February 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Russell Gentry Jr. appeals his convictions for possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and driving while barred.  OPINION HOLDS:  We conclude an officer’s observations, both by visual estimation and pacing, support a rational inference Gentry was exceeding the speed limit and this gave the officer probable cause to stop the vehicle.  We affirm the district court’s decision denying Gentry’s motion to suppress.

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  CONVICTION VACATED AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            Robert Hampton appeals his conviction and sentence for possession of methamphetamine.  He challenges the constitutionality of various portions of his traffic stop.  OPINION HOLDS: The traffic stop violated Hampton’s constitutional rights.  Hampton consented to a weapons search, but the search went beyond the scope of a weapons search when the deputy manipulated the contents of Hampton’s pocket and removed an item.  The district court erred in denying a motion to suppress.

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Ambus Davis appeals the dismissal of his second application for postconviction relief as time barred.  OPINION HOLDS: The district court did not err in summarily dismissing Davis’s second application for postconviction relief.

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Tabor, P.J., Bower, J., and Carr, S.J.  Opinion by Bower, J.  (13 pages)

            Russell Carter appeals the district court decision on his petition for declaratory judgment finding Iowa Code section 483A.24 (2016) is not unconstitutional.  OPINION HOLDS:  We find Carter, as a nonresident landowner, does not have an inalienable right to hunt antlered deer on his property and the statute does not violate his equal protection rights.  We affirm the district court.

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (11 pages)

            Naima Cerwick appeals the denial of her petition for judicial review.  OPINION HOLDS: Substantial evidence supports the finding that Cerwick provided an inconsistent history of the fall and resulting injury.  Although a trier of fact might conclude the evolution of Cerwick’s explanation of her fall and injuries was a result of communication difficulties, our task on appeal is not to determine whether the evidence supports a different finding; our task is to determine whether substantial evidence supports the finding actually made.  The arbitration decision sets forth a detailed recitation of the evidence and the weight the deputy afforded it.  Cerwick’s claim that the deputy ignored evidence is unsupported; rather, the weight the deputy afforded the evidence and the conclusions the deputy drew conflicts with Cerwick’s view of the evidence.  Because substantial evidence supports the agency decision, we affirm the district court’s denial of Cerwick’s petition for judicial review.

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (22 pages)

            Lime Lounge, LLC, and Thunder & Lightning, Inc. appeal the dismissal of their petition for certiorari issued by the district court in Lime Lounge’s challenge to the revocation of the conditional use permit (CUP) issued by the Zoning Board of Adjustment of the City of Des Moines (Board).  Lime Lounge raises numerous contentions that the Board’s revocation of its CUP was procedurally flawed and illegal and that the district court’s review was in error.  OPINION HOLDS: We have considered each of Lime Lounge’s contentions and find them either without merit or not properly raised.  We affirm.

            Appeal from the Iowa District Court for Crawford County, Jeffrey A. Neary, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A mother appeals from a modification order granting physical care of her two children to their father.  The mother contends the court put too much weight on geography in her move a ninety-minute drive from where the children have grown up.  She also contends the court put too little emphasis on which parent would be the better caregiver.  The father cross-appeals, asserting the mother’s mid-week overnight visit is too taxing on the children.  OPINION HOLDS: The district court appropriately determined which setting is better for the parties who no longer live within a short distance of each other.  We see no reason to disturb the physical and visitation provisions of the modification rulings.  We affirm on both appeals. 

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (2 pages)

            Centrel Handy appeals his conviction for possession of a firearm by a felon, claiming his trial attorney was ineffective.  OPINION HOLDS: We affirm Handy’s judgment and sentence without prejudice to his right to raise his ineffective-assistance-of-counsel claim in a postconviction-relief application.

            Appeal from the Iowa District Court for Jones County, Russell Keast, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  Special Concurrence by McDonald, J.  (7 pages)

            Roy Tompkins appeals the judgment and sentence entered following his plea to one count of operating while intoxicated, second offense.  OPINION HOLDS: Because the statutory provisions requiring substance abuse evaluation, treatment, and a course for drinking drivers is a collateral consequence of Tompkins’s plea, the court’s failure to inform Tompkins of the requirement did not affect the knowing and voluntary nature of his plea, and his counsel did not breach an essential duty in failing to correct the omission.  The record is insufficient to allow us to determine whether counsel’s failure to correct the court’s omission of the maximum possible fine prejudiced Tompkins.  Therefore, we preserve this claim of ineffective assistance for a postconviction proceeding.  SPECIAL CONCURRENCE ASSERTS: I concur in the judgment.  In State v. Carney, 584 N.W.2d 907, 909 (Iowa 1998), the supreme court held license revocation is a collateral consequence of a guilty plea to OWI and the district court had no duty to inform the defendant of the consequence prior to taking the plea.  Carney has since been undermined by State v. Fisher, 877 N.W.2d 676 (Iowa 2016).  In Fisher, the supreme court held that “[b]ecause revocation of the driver’s license of a person convicted of a drug possession offense is mandatory, immediate, and part of the punishment for that offense, the court must inform the defendant of this consequence before accepting his or her plea.”  877 N.W.2d at 683.  The Fisher court distinguished Carney on the ground Fisher involved “revocation of a driver’s license as a mandatory consequence of a drug possession conviction.”  Id. (emphasis in original).  The proposed distinction is immaterial, and the cases are not reconcilable.  Nonetheless, Fisher and Carney remain good law.  I thus concur in the judgment. 

            Appeal from the Iowa District Court for Emmet County, Carl J. Petersen, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (12 pages)

            Jim Henricksen appeals from the district court ruling ordering him to pay unpaid child support and daycare expenses.  Jim contends the district court erred in vacating its prior ruling.  Alternatively, Jim contends he did not receive notice of the amount of alleged arrearages, and thus the court should not have concluded he was barred from contesting the computation of arrearages and interest or from presenting defenses.  Jim contends the court should have applied the law of Oklahoma in computing the amount of arrearages and accrual of interest.  OPINION HOLDS: We conclude Jim’s appeal of the order vacating the previous ruling is timely but without merit.  However, because Jim did not receive notice of the amount of alleged arrearages now claimed by his ex-wife, we conclude it was improper to exclude Jim’s arguments and defenses regarding the actual amount owing.  We reverse and remand so the district court can consider the viability of Jim’s defenses and determine the actual amount owing according to Oklahoma law. 

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (11 pages)

            Jeff Lee Altmayer appeals his convictions for kidnapping in the first degree, sexual abuse in the second degree, and two counts of enticing a child.  He argues his trial counsel was ineffective for failing to object to a jury instruction regarding his out-of-court statements, and the court abused its discretion in admitting other-acts evidence and erred in submitting a jury instruction regarding the complaining witness.  OPINION HOLDS: We find both instructions correctly state the law and did not result in prejudice and the other-acts evidence was proper for proving identity.  Therefore, we affirm.

            Appeal from the Iowa District Court for Franklin County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (10 pages)

            Karen De Groote appeals the district court’s ruling removing her as trustee of her father’s trust and ordering her to pay part of the attorney’s fees of the beneficiaries that filed the petition.  OPINION HOLDS: Because good cause existed to remove Karen as the trustee, and because the court did not abuse its discretion in ordering Karen to pay part of the petitioners-beneficiaries’ attorney fees, we affirm the ruling of the district court in all respects.