motion to quash the garnishment.  SPECIAL CONCURRENCE STATES:  I specially concur as I believe Miller's argument fails because section 561.19 only exempts homestead proceeds from antecedent debts.  Iowa Code § 561.19.  Here, Veridan's judgment, as well as the underlying debt, were not preexisting debts.  Both the judgment and the underlying debt arose after the death of Miller's mother and, as a result, do not constitute an antecedent debt.  Under these facts, even if the proceeds maintained their homestead status, our homestead statute clearly does not exempt the proceeds from payment of the Veridian judgment. 

  

  

No.  11-0079.   [1-988]   STATE v. WILLFORM  

            Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Eisenhauer, J., and Sackett, S.J.   (7 pages) 

  

            Kevin Willform appeals from convictions of domestic abuse assault as an habitual offender, possession of a controlled substance as an habitual offender, and assault on a police officer following a bench trial.  Partway through the trial, Willform waived his right to counsel.  He now contends the district court failed to conduct an adequate inquiry into his decision to waive counsel, rendering his waiver unknowing and unintelligent.  Specifically, Willform argues the district court's inquiry into his decision to represent himself was inadequate because the court "failed to inquire into [his] awareness of the charges for which he was on trial and the possible punishments he faced."  OPINION HOLDS:  From our review of the entire record, we conclude the colloquy between the court and Willform was sufficient to determine his waiver of counsel was voluntary, knowing, and intelligent.  We find no merit in his argument the court was required, under the circumstances, to inform him of the charges facing him and the possible punishments.  The court's colloquy provided fair notice of the obstacles inherent in self-representation before Willform embarked on so perilous an endeavor.  Under the circumstances before us, we conclude Willform's waiver of counsel was made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. 

  

  

No.  11-0487.   [1-995]   STATE v. PESKA  

            Appeal from the Iowa District Court for Clinton County, David H. Sivright, Judge.  AFFIRMED IN PART AND VACATED IN PART.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Opinion by Sackett, S.J.  (11 pages) 

  

            Defendant, Ryan Mark Peska, appeals his conviction for conspiracy to deliver or delivery of a controlled substance, namely LSD, within 1000 feet of a public school, in violation of Iowa Code sections 124.401(1)(b)(5) and 124.401A (2009), and failure to affix a drug tax stamp, in violation of sections 453B.3 and 453B.12.  Peska asserts there was insufficient evidence presented at trial to sustain his conviction of conspiracy to deliver or delivery of LSD.  He also claims the district court imposed an illegal sentence when it 1) ordered him to pay the substance abuse resistance education surcharge on the failure to affix a drug tax stamp conviction, and 2) ordered him to serve the five-year real property sentence enhancement on the conspiracy to deliver LSD conviction.  OPINION HOLDS:  Upon our review of the record, we find there was sufficient evidence to sustain Peska's conviction on the conspiracy to deliver or delivery of LSD charge.  However, we find the district court did impose an illegal sentence.  We therefore affirm the conviction, but vacate the part of Peska's sentence ordering him to pay the ten dollar substance abuse resistance education surcharge on the failure to affix a drug tax stamp conviction, and ordering him to serve the five-year real property sentence enhancement.    

  

  

No.  11-0376.   [2-015]   IN RE MARRIAGE OF WILLIAMS  

            Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (2 pages) 

  

            Victoria Williams appeals the property distribution and spousal support provisions of the district court's decree which dissolved her marriage to Dan Williams.  OPINION HOLDS:  After reviewing the decree, the briefing, and the record, we determine that the decision of the district court should be and is hereby affirmed pursuant to Iowa Rule of Appellate Procedure 6.1203(a). 

  

  

No.  11-1394.   [1-1007]   RUCKER v. TAYLOR  

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (4 pages) 

  

            In this interlocutory appeal, the defendants contend the district court erred in denying their pre-answer motion to dismiss due to the plaintiff's failure to effect timely service of original notice pursuant to Iowa Rule of Civil Procedure 1.302(5).  OPINION HOLDS:  The defendants' insurance agent was notified the petition was filed and that the plaintiff would delay service, after which the insurance agent continued negotiations with the plaintiff's attorney.  The insurance agent's conduct was misleading.  Furthermore, once it became clear the parties could not reach an agreement, the defendants were served and the delay was only thirteen and fourteen days.  Given these circumstances, we affirm the district court's finding of good cause. 

