February 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Mitchell County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Richard King appeals the entry of a domestic abuse protective order pursuant to Iowa Code section 236.5 (2017).  He contends the district court erred in finding by a preponderance of the evidence he committed domestic abuse assault against his wife, June King.  He also contends the district court erred in granting June exclusive possession of the marital home and ordering him to relinquish his firearms.  OPINION HOLDS: On de novo review, we conclude the preponderance of evidence in the record supported the finding Richard committed domestic abuse assault against June, warranting a chapter 236 protective order.  We further find the equities in the case pointed toward granting the marital home to June exclusively.  Finally, as the subject of a chapter 236 protective order, it is unlawful for Richard to possess firearms.  We affirm the court’s findings and ordered provisions. 

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (21 pages)

            Dresean Barber appeals his convictions to one count of second-degree murder and one count of assault with intent to inflict serious injury.  Barber challenges the district court’s denial of his request to present a defense based upon a statute amended after he was arrested and charged.  He also challenges the court’s denial of his motion for mistrial or alternatively its refusal to voir dire the jury after a mass shooting occurred in Las Vegas during jury deliberations.  Barber further contends the court abused its discretion in failing to clear the jury’s confusion on malice aforethought.  Barber also claims the prosecutor’s questioning during cross-examination constituted prosecutorial misconduct.  Lastly, Barber contends the jury’s verdicts were not supported by substantial evidence.  OPINION HOLDS:  The 2017 amendments to the justification defense at issue in this case were prospective, not retrospective, as the statutes were expressly made retrospective and were substantive in nature.  As such, Barber was not entitled to argue or have the court instruct the jury based upon the amendments to the Iowa Code.  Barber was still allowed to assert and argue a justification defense as defined by statute prior to the 2017 amendments, and the jury instructions properly informed the jury of the law on justification in effect at the time of the shooting.  We find the district court did not abuse its discretion in refusing to poll the jury or grant a mistrial based upon the Las Vegas shooting.  The district court also did not abuse its discretion when responding to the jury’s question with directions to reread the instructions.  We find no prosecutorial misconduct.  Finally, we find the verdicts are supported by substantial evidence.

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Brandon Reed appeals his convictions and sentence for one count of indecent contact with a child and two counts of third-degree sexual abuse.  He asserts the jury’s guilty verdicts were not supported by sufficient evidence.  Additionally, he raises multiple ineffective-assistance-of-counsel claims.  OPINION HOLDS: We conclude sufficient evidence supports all the verdicts and counsel was not ineffective by failing to object to a jury instruction allowing the jury to consider out-of-court statements made by Reed as if they were made at trial.  Additionally, we preserve the other three issues of ineffective assistance of counsel for possible postconviction relief.

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Dallas Forkner appeals his convictions on two counts of possession of methamphetamine with intent to deliver, second offense.  OPINION HOLDS:  We find Forkner failed to preserve error because he did not object to the statement in the presentence investigation report concerning risk assessments at the sentencing hearing.  We affirm his convictions.

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (23 pages)

            Kevin Muehlenthaler appeals his convictions of three counts of sexual exploitation by a school employee.  Muehlenthaler contends his trial counsel was ineffective in failing to object to: (1) the State’s misstatement to the jury about Muehlenthaler’s plea; (2) testimony about Muehlenthaler’s alleged use of racially insensitive comments; (3) the State’s questions which amounted to backdoor hearsay; (4) expert testimony provided by a non-expert; (5) the State’s violation of its own motion in limine; and (6) the State’s statements on Muehlenthaler’s failure to testify or produce evidence.  Muehlenthaler also claims the trial court erred in admitting into evidence statements he made during a school investigation, in violation of Garrity v. New Jersey, 385 U.S. 493 (1967).  OPINION HOLDS: We find two of Muehlenthaler’s four claims were not impermissible backdoor hearsay therefore defense counsel was not ineffective for failing to object.  We also find the State was entitled to redirect examination of a police detective on DNA evidence and the examination was properly within the scope of the defense’s cross-examination.  Further, to the extent her testimony might be considered expert testimony, it was based on her training and experience and was limited in scope, therefore defense counsel was not ineffective for failing to challenge expert testimony.  We also find the State’s statements did not shift the burden of proof to Muehlenthaler or refer to his decision not to testify, therefore his trial counsel was not ineffective for failing to object.  We preserve the remainder of Muehlenthaler’s claims of ineffective assistance of counsel as we find the record inadequate to address the issues.  We find no Garrity violation.

