December 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Potterfield, J.  (18 pages)

            Defendant Eric Parmenter appeals from the judgment and sentence imposed following his conviction on two counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).   On appeal, Parmenter argues (1) the State’s abandonment of the charged timeframe for both counts deprived him of his due process rights; (2) the State committed prosecutorial misconduct by telling the jury to ignore the dates of the alleged incidents specified in the jury instructions; (3) Parmenter’s right to a fair trial was violated when the district court admitted the testimony of a non-sequestered rebuttal witness; and (4) the verdict was contrary to the weight of the evidence.  OPINION HOLDS: Parmenter’s prosecutorial misconduct, fair trial, and weight of the evidence claims were preserved; his due process claim related to the prosecutor’s statement during closing arguments was not.  Parmenter has not shown the prosecutor committed misconduct by arguing the dates listed in the jury instructions were irrelevant during rebuttal argument.  We cannot say the district court’s admission of the rebuttal witness’s testimony was clearly untenable.  Because the district court failed to exercise its discretion when weighing the evidence, we reverse and remand this case to the district court for proceedings consistent with this opinion.

            Appeal from the Iowa District Court for Page County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Jessalyn Brockman appeals the child custody provisions of the decree dissolving her marriage to Matthew Brockman.  OPINION HOLDS: Like the district court, we find that awarding Matthew physical care is in the child’s best interests.  We affirm the custody provisions of the dissolution decree and the district court’s decision to deny an award of trial attorney fees.  We decline to award Jessalyn her attorney fees on appeal. 

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (22 pages)

            Wildor Juste appeals his conviction of sexual abuse in the second degree.  Juste argues the district court erred in (1) admitting testimony alleged to have improperly vouched for the complaining witness, (2) admitting hearsay statements alleged to bolster out-of-court statements made by the complaining witness, (3) submitting a jury instruction naming a date range in which the alleged abuse took place, (4) denying access to department of human services records relied upon by testifying witnesses, and (5) admitting employment records and related testimony over hearsay objections.  OPINION HOLDS: We affirm Juste’s conviction. 

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

            Lane is serving two indeterminate, consecutive twenty-five year prison terms on his convictions for sexual abuse in the second degree and burglary in the first degree.  Lane contends that the guarantee of assistance of counsel should be set to a higher standard and his trial counsel was remiss in numerous ways.  He also claims his sentence is cruel-and-unusual punishment.  OPINION HOLDS: Our court is without authority to reach the merits of Lane’s novel legal approach to set a higher standard for assistance of counsel.  In addition, we find that counsel did not breach his duty with respect to his assistance in legal counseling.  Finally, we do not find Lane’s argument satisfies the threshold test to show that his sentence constituted cruel-and-unusual punishment.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman and David P. Odekirk, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J. (9 pages)

            Jeremy Rutter appeals his conviction and sentence for two counts of possession with intent to deliver and one drug tax stamp violation.  Rutter argues a warrantless search of the master bedroom of his home was unconstitutional under the federal and state constitutions.  OPINION HOLDS: We conclude the warrantless search of the bedroom was based on voluntary consent and the district court properly denied Rutter’s motion to suppress. 

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (3 pages)

            Karen Doren appeals from the summary dismissal of her application for postconviction relief (PCR).  OPINION HOLDS: The PCR court correctly dismissed Doren’s PCR application because she filed beyond the statute of limitations and no exception applied.

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., Tabor, J., and Vogel, S.J.  Opinion by Tabor, J.  Dissent by Vogel, S.J.  (14 pages)

            Troy Ford appeals his conviction for third-offense possession of marijuana asserting the district court erred in denying his motion to suppress.  A police officer mistakenly arrested Ford based on an outstanding warrant for a different individual with the same name.  Ford contends the arrest was invalid so the search incident to arrest revealing the marijuana was unconstitutional and the district court should have suppressed it.  OPINION HOLDS: Because the officer did not act reasonably in searching Ford before verifying his identity as the person with the warrant, we reverse the suppression ruling and remand for further proceedings consistent with this opinion.  DISSENT ASSERTS: Because I believe the district court properly denied Ford’s motion to suppress based on the arresting officer reasonably matching Ford with the outstanding warrants, I would affirm his conviction and sentence.

            Appeal from the Iowa District Court for Woodbury County, Jeffery L. Poulson and Zachary Hindman, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            N.P. appeals the district court’s findings of serious mental impairment, alleging her procedural due process rights were violated.  She raises two procedural due process issues: (1) an ex parte communication denied her a fair and impartial hearing and (2) the applicant’s attorney was prohibited from being present and participating at the hearings.  OPINION HOLDS: N.P.’s due process rights were not violated.  So reversal is not warranted.

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell and David May, Judges.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  May, J., takes no part.  Opinion by Doyle, P.J. (12 pages)

            Jhamond McMullen appeals his convictions, sentences, and judgment following a bench trial and verdict finding him guilty of several drug-related offenses.  OPINION HOLDS:  Upon our review, we vacate and remand the district court’s sentencing order for changes consistent with the opinion, and we affirm in all other respects.

            Appeal from the Iowa District Court for Carroll County, Gary McMinimee, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            Joshua Shirbroun appeals the denial of his motion to set aside a default decree.  OPINION HOLDS: None of the factors weigh in favor of setting aside the default judgment.  Consequently, we find no abuse of discretion in the district court’s refusal to do so and affirm.

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Jeffrey William Carter appeals the order awarding Lilliana Castano Carter attorney fees and costs incurred during the parties’ divorce proceedings.  OPINION HOLDS: The district court properly exercised its discretion in determining the attorney fee award, and we decline to disturb it on appeal.  We remand to the district court to determine a reasonable award of Lilliana’s appellate attorney fees.

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt and Carol L. Coppola, District Associate Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (7 pages)

            Alexander Bertrand appeals his conviction for operating while intoxicated (OWI), first offense, challenging the denial of his motion to suppress.  He maintains his constitutional right to be free from unreasonable searches and seizures was violated because there was no probable cause or reasonable suspicion for the traffic stop.  OPINION HOLDS: On our de novo review of the facts here, we find there was reasonable suspicion justifying the traffic stop.  The district associate court properly overruled Bertrand’s motion to suppress.  We affirm Bertrand’s conviction for first-offense OWI.