SUMMARY OF DECISIONS, IOWA COURT OF APPEALS
October 21, 2009
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an unpublished opinion of the Iowa Court of Appeals may be cited in a brief;
however, unpublished opinions shall not constitute controlling legal authority.
NOTE:
Copies of these opinions may be obtained from the Clerk of the Supreme
Court, Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50319,
for a fee of fifty cents per page.
_____________________________________________________________________________
No.
08-1224. [9-530] STATE v. MOSS
Appeal from the Iowa District Court
for Boone County, David Danilson, Judge. AFFIRMED.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. Dissent by Sackett, C.J. Danilson, J., takes no part. (21 pages $10.50)
Aron
Michael Moss appeals following his conviction for second-degree murder,
contending there was insufficient evidence to support the jury's verdict, the
district court erred in failing to give a corroboration instruction to the
jury, and his trial counsel was ineffective in several respects. OPINION
HOLDS: We find Moss's trial counsel
failed to preserve his sufficiency of the evidence and jury instruction issues
for our review, but address these issues as ineffective-assistance-of-counsel
claims. We conclude Moss's
ineffective-assistance-of-counsel claims must fail because (1) Moss suffered no
prejudice from trial counsel's failure to challenge the sufficiency of the
evidence at trial concerning the second-degree murder charge because
substantial evidence supports the jury's verdict; (2) Moss suffered no
prejudice from trial counsel's failure to request that the court give an
instruction on accomplice corroboration; (3) statements as testified to by the
accomplice were not hearsay, their admission did not violate the Confrontation
Clause and consequently, Moss suffered no prejudice from trial counsel's
failure to object to the testimony; and (4) the prosecutor's comments did not
rise to the level of misconduct and there is not a reasonable probability the
outcome of the trial would have been different if his trial counsel had
objected to the prosecutor's comments.
Accordingly, we affirm Moss's conviction for second-degree murder. DISSENT
ASSERTS: I dissent from the majority
opinion because I find the defendant received ineffective assistance of counsel
by his attorney's failure to request a corroboration instruction. I disagree with the majority's conclusion
that the defendant suffered no prejudice because there was corroborative
evidence to support the accomplice's testimony.
The legal adequacy of corroborative evidence is a question of law for
the court but once its existence is established, the sufficiency of the
corroborative evidence must be determined by the jury. State v. Brown, 397 N.W.2d 689, 695
(Iowa 1986). Counsel's failure to
request a jury instruction on corroboration deprived the defendant of the
jury's proper evaluation of the sufficiency of the corroborative evidence. I find the defendant was prejudiced by this
failure and would reverse and remand.
No.
09-1227. [9-782] IN RE D.J.
Appeal from the Iowa District Court
for Linn County, Barbara Liesveld, District Associate Judge.
REVERSED AND REMANDED FOR DISMISSAL.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ. Opinion by Doyle, J. (7 pages $3.50)
A
mother appeals the juvenile court's order adjudicating her child as a child in
need of assistance (CINA). OPINION HOLDS: Because we find clear and convincing evidence
does not support finding the child a CINA under Iowa Code section
232.2(6)(c)(2) (2009) and we find the court's aid is not required to ensure the
child's mental health needs continue to be met, we reverse the juvenile court's
order adjudicating the child a CINA and remand for dismissal.
No.
09-1347. [9-825] IN RE M.S. Jr.
Appeal from the Iowa District Court
for Linn County, Susan Flaherty, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Doyle, J. (8 pages $4.00)
A mother appeals from the order
terminating her parental rights to her child.
OPINION HOLDS: The juvenile court did not err in finding
clear and convincing evidence supported termination of the mother's parental
rights, which we find, like the juvenile court, is in the child's best
interests.
No.
08-2004. [9-750] QUANGVAN v. REID
Appeal from the Iowa District Court
for Muscatine County, Nancy S. Tabor, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., Mansfield,
J., and Mahan, S.J. Opinion by
Mansfield, J. (8 pages $4.00)
Andy
Quangvan, the father of Nathan, appeals the district court's order granting
Danielle Reid, the mother of Nathan, physical care of the child pursuant to
Iowa Code section 600B.40 (2007). Andy argues that he is better suited to
provide for Nathan's long-term best interests. OPINION HOLDS: Upon our de novo review, we agree with the
district court's decision. The parties agree that shared physical care is
not feasible. The record shows that Danielle, unlike Andy, has been
Nathan's primary caregiver when he has been in her care and would be a suitable
custodian. Accordingly, we affirm the judgment below.