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Robert B. Hanson, and Heather L. Lauber, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Kristen Harriman appeals her convictions for second-degree theft and third-degree theft claiming counsel was ineffective for permitting her to plead guilty without a sufficient factual basis.  OPINION HOLDS: We find sufficient factual basis existed for Harriman’s Alford pleas and counsel did not provide ineffective assistance.

            Appeal from the Iowa District Court for Davis County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J. (13 pages)

            Andrew Wulf appeals his convictions for ongoing criminal conduct and two counts of second-degree theft.  OPINION HOLDS:  We find there is sufficient evidence in the record to support Wulf’s convictions.  Wulf did not preserve error on his hearsay claims.  We determine he has not shown he received ineffective assistance on his claims defense counsel should have further challenged the sufficiency of the evidence or objected to alleged hearsay evidence.  We preserve for possible postconviction relief two other claims of ineffective assistance.  We affirm Wulf’s convictions.

            Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Vogel, C.J.  (5 pages)

            Aaron Cavalier appeals from the district court’s order modifying physical care of K.C., his child with Kalli Cavalier, now known as Kalli Terrell.  He argues the district court abused its discretion by denying his motion to continue and it should not have changed physical care of K.C. to Kalli.  Kalli requests appellate attorney fees.  OPINION HOLDS: We find no abuse of discretion and we decline to interfere with the modification or award attorney fees.

            Appeal from the Iowa District Court for Scott County, Patrick McElyea, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Ross Curtis appeals the district court order denying his petition to modify his spousal support obligation of $1000.00 per month to his former wife, Cynthia.  He asserts there has been a substantial change in circumstances and he is no longer able to pay the spousal support due to a change in his employment and his “greatly reduced” income.  OPINION HOLDS: Ross has not shown a substantial change in circumstances.  Deferring to the credibility determinations of the district court, we find his earning capacity has not been reduced so as to constitute a substantial change in circumstances.  In the meantime, Cynthia’s earning capacity has diminished with her medical condition.  We affirm. 

            Appeal from the Iowa District Court for Van Buren County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A father appeals the decree establishing physical care, custody, and support of his child.  OPINION HOLDS: We affirm the district court’s decree, finding the court’s well-reasoned ruling to be equitable and in the child’s best interest.

            Appeal from the Iowa District Court for Delaware County, Monica Zrinyi Wittig, Judge.  REVERSED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

Dean William Dempster III appeals the modification of his victim restitution order, raising claims of improper jurisdiction and res judicata.  OPINION HOLDS: We reverse the order granting the application to amend the original order.  The effect of our opinion in this appeal, together with our opinion in the prior appeal, is to render the July 12, 2016 order the final pronouncement on the offset of payments against Dempster’s restitution obligation.

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Doyle, J.  (6 pages)

            Shpresa Thaqi-Cornish appeals the child-custody provisions of the decree dissolving her marriage to Richard Cornish and the district court’s award of trial attorney fees.  OPINION HOLDS: Although the parties have difficulties with their cooperation and communication, they are able to work together for the child’s benefit.  Because the evidence shows the child is doing well under a joint-physical-care arrangement and granting one parent physical care would be contrary to the child’s best interests, we affirm the joint-physical-care arrangement.  We find the district court did not abuse its discretion in awarding Shpresa only $1000 of her trial attorney fees, and we decline to award either party appellate attorney fees.