  

  

No.  11-1760.   [1-1010]   IN RE A.O.  

            Appeal from the Iowa District Court for Ringgold County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (7 pages)  

  

            A mother appeals from the juvenile court's dispositional order in a child in need of assistance proceeding.  She argues the State failed to make reasonable efforts to reunite her with her son, T.O., and her daughter, A.O.  She also contends the State did not meet its burden to establish the children are in need of assistance.  OPINION HOLDS:  Because clear and convincing evidence shows the children were likely to suffer imminent harm due to their parents' failure to exercise a reasonable degree of supervision, we affirm the CINA adjudication pursuant to section 232.2(c)(2).  The mother did not preserve her argument concerning reasonable efforts and, therefore, we will not consider it on appeal. 

  

  

No.  11-1823.   [1-1017]   IN RE N.H.  

            Appeal from the Iowa District Court for Scott County, John G. Mullen, District Associate Judge.  AFFIRMED.  Considered by Danilson, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (9 pages) 

  

            A mother and two fathers appeal a juvenile court order terminating their parental rights to four children.  OPINION HOLDS:  I.  The juvenile court had personal and subject matter jurisdiction.  II.  The State showed by clear and convincing evidence that the children could not be returned to any of the parents' care at the time of the termination hearing.  III.  The parents were provided reasonable reunification services.  Accordingly, we affirm. 

  

  

No.  11-0245.   [2-011]   STATE v. O'REGAN  

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (9 pages) 

  

            Dean O'Regan appeals his conviction for operating a motor vehicle while under the influence of a drug, arguing the trial court erred in denying his motion for judgment of acquittal.  OPINION HOLDS:  O'Regan provided sufficient evidence showing the prescription medication defense set forth under Iowa Code section 321J.2(7)(a) (2009) applied in this case.  The State then failed to disprove the affirmative defense beyond a reasonable doubt.  It was undisputed that O'Regan had a valid prescription for the medication he was using and had not consumed any alcohol.  In addition, the State failed to present sufficient evidence to show that O'Regan was directed to refrain from operating a motor vehicle by his doctor or pharmacist or that he did not take the medication in accordance with the directions of his doctor and the labeling instructions.  Accordingly, we reverse the judgment for operating a motor vehicle while under the influence of a drug and remand the case for dismissal of the charge. 

  

  

No.  11-0615.   [2-023]   STATE v. FAIN  

            Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (4 pages) 

  

            Raquel Marie Fain appeals from the judgment and sentence entered following her plea of guilty to possession of heroin.  Specifically, she argues the court abused its discretion when it denied her request for a deferred judgment.  OPINION HOLDS: Because the evidence shows the court properly exercised its discretion in imposing judgment, but suspending Fain's sentence, we affirm. 

  

  

No.  11-1937.   [2-040]   IN RE A.O.  

            Appeal from the Iowa District Court for Ringgold County, Monty W. Franklin, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (6 pages) 

  

            A mother appeals from the juvenile court's permanency order in a child in need of assistance proceeding.  She contends the court erred in establishing a guardianship for her children, A.O. and T.O., with their paternal aunt.  OPINION HOLDS: We find clear and convincing evidence supports the entry of the permanency order.  Granting the mother an additional six months to reunify with the children before establishing the guardianship is not in their best interests.    

  

  

No. 11-0829.   [1-1000]   FARM CREDIT SERVS. OF AMERICA v. BUHR 

            Appeal from the Iowa District Court for Howard County, James Bauercamper, Judge.  AFFIRMED AND REMANDED.  Considered by Vogel, P.J., Eisenhauer, J., and Sackett, S.J.  Per Curiam.  (8 pages) 

  

            Defendant appeals the jury's verdict awarding damages to his lender and finding he failed to prove his claim for damages.  OPINION HOLDS:  We find no merit to the issues raised on appeal and remand for an evidentiary hearing to determine appellate attorney fees.