No.
09-0062. [9-754] STATE v. DUKES
Appeal from the Iowa District Court
for Linn County, David M. Remley, Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J. Opinion by Mansfield, J. (6 pages $3.00)
Melissa
Dukes appeals from her conviction of gathering where controlled substances
unlawfully used in violation of Iowa Code section 124.407 (2007). OPINION
HOLDS: Viewed in the light most
favorable to the State, the evidence was sufficient to find Dukes provided both
her apartment and illegal drugs so that a gathering of two or more persons
therein could distribute, use, or possess illegal drugs. Therefore, we affirm Dukes's conviction.
No.
09-0233. [9-760] GREENE v. STATE
Appeal from the Iowa District Court
for Black Hawk County, Todd A. Geer, Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J. Opinion by Mansfield, J. (6 pages $3.00)
James
Michael Greene appeals the district court decision denying his application for
postconviction relief. Greene, who was
convicted of a gunpoint robbery despite arguing at trial that he was intending
to retrieve his own property, maintains his trial counsel was ineffective for
failing to object properly to a jury instruction that stated "a rebuttable
presumption exists that those in possession of property are rightly in
possession." Greene contends this
instruction improperly shifted the burden of proof to him, and thereby violated
his due process rights. OPINION HOLDS: In State
v. Miller, 622 N.W.2d 782, 785-87 (Iowa Ct. App. 2000), we held the
statutory claim of right defense is unavailable to a defendant in a robbery
case. Therefore, Greene was not entitled
to contest the victim's "right" to the property anyway and was not prejudiced
by the jury instruction. Accordingly, we
affirm the denial of his application for postconviction relief.
No.
09-1349. [9-827] IN RE D.T.
Appeal from the Iowa District Court
for Linn County, Susan Flaherty, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Mansfield,
J. (7 pages $3.50)
A
mother appeals from the juvenile court order terminating her parental rights to
two children, aged ten and fourteen, pursuant to Iowa Code sections
232.116(1)(e) and (f) (2009). The mother
asserts that the State failed to prove the statutory grounds by clear and
convincing evidence. OPINION HOLDS: Clear and convincing evidence demonstrated
that the children could not presently be returned to the mother's custody. The children have been out of the mother's
custody for most of their lives. At the
time of the termination hearing, the mother was in a residential treatment
facility for substance abuse and would not be able to regain custody of her
children for at least six months. Even
after six months, concerns would remain as to the mother's ability to maintain
stable employment and housing and remain drug-free. Termination of parental rights is also in the
children's best interests. We affirm.
No.
09-0415. [9-765] STATE v. RAVE
Appeal from the Iowa District Court
for Story County, Thomas R. Hronek, District Associate Judge.
AFFIRMED. Considered by
Vogel, P.J., Potterfield, J., and Huitink, S.J.
Opinion by Huitink, S.J. (10
pages $5.00)
At
an evening football game at Iowa State University in Ames, two police officers
saw a car driving in a parking lot full of tailgaters, after dark, without its
headlights on. The officers walked up to
the vehicle and tapped on the window to tell the driver to turn on his
lights. The driver, Erik Rave, displayed
signs of intoxication. Rave was
convicted of operating while intoxicated.
He filed a motion to suppress, claiming there was no lawful basis to
stop his vehicle. The State conceded
there was no traffic violation because Rave was not driving on a highway, but
claimed there was a valid investigatory stop.
The court determined the officers had probable cause to approach the
vehicle. The court also found the
officers could stop the vehicle as part of their community caretaking function,
an issue not raised by the parties. Rave
appeals the court's ruling on his motion to dismiss. OPINION
HOLDS: I. Rave contends the court
improperly relied upon the community caretaking function when that issue was
not raised by the parties at the suppression hearing. The ruling on the motion to suppress was an
evidentiary ruling. We may uphold a
ruling on the admissibility of evidence on any ground appearing in the record,
whether urged below or not. Whether or
not the issue of the community caretaking function was raised by the State, we
may affirm if the record supports a denial of the motion to suppress on this
issue. II. We will assume, without deciding, there was a
"seizure" when officers stopped Rave's vehicle.
