April 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Buchanan County, Joel Dalrymple, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (14 pages)

            A defendant appeals the district court’s denial of his motion for new trial in this negligence action.  He seeks a new trial on the basis of basis of (1) testimonial references to an insurance company, (2) the court’s classification of certain witnesses as experts, (3) witness testimony regarding the reasonableness of Jerry’s conduct, (4) the court’s refusal to permit certain testimony, and (5) the theories of negligence presented to the jury.  The plaintiff cross-appeals, seeking interest on the jury award to begin on the date of the negligent conduct.  OPINION HOLDS: References to an insurance company did not violate Iowa Rule of Evidence 5.411 or a ruling on a motion in limine because no reference implied the defendant was insured or referred to liability insurance.  The expert witnesses were properly classified as such due to their extensive experience.  Witness testimony did not opine to a legal conclusion.  Testimony regarding the conduct of an observer was properly excluded as irrelevant.  The theories of negligence submitted to the jury were sufficiently supported by the evidence presented.  The district court did not err in denying the motion for new trial.  Because the damage to the property was complete on the day of the negligent conduct, statutory interest should begin accruing from the date of the negligent act, and the district court erred in denying the plaintiff’s motion for interest to accrue from the date of the negligent act.

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Potterfield, P.J.  (4 pages)

            Michael Roach appeals the summary dismissal of his fourth application for postconviction relief (PCR) challenging his 2004 convictions for murder in the second degree and robbery in the first degree.  Roach maintains the 2017 “stand your ground” law is to be applied retroactively, and he asks us to remand for a determination of whether the new law applies to the facts of his case.  OPINION HOLDS: The new law is a substantive change, which we do not apply retroactively.  Thus, Roach’s PCR application is untimely, and we affirm the summary dismissal of it.

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, District Associate Judge.  CONVICTIONS AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J. (17 pages)

            Anthony Gomez appeals his convictions of (1) third-degree sexual abuse, (2) willful injury causing bodily injury, (3) domestic abuse assault causing bodily injury by impeding breathing or circulation, (4) domestic abuse assault causing bodily injury or mental illness, and (5) third-degree theft.  He also challenges the imposition of consecutive sentences on counts one and two.  Specifically, he argues (1) his counsel rendered ineffective assistance in failing to (a) request definitional jury instructions in relation to the willful-injury charge and the two domestic-abuse-assault charges and (b) object to hearsay testimony relative to the theft charge; (2) the evidence was insufficient to support all charges; and (3) the court improperly failed to provide reasons for imposing consecutive sentences.  OPINION HOLDS: We find defense counsel rendered ineffective assistance in failing to request a definitional jury instruction relative to the final element of each of the domestic-abuse-assault charges.  As such, we vacate the sentences and reverse judgment and conviction on counts three and four and remand for a new trial on those charges.  We find Gomez was not prejudiced by counsel’s failures to request a jury instruction defining serious injury in relation to the willful-injury charge or object to alleged hearsay evidence in relation to the theft charge.  We reject Gomez’s claim of cumulative error.  We find the evidence sufficient to support Gomez’s convictions of third-degree sexual abuse, willful injury causing bodily injury, and third-degree theft.  We find the record is insufficient to allow appellate review of the district court’s discretionary action in imposing consecutive sentences on counts one and two.  As such, we vacate only the portion of the sentencing order imposing consecutive sentences, and we remand the matter to the district court.  On remand, the district court should determine whether the sentences should run consecutively or concurrently and provide reasons for its decision.  Finally, having found Gomez’s ineffective-assistance argument concerning the weight of the evidence insufficient to facilitate our review, we preserve that claim for postconviction-relief proceedings.  

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J. (4 pages)

            Larry Gross appeals the district court decision requiring him to pay a room and board reimbursement fee for time he spent in jail.  OPINION HOLDS:  We conclude the district court did not err in approving the Polk County Sheriff’s application for reimbursement without making a finding Gross had a reasonable ability to pay.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Shelby Vogt appeals the district court’s dismissal of his petition in a landlord-tenant dispute.  OPINION HOLDS: Vogt did not name as a defendant the corporate owner of the apartment building and did not file a motion to amend the petition.  We affirm the district court’s decision granting the motion to dismiss.

            Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Scott, S.J.  Opinion by Doyle, P.J.  (7 pages)

            D.C. appeals from the dispositional orders placing him in the custody of Juvenile Court Services for placement in residential treatment foster care.  OPINION HOLDS: Because we hold placing D.C. in the custody of Juvenile Court Services for placement in residential treatment foster care was proper and the least restrictive alternative, we affirm the decision of the district court. 

            Appeal from the Iowa District Court for Appanoose County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.  Opinion by Vogel, C.J.  (5 pages)

            Kenneth Turner was found guilty of failure to comply with the Iowa Sex Offender Registry requirements.  He now appeals his conviction, arguing the district court erred in denying his motion for new trial.  OPINION HOLDS: We find the district court did not abuse its discretion by denying the motion for new trial and affirm his conviction.

            Appeal from the Iowa District Court for Polk County, Gregory A. Hulse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            James Dawson appeals the district court decision accepting his guilty plea to neglect of a dependent person.  OPINION HOLDS:  We are unable to determine the basis for Dawson’s claim of ineffective assistance of counsel, and we preserve his claim for possible postconviction-relief proceedings.  We affirm his conviction.

            Appeal from the Iowa District Court for Madison County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Vogel, C.J.  (4 pages)

            The father appeals the termination of his parental rights to his child after the mother filed a petition under Iowa Code chapter 600A (2017).  After granting two continuances at the father’s request, the district court denied his third motion to continue, which provided the father was unable to participate in the termination hearing due to his incarceration.  The father now argues his constitutional due process rights were violated because he was unable to participate in the termination hearing by telephone.  OPINION HOLDS: The father failed to preserve error on his constitutional claim because he did not raise such claim below and the district court made no findings on such claim.

            Appeal from the Iowa District Court for Warren County, Randy V. Hefner, Judge, and Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

            Randall Lee Brooks appeals his conviction for driving while barred as a habitual offender.  OPINION HOLDS: The district court properly excluded evidence that amounted to a collateral attack on the Iowa Department of Transportation’s action barring his license as a habitual offender.  Because Brooks failed to establish a good and compelling cause to continue trial, the district court acted within its discretion in refusing his request for a continuance.  Brooks failed to preserve error on his claim that his right to be present at trial was violated.  We preserve his claim of ineffective assistance of counsel for postconviction relief to allow the record to be developed.  Finding no error on the claims properly presented on appeal, we reject Brooks’s claim that he should be granted a new trial based on the cumulative effect of the errors alleged.

            Appeal from the Iowa District Court for Clay County, David A. Lester, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Doyle, P.J.  (5 pages)

            Jesse Blair appeals the order establishing paternity, custody, and visitation of the child he shares with Trish Scott, now known as Trish Weimar.  OPINION HOLDS: Although the evidence could support granting physical care to either parent, we concur with the district court’s assessment that Trish should be granted physical care based on her historical role as the child’s caretaker and because doing so will allow the child to grow up with her half-sister. 

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (2 pages)

            Amanda Dreier appeals sentence following her plea of guilty to conspiracy to commit the felony of sexual exploitation by a school employee.  On appeal, Dreier contends the court stated it was without authority to grant a deferred judgment unless a defendant requested it and asks that we remand this case for resentencing with a directive to the district court that no request by the defendant is required.  OPINION HOLDS:  The sentence imposed was in accordance with the plea agreement wherein Dreier specifically agreed she could not request nor accept a deferred judgment.  We affirm.