December 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Buchanan County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (24 pages)

            Michelle Kehoe appeals from the denial of her application for postconviction relief (PCR), following her 2009 convictions for murder in the first degree, attempted murder, and child endangerment resulting in serious injury.  Kehoe argues she received ineffective assistance from trial counsel when counsel failed to 1) move to suppress the incriminating statements she made to police while in the hospital without first receiving Miranda warnings, 2) secure a different, more remote change of venue, and 3) raise the issue of Kehoe’s competency to stand trial.  In her supplemental pro se brief, Kehoe joins some of the arguments made by counsel and also lists a number of errors she believes the PCR court made in its ruling.  OPINION HOLDS: Because Kehoe has not proved any of her claims of ineffective assistance have merit, we affirm the denial of her application for PCR.  As for her pro se claims, she makes no cognizable legal claims and her supplemental pro se brief fails to comport with the appellate rules of procedure; we do not consider any of those issues.

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

            Joshua Cory appeals his conviction, following a guilty plea, of possession of methamphetamine with intent to deliver and the sentence imposed.  OPINION HOLDS: We affirm Cory’s conviction and sentence. 

            Appeal from the Iowa District Court for Mills County, James S. Heckerman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  Special concurrence by Tabor, P.J. (11 pages)

            Chad Wilson appeals his convictions, following a jury trial, of one count of sexual abuse in the third degree, two counts of lascivious acts with a child, and two counts of indecent contact with a child.  He also challenges the sentences imposed.  He argues (1) the court abused its discretion in denying his motions for a mistrial and new trial upon complaints about the presentation of prior-bad-acts evidence; (2) his trial counsel rendered ineffective assistance in failing to object to a jury instruction; (3) his stipulation to a prior conviction for sentencing-enhancement purposes was not entered knowingly and voluntarily; (4) the provision in the sentencing order requiring him to pay court costs, including attorney fees, fails to conform with the oral pronouncement of sentence or, alternatively, was improperly ordered without a determination of his reasonable ability to pay; and (5) the court’s entry of a lifetime sentencing no-contact order was illegal.  OPINION HOLDS: We affirm Wilson’s guilty verdicts but reverse the district court’s findings in support of the enhancements under sections 901A.2(1) and 902.14 and remand for further proceedings under Iowa Rule of Criminal Procedure 2.19(9).  Having reversed the prior-conviction findings, we likewise vacate the sentences imposed and the court’s written sentencing order.  Having vacated the sentences imposed and the court’s written sentencing order, we find it unnecessary to address Wilson’s restitution challenge.  Because we have vacated the sentences and the sentencing order, the no-contact order included in the sentencing order is likewise vacated.  For protection of the victim, we direct the previously issued temporary no-contact order be reinstated.  After further proceedings on remand and upon resentencing, the court may enter a no-contact order.  SPECIAL CONCURRENCE ASSERTS: I would preserve the claim of ineffective assistance of counsel for failing to object to the jury instruction equating out-of-court admissions by a party opponent with in-court testimony.  As I discussed in two previous dissents, I believe this instruction is flawed and misleads the jurors. 

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (2 pages)           

            Dmarithe Culbreath appeals the sentences imposed following his guilty pleas in two criminal cases and his stipulation to probation violations in two other criminal cases.  OPINION HOLDS: We affirm the sentences imposed but preserve Culbreath’s due process claims for postconviction relief.

           Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)           

            Untril Overstreet appeals multiple criminal convictions stemming from a traffic stop.  He raises two arguments on appeal: (1) the district court abused its discretion in denying his request to continue trial for the purpose of filing a motion to suppress and (2) his attorneys rendered ineffective assistance in failing to move for suppression of evidence obtained following the stop on the basis that the stop was pretextual and therefore in violation of article I, section 8 of the Iowa Constitution.  OPINION HOLDS: We conclude the district court did not abuse its discretion in denying Overstreet’s motion to continue and Overstreet’s attorneys were not ineffective as alleged.  We affirm Overstreet’s convictions.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Bower, C.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J.  (15 pages)

            Terry Daniels challenges the denial of his application for postconviction relief, following his 2014 convictions for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver and failure to possess a drug tax stamp.  As he did before the PCR court, Daniels claims he received ineffective assistance from trial counsel when counsel failed to 1) object to incomplete jury instructions on aiding and abetting and 2) challenge the two amendments to the trial information.  Daniels also claims he received ineffective assistance from his direct appeal counsel, maintaining counsel should have challenged the district court’s ruling there was sufficient evidence to include Latasha Daniels as a co-conspirator in the marshalling instruction.  In his pro se brief, Daniels joins the arguments made by counsel and also argues 1) trial counsel was ineffective for allowing him to waive his right to be tried within one year after the one-year deadline had already passed, 2) there was insufficient evidence to support the alternative theories presented to the jury, and 3) the verdict against him was not unanimous.  OPINION HOLDS: Because trial counsel breached an essential duty in failing to object to incomplete jury instructions and Daniels was prejudiced by it, we reverse his conviction for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver.  We remand for new trial.

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (14 pages)

            Fontae Buelow appeals his conviction for second-degree murder.  At trial, Buelow claimed the decedent committed suicide.  He argues the district court erred by excluding evidence concerning the decedent’s mental health.  OPINION HOLDS: The district court erred by improperly excluding evidence supportive of Buelow’s suicide defense.  The error was not harmless.  So we must reverse and remand.

            Appeal from the Iowa District Court for Appanoose County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (3 pages)

            Cliff Lowe appeals his conviction of third-offense possession of a controlled substance, as a habitual offender, claiming his counsel rendered ineffective assistance in failing to move for suppression of evidence obtained following an allegedly illegal pretextual stop and subsequent inventory search of a vehicle in which he was a passenger.  OPINION HOLDS: We find counsel was under no duty to pursue the meritless arguments and Lowe was not prejudiced.  We affirm Lowe’s conviction.

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Gary Dean Terry appeals his judgment and sentence for domestic abuse assault with intent to inflict serious injury, arguing that the evidence was insufficient to support the jury’s finding of guilt and his trial attorney was ineffective in failing to move for new trial on the ground the finding was against the weight of the evidence.  OPINION HOLDS: Because a reasonable juror could have found Terry committed an act that was meant to cause pain or injury and he intended to cause a serious bodily injury, and because we are not convinced there is a reasonable probability the district court would have granted a motion for a new trial, we affirm.

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Lynne Gillen appeals the restitution ordered following her guilty plea to operating a motor vehicle while intoxicated, first offense, arguing the district court erred in ordering her to pay restitution at the time of sentencing.  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–63 (Iowa 2019), we vacate the restitution part of the sentencing order and remand the case to the district court.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J. (9 pages)

            Frank Nucaro appeals the denial of his application for postconviction relief.  OPINION HOLDS: We find Nucaro has failed to establish the requisite prejudice on his claims.  We affirm.

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (16 pages)

            Nationwide Agribusiness Insurance Company (Nationwide) appeals the district court’s decision denying its motion for a new trial in this action for contribution from PGI International (PGI), Dalton Ag Products, Inc. (Dalton Ag), and CNH Corporation.  OPINION HOLDS: We conclude (1) the district court did not abuse its discretion in determining evidence of an OSHA violation by FCC was relevant to the issue of FCC’s negligence; (2) Nationwide has not preserved error on its claims concerning other similar incidents because it did not make an offer of proof; (3) the district court did not err in granting a directed verdict to Dalton Ag on Nationwide’s design defect claim; (4) the district court did not err in granting a directed verdict to PGI on Nationwide’s claim of breach of an implied warranty of fitness for a particular purpose; and (5) the district court did not err by including the Shaws on the special verdict form.  We affirm the decision of the district court.