The officers testified there were a number of people in the area, and
some were intoxicated. The officers both
expressed that it was a safety concern for someone to drive in this tailgating
area, after dark, without headlights.
The officers had specific and articulable public safety concerns in
making the stop. We also find the
public's needs and interests outweighed the intrusion upon Rave's privacy. We affirm the decision of the court.
No.
09-0254. [9-761] STATE v. BYRNE
Appeal from the Iowa District Court
for Muscatine County, Gary P. Strausser, District Associate Judge.
AFFIRMED. Considered by
Vaitheswaran, P.J., Mansfield, J., and Mahan, S.J. Opinion by Mahan, S.J. (7 pages $3.50)
Kyle
Byrne appeals following his conviction and sentence for operating while
intoxicated, second offense. He contends
the district court erred in denying his motion to suppress because the
arresting officer did not have reasonable suspicion to stop his vehicle. OPINION
HOLDS: We conclude the facts and
circumstances in this case gave rise to the arresting officer's reasonable
suspicion that criminal activity had occurred or was occurring, and therefore
justified the investigatory stop of Byrne.
Because we conclude the stop was reasonable, we affirm the district
court's denial of Byrne's motion to suppress.
We affirm Byrne's conviction and sentence.
No.
09-0463. [9-767] STATE v. HARTSFIELD
Appeal from the Iowa District Court
for Scott County, Nancy S. Tabor, Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., Mansfield, J., and Mahan, S.J. Opinion by Mahan, S.J. (2 pages $1.00)
Napolean
Hartsfield appeals the district court's dismissal of his request for DNA
testing of evidence from his conviction for possession with intent to
deliver. OPINION HOLDS: We find no
error in the district court's dismissal of Hartsfield's motion for DNA testing. Therefore, we affirm.
No.
09-0694. [9-772] NAVAJO ASSOCIATES, L.L.C. v. DANIELS
Appeal from the Iowa District Court
for Lucas County, Eliza J. Ovrom, Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., Mansfield, J., and Mahan, S.J. Opinion by Mahan, S.J. (5 pages $2.50)
Curt
Daniels and Lelibeth Cando appeal from a decree of foreclosure. OPINION
HOLDS: As no genuine issue of
material fact remains in the foreclosure action, the district court properly
granted summary judgment.
No.
09-1228. [9-780] IN RE J.M.A. and J.L.A.
Appeal from the Iowa District Court
for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield
and Mansfield, JJ. Opinion by Vogel,
P.J. (4 pages $2.00)
A
father appeals from the district court's order terminating his parental rights
to his two children pursuant to Iowa Code sections 232.116(1)(f), (h), and (l) (2009). On appeal, he challenges the sufficiency of
the evidence, essentially arguing that the children could be returned to his
care, and claims he should have been given more time prior to termination. OPINION
HOLDS: Upon our review, we find the
district court had clear and convincing evidence to support termination of the
father's parental rights and termination is clearly in the children's best
interests.
No.
09-1229. [9-826] IN RE K.B. and S.B.
Appeal from the Iowa District Court
for Grundy County, Stephen C. Clarke, Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Vogel,
P.J. (3 pages $1.50)
Julie
appeals the district court order denying her visitation with her children. OPINION
HOLDS: We agree with the district
court's findings of facts, reasoning, and conclusions, and affirm.
No.
09-0143. [9-710]
STATE v. STEWART
Appeal from the Iowa District Court
for Lee (South) County, Gary R. Noneman, District Associate Judge.
REVERSED AND REMANDED.
Considered by Vogel, P.J., and Potterfield, J., and Huitink, S.J. Opinion by Vogel, P.J. (5 pages $2.50)
Charles
Stewart Jr. pled guilty to assault causing bodily injury. As part of Stewart's sentence, he was ordered
to pay restitution to the Iowa Department of Human Services for Medicaid
expenditures that were paid for the treatment of the victim's injuries. On appeal, Stewart asserts the district court
erred in ordering him to pay restitution for Medicaid expenditures. OPINION
HOLDS: We find the Medicaid program
is not a "victim" entitled to restitution under Iowa Code chapter 910
(2005).
