Court of Appeals Opinions

            Appeal from the Iowa District Court for Dallas County, Michael Jacobsen, Judge.  AFFIRMED.  Heard by Tabor, P.J., Buller, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (17 pages)

            Mark Mash appeals after a jury found him guilty of first-degree murder and possession of a firearm by a person convicted of domestic violence.  He challenges the jury instructions, the denial of his motion for mistrial, and the admissibility of text message evidence.  He also contends that his first-degree-murder conviction is unsupported by substantial evidence and contrary to the weight of the evidence.  Finally, Mash contends trial counsel’s deficient representation rises to the level of structural error.  In the alternative, he asks us to adopt a plain-error standard to reach the errors his counsel failed to preserve.  OPINION HOLDS: We find no error in the jury instructions.  Mash has not met his burden of showing the district court abused its discretion in denying a mistrial. The text messaging evidence was relevant to whether Mash was justified or acted with malice aforethought and did not unfairly prejudice him.  Viewing the evidence in the light most favorable to the State, we agree that the evidence is enough to convince a rational factfinder of Mash’s guilt beyond a reasonable doubt.  This is not one of the exceptional cases in which the evidence preponderates heavily against the verdict.  Mash fails to show the district court abused its discretion in denying his motion for new trial.  We are prohibited by statute from considering the ineffective-assistance-of-counsel claims on direct appeal.  We cannot overrule precedent that rejects plain-error review.

            Appeal from the Iowa District Court for Tama County, Fae E. Hoover, Judge.  AFFIRMED.  Considered by Greer, P.J., and Schumacher and Badding, JJ.  Opinion by Greer, P.J.  (10 pages)

            Barry Evans appeals the admission of body camera footage as hearsay not subject to the present sense impression exception.  OPINION HOLDS: Although the statements were hearsay and do not qualify for admission as present sense impressions, they do fit within the excited utterance exception to the rule against hearsay, and, in any event, were cumulative.  Therefore, the district court did not err in admitting them.  We affirm.

            Appeal from the Iowa District Court for Buchanan County, John J. Bauercamper, Judge.  AFFIRMED.  Heard by Greer, P.J., and Schumacher and Badding, JJ.  Opinion by Greer, P.J.  (19 pages)

            A jury convicted Kari Schwartz of sexual exploitation by a school employee, by pattern, practice, or scheme.  Schwartz appeals the judgment and sentence, arguing (1) there is insufficient evidence she engaged in a pattern, practice, or scheme to engage in sexual conduct with a student; (2) the district court erred in instructing the jury that hugging constituted sexual conduct; (3) the district court wrongly excluded evidence of the school’s contemporaneous investigation that resulted in an “unfounded” finding; and (4) the district court violated her Sixth and Fourteenth Amendment rights when it applied Iowa Code section 907.3 (2022), which prevented the court from deferring judgment or imposing a suspended sentence, without specific jury findings that she was a mandatory reporter and the student was under eighteen years old at the time of the sexual exploitation.  OPINION HOLDS: Substantial evidence supports the jury’s finding Schwartz engaged in a pattern, practice, or scheme to engage in sexual conduct with A.S.  Although the jury was wrongly instructed that hugging is sexual conduct per se, when taken as a whole, the jury instructions required the jury to make the appropriate findings to determine Schwartz’s guilt.  We do not reach the merits of Schwartz’s claim the district court wrongly excluded evidence of the finding of a 2009 investigation.  And Schwartz’s constitutional rights were not violated when the district court concluded it was prevented from deferring judgment or suspending Schwartz’s sentence.  We affirm.

            Appeal from the Iowa District Court for Muscatine County, Tom Reidel, Judge.  AFFIRMED.  Considered by Ahlers, P.J., Badding, J., and Gamble, S.J.  Opinion by Badding, J.  (10 pages)

            Alejandro Flores appeals his conviction of one crime, challenging the sufficiency of the evidence, and the imposition of consecutive sentences on two counts of going armed with intent and two counts of willful injury causing serious injury.  OPINION HOLDS: We find sufficient evidence to support the challenged conviction and detect no abuse of discretion in the court’s imposition of consecutive sentences.

            Appeal from the Iowa District Court for Webster County, James A. McGlynn and Angela L. Doyle, Judges.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J. (14 pages)

            Michael Shivers appeals his convictions for second-degree murder, challenging the sufficiency of the evidence supporting his convictions and contending the district court abused its discretion in denying his motion for a new trial based on newly-discovered evidence.  OPINION HOLDS: Upon our review, we affirm.

