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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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

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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.