No.
08-2049. [9-649] KLINE v. AIRHART
Appeal from the Iowa District Court
for Polk County, Donna L. Paulsen, Judge. AFFIRMED.
Considered by Vogel, P.J., and Potterfield, J., and Huitink, S.J. Opinion by Vogel, P.J. (7 pages $3.50)
Richard
appeals the district court decision on his petition to modify custody of his
and Michelle Airhart's son and in setting child support. OPINION HOLDS: We agree with the district court Richard did
not prove that since December 2006 there has been a material and substantial
change sufficient to warrant disruption in Ethan's life, by once again changing
his physical care. We also conclude the
district court, after considering many factors, properly imputed income to
Richard before setting the amount of child support.
No.
08-1925. [9-697] ASLING v. STATE
Appeal from the Iowa District Court
for Black Hawk County, John J. Bauercamp, Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield,
J., and Huitink, S.J. Opinion by Vogel,
P.J. (8 pages $4.00)
The
State appeals the district court's grant of a new trial following Robert
Asling's application for postconviction relief.
OPINION HOLDS: We agree
with the district court that counsel should have moved for a mistrial when
evidence of a prior bad act was introduced without clear proof of the
commission of the act by Asling. The
admissible evidence is not overwhelming, therefore, evidence of the prior
alleged abuse resulted in prejudice to Asling.
No.
08-1583. [9-443] FRANCIS v. BREMER CO.
Appeal from the Iowa District Court
for Bremer County, Stephen P. Carroll, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Mansfield,
J., and Miller, S.J. Opinion by
Vaitheswaran, P.J. Special concurrence
by Miller, S.J. (8 pages $4.00)
A
buyer and seller of land appeal the district court's decision finding that a
county board of supervisors did not act illegally in denying their request to
rezone the land from agricultural to residential. OPINION
HOLDS: Although the county had
adopted a comprehensive land use plan that indicated that the plaintiffs' land
was designated for future residential use, the board of supervisors properly
considered other factors within the plan in making its decision to deny the
plaintiffs' request to rezone the property. SPECIAL CONCURRENCE HOLDS: I concur specially, with statement, believing
the record supports the decision of the district court and this court's
affirmance on appeal.
No.
08-1640. [9-487] JONGMA v. GRAND PORK, INC.
Appeal from the Iowa District Court
for Sioux County, Gary Wenell, Judge. AFFIRMED. Heard by Sackett, C.J., and Eisenhauer and
Doyle, JJ. Opinion by Eisenhauer, J. (11 pages $5.50)
The plaintiffs appeal from the district court order
granting the defendants summary judgment.
They contend the court erred in applying the statute of frauds to the
case. They also contend the court erred
in holding the promissory estoppel exception did not apply. OPINION
HOLDS: The terms of the 1998
easements are clear and unambiguous on their face and, therefore, parol
evidence is not admissible. We find no
error in the court's ruling rejecting the plaintiffs' promissory estoppel
claim. Because the plaintiffs have not
shown the existence of a contract that bound Grand Pork to allow them to use
all the manure produced at the hog confinement facilities, we affirm the
district court's grant of summary judgment in favor of Grand Pork on the
plaintiffs' breach of contract claim. As
the plaintiffs' remaining claims are dependent upon a reversal of the district
court's grant of summary judgment on the breach of contract claim, we need not
address them.
No.
09-0243. [9-716] STATE v. ZIEMELIS
Appeal from the Iowa District Court
for Story County, Steven P. VanMarel, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield,
J., and Miller, S.J. Opinion by Miller,
J. (5 pages $2.50)
Brandon Ziemelis pled guilty to
operating a vehicle without the owner's consent, arising out of an incident in
which he took another's car, drove it some 6000 miles, damaged it, and in the
process deprived the owner of its use for five weeks. On appeal Ziemelis challenges the amounts of
pecuniary damages assessed by the district court as victim restitution for repairs
of the damage, depreciation, and loss of use.