            Appeal from the Iowa District Court for Des Moines County, Mark Kruse, Judge.  AFFIRMED.  Heard by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Ahlers, J.  (9 pages)

            Brian Boyd appeals following his convictions for possession of a controlled substance with the intent to deliver and a drug tax stamp violation.  He requests we overturn supreme court precedent to apply a different standard under the Iowa Constitution than the one used under the federal Constitution to assess claims that a probable cause affidavit included incorrect information.  He challenges the district court’s denial of his request for a hearing in accordance with Franks v. Delaware, 438 U.S. 154, 155–156 (1978).  And he argues the underlying search warrant was not supported by probable cause.  OPINION HOLDS: We cannot overturn supreme court precedent.  Boyd failed to make the preliminary showing necessary to warrant a Franks hearing.  The warrant was supported by probable cause.

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Heard by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Chicchelly, J.  (21 pages)

            Shane Michael Morris appeals his convictions for involuntary manslaughter and child endangerment resulting in death, alleging the district court: (1) erred by denying suppression of evidence, (2) abused its discretion in its discretionary ruling, (3) should have excluded the testimony of a State witness, (4) should not have excluded the testimony of a defense witness, and (5) abused its discretion in denying his motion for a judgment of acquittal and new trial.  OPINION HOLDS: Because the district court neither abused its discretion nor erred, substantial evidence supports the guilty verdicts, and the court used the proper standard in its ruling, we affirm Morris’s convictions for involuntary manslaughter and child endangerment resulting in death.

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  APPEAL DISMISSED.  Heard by Tabor, P.J., Buller, J., and Potterfield, S.J.* Opinion by Buller, J.  (7 pages)

            A former trooper with the Iowa State Patrol appeals from a district court order dismissing his petition for writ of mandamus.  The petition sought, among other things, to compel the Iowa Department of Public Safety and the Peace Officers’ Retirement, Accident, and Disability System to provide him temporary incapacitation benefits under Iowa Code section 80.6(4) (2021).  OPINION HOLDS:  We dismiss the appeal as moot in light of subsequent developments, including the approval of the former trooper’s accidental-disability retirement and the recredit and payment of sick leave.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.  AFFIRMED.  Considered by Greer, P.J., Chicchelly, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            Ryan Devore appeals his conviction for third-degree sexual abuse, claiming his conviction is not supported by sufficient evidence and the district court should have granted him a new trial based on implied juror bias.  OPINION HOLDS: Devore’s conviction is supported by sufficient evidence, and the district court correctly denied his motion for new trial.

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Heard by Tabor, P.J., Buller, J., and Potterfield, S.J.  Opinion by Tabor, P.J.  (10 pages)

            Keyon Roby appeals his conviction for first-degree murder, arguing the State didn’t prove he acted with malice aforethought, premeditation, and specific intent to kill.  And because premeditated murder was one of the State’s two theories, and the jury delivered a general verdict, he argues his conviction must be reversed.  According to Roby, Iowa Code section 814.28 (2019), which directs us to affirm on any supported theory, is unconstitutional.  OPINION HOLDS: We find substantial evidence to support the murder conviction on the premeditation theory.  Because both theories are supported, we need not address the constitutional claim.  We affirm.

            Appeal from the Iowa District Court for Scott County, Meghan Corbin, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Ahlers, P.J., Badding, J., and Doyle, S.J.  Opinion by Ahlers, P.J.  (8 pages)

            Steven Fuhlman appeals his sentence following a guilty plea.  He argues (1) he received ineffective assistance of counsel, (2) the district court abused its discretion by considering an improper factor in sentencing him, and (3) the district court abused its discretion by failing to adequately explain the reasons for his sentence.  OPINION HOLDS: We do not have jurisdiction to hear Fuhlman’s ineffective-assistance-of-counsel claim, and Fuhlman has failed to meet his burden of showing that the district court considered an improper factor.  But because the district court failed to provide a sufficient statement of reasons supporting Fuhlman’s sentence, we vacate the sentence and remand for resentencing.

            Appeal from the Iowa District Court for Webster County, John R. Flynn, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (12 pages)

            The State charged Paul Peterson with seven counts of third-degree sexual abuse and five counts of incest after he admitted to having sexual contact with his daughter.  After a bench trial, the district court found Peterson guilty on all but two counts.  Peterson appeals his conviction for assault with intent to commit sexual abuse and his overall sentence.  OPINION HOLDS: Because the district court properly entered judgment on the lesser- included offense and did not abuse its discretion in sentencing, we affirm.