March 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Bradley M. McCall, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (12 pages)

            Devaris Perry appeals from his convictions for attempted murder, intimidation with a dangerous weapon with intent, and reckless use of a firearm resulting in property damage.  With the assistance of counsel, Perry argues the district court abused its discretion in failing to exclude a State witness for whom there was inadequate notice, there was insufficient evidence to support his conviction for attempted murder, the weight of the evidence is contrary to each of the three guilty verdicts, and trial counsel provided ineffective assistance by failing to file a motion to suppress Perry’s involuntary confession.  Additionally, in a supplemental pro se brief, Perry reiterates some of the arguments made by counsel and also maintains there was no corroboration of accomplice testimony and his trial counsel was ineffective when he inadequately impeached a witness for the State.  OPINION HOLDS:  Substantial evidence supports Perry’s convictions—even if Stogner was an accomplice.  Additionally, we cannot say the district court abused its discretion when it denied Perry’s motion to exclude Stogner as a witness or when it denied Perry’s motion for new trial based on the weight of the evidence.  Thus, we affirm Perry’s convictions.  We preserve for possible postconviction relief his claims of ineffective assistance.  

            Appeal from the Iowa District Court for Poweshiek County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (2 pages)

            Seth Torbensen appeals from the sentence imposed upon his plea of guilty, contending the district court abused its discretion in considering improper factors.  OPINION HOLDS: Torbensen made no objection to the presentence investigation report and cannot now complain the court considered matters therein.  We affirm.   

            Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (14 pages)

            Cedric Whitmire appeals his convictions for sexual abuse in the third degree, pimping, willful injury causing bodily injury, domestic abuse assault by strangulation causing bodily injury, and possession of marijuana.  OPINION HOLDS: Upon our review, we affirm.

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Potterfield, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (12 pages)

            The plaintiff in a third-party action for indemnity appeals the grant of summary judgment in favor of the third-party defendants, arguing the district court erred in finding their claim was time-barred under the stock purchase agreement.  The third-party defendants cross-appeal the denial of their application for attorney fees.  OPINION HOLDS: The unambiguous language of the contract evidences the intent of the parties that the Gaddises would indemnify CEI for claims from the accrual of the products liability cause of action until the running of the applicable statute of limitations.  Therefore, the district court erred in granting summary judgment to the Gaddises.  We reverse and remand for entry of new orders denying the Gaddises’ motion for summary judgment and granting CEIs as well as any further necessary proceedings.  We affirm the denial of the Gaddises’ request for attorney fees. 

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott and Julie Schumacher, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Benjamin DeJesus-Cruz appeals his convictions for manufacture, delivery, or possession of methamphetamine with intent to deliver and operating while intoxicated.  OPINION HOLDS: Counsel may have breached an essential duty in failing to make a separate argument concerning the impoundment and search of his vehicle under the state constitution’s prohibition against unreasonable searches and seizures.  No Iowa cases had foreclosed the argument counsel failed to make, and case law from other jurisdictions supported the position.  We preserve this claim for postconviction relief to allow full development of the record regarding counsel’s decision-making and any prejudice to DeJesus-Cruz. 

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Gamble, S.J., takes no part.  Opinion by Mahan, S.J.  (15 pages)

            Jean Beloved appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: Because Beloved cannot establish prejudice from any of the alleged breaches in trial counsel’s conduct, we affirm.

            Appeal from the Iowa District Court for Monona County, Duane E. Hoffmeyer, Judge.  APPEAL DISMISSED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            Lori Mathes appeals an order dismissing her criminal charges but requiring her to reimburse the State for her court-appointed attorney fees.  OPINION HOLDS: Because Mathes does not have the right of appeal from an order dismissing the criminal charge against her and she does not claim the district court acted beyond its authority, we dismiss her appeal.

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell and Robert B. Hanson, Judges.  REVERSED AND REMANDED.  Heard by Tabor, P.J., Bower, J., and Mahan, S.J.  Per Curiam Opinion.  (33 pages)

            A defendant appeals her convictions for theft by deception and tampering with a witness.  She raises several contentions.  OPINION HOLDS: The verdicts were supported by sufficient evidence.  But the district court abused its discretion in admitting an irrelevant employee handbook that contained a broad and misleading definition of theft.  We reverse the judgment and remand for a new trial without the irrelevant evidence.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: The State did not show substantial evidence to support the amount stolen was sufficient for first-degree theft, only second-degree theft.  I would remand for retrial only on second-degree theft by deception. 

            Appeal from the Iowa District Court for Scott County, John D. Telleen and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            Quayshan Moore appeals following a jury trial that resulted in convictions for possession of crack cocaine with intent to deliver, failure to affix a drug tax stamp, possession of a firearm by a domestic violence offender, carrying weapons, interference with official acts, and assault causing bodily injury.  Moore challenges the sentences imposed and claims trial counsel was ineffective in stipulating that he was a prohibited person and in failing to challenge the sufficiency of the evidence of his intent to deliver cocaine.  OPINION HOLDS: The court stated adequate reasons for imposing consecutive sentences.  The record is not sufficient to address his ineffectiveness claim as to the stipulation.  Because there is substantial evidence from which the jury could find an intent to deliver, Moore cannot show he was prejudiced by counsel’s failure to challenge evidence of intent.

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Mary DeHaai seeks reversal of the district court decision dismissing her quiet-title claim against the City of Monroe and denial of her motion for leave to amend.  OPINION HOLDS: We affirm the district court’s decision.

            Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (10 pages)

            The plaintiffs, Tim Kruse and Russell Bries, who do business as Kruse “N” Bries Contruction, were hired by Don and Molly Krumwiede to build and finish the Krumwiede’s new home.  The plaintiffs filed suit against the Krumwiedes for breach of contract and promissory estoppel or unjust enrichment, maintaining they performed construction services pursuant to written and verbal contracts and the Krumwiedes failed to compensate them fully.  The district court denied the plaintiffs’ claim, finding they failed to prove their case.  On appeal, the plaintiffs claim the district court “was incorrect in the conclusions of law necessary for plaintiffs to establish their cause of action.”  OPINION HOLDS: Because Kruse and Bries did not meet their burden to prove the Krumwiedes breached the contract, and because a claim of breach of implied contract cannot coexist with a claimed breach of express contract on the same subject matter, we affirm the district court’s denial of the plaintiffs’ suit.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED SENTENCING ORDER.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (6 pages)

            Cheryl Wanchanic appeals his conviction, following a jury trial, of first-degree robbery and the sentence imposed.  He contends his trial counsel was ineffective in failing to move for a mistrial.  He further challenges the district court’s order assessing appellate attorney fees against him unless he filed a request for a hearing on his reasonable ability to pay.  OPINION HOLDS: We affirm Wanchanic’s conviction but preserve his claim of ineffective assistance of counsel for possible postconviction-relief proceedings.  We affirm his sentence in part, but vacate the portion of the sentencing order requiring Wanchanic to affirmatively request a reasonable-ability-to-pay hearing.  We remand for the entry of a corrected sentencing order.