OPINION HOLDS: We find no error in the amounts assessed by
the court.
No.
09-0247. [9-717] STATE v. MOORE
Appeal from the Iowa District Court
for Polk County, Douglas F. Staskal, Judge.
SENTENCES VACATED; REMANDED FOR
RESENTENCING. Considered by Vogel,
P.J., and Potterfield, J., and Miller, S.J.
Opinion by Miller, S.J. (6 pages
$3.00)
Jon Ross Moore appeals the sentences
imposed following his guilty pleas to two counts of forgery. OPINION
HOLDS: We conclude Moore has met his
burden to show that the sentencing court considered charges to which he did not
admit and that were not otherwise proved.
We therefore vacate the sentences and remand for resentencing.
No.
08-1424. [9-734] IN RE ESTATE OF JANSSEN
Appeal from the Iowa District Court
for Grundy County, Jon C. Fister, Judge.
AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Sackett,
C.J. (2 pages $1.00)
The estate of Charles Janssen appeals from the
district court's grant of summary judgment in favor of the estate of Hilda
Janssen on appellant's counterclaims, claim for contribution, and claim of
interference with quiet enjoyment of a lease.
OPINION HOLDS: We find no error of law and conclude the
judgment of the district court is correct.
No.
08-1762. [9-738] STATE v. VANCE
Appeal from the Iowa
District Court for Black Hawk County, George L. Stigler, Judge.
AFFIRMED. Considered by
Sackett, C.J., and Eisenhauer and Doyle, JJ.
Opinion by Eisenhauer, J. (8
pages $4.00)
Robert Vance appeals his convictions
for possession of methamphetamine precursors with the intent to manufacture
methamphetamine. Vance argues the evidence is insufficient to support the
jury's verdict, the court erred in overruling his motion to suppress evidence,
and his counsel was ineffective. OPINION HOLDS: Sufficient record evidence supports the
jury's determination Vance possessed pseudoephedrine with the intent to
manufacture methamphetamine. Applying an objective standard to the facts
available to the police officer would lead a reasonable person to believe the
stop of Vance's vehicle was appropriate.
We preserve Vance's ineffective assistance claim for possible
post-conviction proceedings.
No.
08-1872. [9-744] SMITH v. MEADOWS
Appeal from the Iowa District Court
for Monona County, Duane E. Hoffmeyer, Judge.
AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED. Considered by
Sackett, C.J., and Eisenhauer and Doyle, JJ.
Opinion by Sackett, C.J. (7 pages
$3.50)
Plaintiffs Gaylen Smith and Lloyd Pauley d/b/a P &
S Equipment appeal from a money judgment in their favor contending the district
court erred in not awarding them interest.
They further contend the court improperly valued a tractor. Defendant bought a tractor from plaintiffs on
October 2, 1997, and tendered a check.
The check was not honored and, on February 24, 2000, the parties signed
an agreement that memorialized the transaction and provided for fifteen percent
interest on the amount of the check. On
October 5, 2007, plaintiffs filed a petition contending no payment had been
made and they should have the purchase price less the value of the tractor now
in their possession. They also asked for
interest as provided for in the 2000 agreement.
The court found defendant affirmed the initial purchase of the tractor,
presented a check for the full purchase price, took possession of the tractor,
and used it from October 2, 1997, until Mary 4, 2007, without making any
payments. It further found when the
tractor was returned it had a value of $11,000.
The court denied the plaintiffs interest, finding that it was waived as
they made little effort to collect interest until suit was filed and to award
it would be grossly inequitable. OPINION HOLDS: Waiver is an affirmative defense. Failure to plead an affirmative defense
normally results in waiver of the defense.
The burden of proving an affirmative defense by a preponderance of the
evidence rests upon defendant. Defendant
did not raise an affirmative defense.
There is no evidence of an affirmative act of plaintiffs that would
indicate a waiver, nor is there any evidence of an express or intentional
relinquishment of the right to collect it.
Defendant offered no proof to support a waiver. Defendant cites no authority, nor do we find
any that would support a finding that a minimal attempt to collect a debt,
standing alone, is substantial evidence to support a finding of a waiver. Defendant did not prove the affirmative
defense of waiver. We reverse on this
issue and remand to the district to consider plaintiffs' claim for
interest. Plaintiffs contend the
district court erred in valuing the tractor at $11,000. The valuation is within the permissible range
of the evidence and we affirm on this issue.
Defendant has requested appellate attorney fees but cites no statutory
or contract provision that supports his request and we deny it.
No.
08-1953. [9-747] STATE v. BRYANT
Appeal from the Iowa District Court
for Scott County, James E. Kelley, Judge.
AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Eisenhauer,
J. (3 pages $1.50)
Appellant has failed to show the trial court
considered improper factors in imposing sentence.
No.
08-2040. [9-752] IN RE MARRIAGE OF HAZEN
Appeal from the Iowa District Court
for Scott County, Nancy S. Tabor, Judge.
AFFIRMED AS MODIFIED. Considered by Sackett, C.J., and Eisenhauer
and Doyle, JJ. Opinion by Sackett,
C.J. (9 pages $4.50)
Timothy E. Hazen appeals,
challenging the economic provisions of the decree dissolving his marriage to
Jeanne M. Hazen. The parties were
married in 1986. Jeanne is forty-seven
and Timothy is fifty. Both parties
graduated from high school. At trial,
Jeanne's annual income was $20,000 and Timothy's was $35,000. The trial court awarded Jeanne values of
$72,357 and Timothy values of $14,962.
Jeanne received alimony of $334 a month for forty-eight months and then
one dollar a year until she qualifies for and begins receiving social security
benefits. Timothy filed a motion pursuant
to Iowa Rule Civil Procedure 1.904(2) contending the financial provisions of
the decree were not equitable. The
district court responded that it intended to award Jeanne $1000 a month alimony
and awarded $334, a lesser sum as alimony, to offset the unequal property
division. Alimony was set at that
figure. OPINION HOLDS: We do not
believe that it is equitable to give the party requesting spousal support the
majority of the assets accumulated during the marriage and then reduce the
spousal support the other party is to pay to allegedly compensate for the fact
he or she received substantially less property.
This is a marriage that calls for a nearly equal division of the
accumulated assets. We therefore modify
to provide for a nearly equal division of accumulated assets and to impose a
lien on property in Timothy's name to assure his responsibility for a credit
card in Jeanne's name is discharged. The
balance of the decree is affirmed.
No.
09-0089. [9-756] POWELL v. STATE
Appeal from the Iowa
District Court for Crawford County, Edward A. Jacobson, Judge.
AFFIRMED. Considered by
Sackett, C.J., and Eisenhauer and Doyle, JJ.
Opinion by Eisenhauer, J. (3
pages $1.50)
Jason Powell appeals from the denial
of his application for postconviction relief.
He contends his trial counsel was ineffective. OPINION
HOLDS: Because Powell has failed his
burden of proving prejudice, we affirm the district court's denial of his
motion for postconviction relief.
No.
09-0377. [9-764] STATE v. SHAW
Appeal from the Iowa District Court
for Mitchell County, Bryan H. McKinley, Judge.
AFFIRMED. Considered by Vogel, P.J., and Potterfield,
J., and Miller, S.J. Opinion by Miller,
S.J. (10 pages $5.00)
Howard Shaw, Jr. appeals his
conviction for operating while intoxicated, second offense, in violation of
Iowa Code section 321J.2 (2007). He
contends the district court erred in denying his motion to suppress
evidence. Because we conclude Shaw's
rights against unreasonable search and seizure were not violated, we affirm.
No.
09-0465. [9-768] STATE v. TIEGEN
Appeal from the Iowa District Court
for Story County, Steven P. VanMarel, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield,
J., and Miller, S.J. Opinion by Miller,
S.J. (5 pages $2.50)
Arnold Keith Tiegen appeals his
conviction, following guilty pleas, for interference with official acts causing
bodily injury and third-offense public intoxication. Tiegen was sentenced to consecutive jail
terms. He claims his guilty pleas were
not knowing and voluntary, asserting the record does not show he was informed
of the possibility of consecutive sentences.
OPINION HOLDS: Tiegen was not adequately informed of the
consequences of not filing a motion in arrest of judgment, and accordingly may
assert his claim on appeal despite not filing such a motion. The written pleas of guilty signed by Tiegen
each acknowledge that the State would recommend consecutive jail sentences. We conclude those written pleas show that
Tiegen was aware any terms of incarceration might be imposed to run
consecutively.
No.
08-1940. [9-698] STATE v. MAKIN
Appeal from the Iowa District Court
for Fayette County, Nathan A. Callahan, District Associate Judge.
REVERSED AND REMANDED. Considered
by Vaitheswaran, P.J., and Mansfield, J., and Schechtman, S.J. Opinion by Vaitheswaran, P.J. (5 pages $2.50)
The
State seeks discretionary review of a district court ruling granting a
defendant's motion to suppress evidence found as a result of a search conducted
by a police officer, contending that the officer conducted a valid pat-down
search that resulted in the discovery of marijuana. OPINION
HOLDS: Based upon the defendant's
conduct, the officer could have reasonably feared for his own safety as well as
the safety of his fellow officer, and was therefore justified in conducting the
search that yielded the contraband in this case.
No.
09-1204. [9-779] IN RE A.K.S.
Appeal from the Iowa District Court
for Washington County, Lucy J. Gamon, District Associate Judge.
REVERSED AND REMANDED.
Considered by Vaitheswaran, P.J., and Doyle and Mansfield, JJ. Opinion by Vaitheswaran, P.J. (9 pages $4.50)
A
mother appeals the termination of her parental rights to her four-year-old
daughter. She contends the juvenile
court erred in finding (1) "reasonable efforts for reunification had been
provided to [her] and in not continuing the case six months to allow for these
efforts to take place," (2) "the termination was in the best interests of [the
child]," and (3) "clear and convincing evidence the child could not be returned
to [her] home." OPINION HOLDS: Reviewing the
record de novo, we find the second ground for reversal dispositive and conclude
it is in the child's best interests to postpone the termination of the mother's
parental rights for six months to test her ability to independently parent the
child. We therefore reverse the
termination of the mother's parental rights and remand for further proceedings.
No.
08-1683. [9-449] FRONTIER v. LINKS ENGINEERING
Appeal from the Iowa District Court
for Polk County, Scott D. Rosenberg, Judge. REVERSED AND REMANDED. Heard by Vogel, P.J., and Potterfield, J.,
and Mahan, S.J. Opinion by Potterfield,
J. (8 pages $4.00)
Bluff
Creek Golf Course appeals from the district court's order entering summary
judgment in favor of Frontier Leasing Corporation. Bluff Creek argues the district court erred
in finding as a matter of law that: (1) a lease signed by golf professional
Dave Fleming on behalf of Bluff Creek was properly assigned and therefore
Frontier was the real party in interest, and (2) Fleming had authority to sign
financing agreements on behalf of Bluff Creek.
OPINION HOLDS: The record
does not show an actual assignment or intent to assign the lease by the
original lessor, C and J Leasing Corporation, to any other party. Therefore, C and J Leasing Corporation, not
Frontier Leasing Corporation, is the real party in interest. Accordingly, we reverse the district court's
award of attorney fees.
No.
08-1956. [9-748] STATE v. WRIGHT
Appeal from the Iowa District Court
for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Potterfield,
J., and Huitink, S.J. Opinion by
Potterfield, J. (8 pages $4.00)
Connie
Wright appeals from the judgment and conviction entered on the charge of
operating a child care center without a license. She argues her counsel was ineffective for
failing to: (1) argue in the motion for judgment of acquittal that there was
insufficient evidence that her child care business fit the statutory definition
of "child care center"; (2) object to testimony and exhibits that were unfairly
prejudicial; and (3) object to the prosecutor's inflammatory and misleading
comments. OPINION HOLDS: I. The State presented substantial
evidence that Wright was guilty of the crime with which she was charged, and
her counsel breached no duty in failing to make a meritless argument in the
motion for judgment of acquittal. II. Wright cannot prove she was
prejudiced by counsel's failure to object to allegedly unfairly prejudicial
exhibits and testimony. III. Wright cannot prove she was denied
a fair trial as a result of the prosecutor's inflammatory statements. The prosecutor correctly stated the law as it
applied to this case.