June 2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (5 pages)

            Safet Velic appeals his convictions for burglary and domestic abuse assault causing bodily injury.  Velic contends the district court should have excluded some testimony from the trial as hearsay.  OPINION HOLDS: We find the testimony was properly admitted under the excited-utterance exception to the rule against hearsay and affirm.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Roger Cheshire appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  We conclude Cheshire has not shown he was prejudiced by defense counsel’s performance.  We find the district court properly rejected Cheshire’s claim of ineffective assistance of defense counsel.  We do not address Cheshire’s claim of ineffective assistance of postconviction counsel.

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers and Gregory G. Milani, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Larry Clabaugh owns residential property in Ottumwa.  The city alleges he used that property to store junk motor vehicles—violating zoning ordinances.  At trial, the district court denied Clabaugh’s last minute motion for continuance and advised Clabaugh that the court would enter a default judgment if he left the courtroom.  Clabaugh left trial despite the court’s remarks.  He now appeals the court’s denial of a continuance and entry of default judgment.  OPINION HOLDS: The record does not support Clabaugh’s contention that the continuance was necessary to prevent injustice.  And the city had a right to timely enforcement of its ordinances.  And, because both parties agreed that Clabaugh was a vital witness, defense counsel anticipated his client faced default if he left the courtroom.  The district court properly entered default under Iowa Rule of Civil Procedure 1.971(3).  

            Appeal from the Iowa District Court for Black Hawk County, Joel E. Dalrymple, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J. (8 pages)

            Michael Wedgwood appeals his conviction and sentence for assault on a peace officer and interference with official acts resulting in bodily injury.  OPINION HOLDS: The district court did not err in submitting jury instructions without language on justification because the record contains no basis to conclude Michael used reasonable force in response to the officers’ actions.  However, the court did not evaluate Michael’s reasonable ability to pay before ordering restitution.  We affirm his convictions, vacate the restitution order, and remand for resentencing.

            Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            Appellants appeal an order granting summary judgment in a quite-title action.  OPINION HOLDS: We affirm the order granting summary judgment in favor of the appellees. 

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J. (10 pages)

            Keyshaun Jones appeals his conviction for perjury, asserting the district court erred in admitting hearsay evidence and his trial counsel was ineffective in failing to object to impermissible vouching testimony from a police witness.  OPINION HOLDS: Because the evidence fits the hearsay exception for statements against interest, the court did not err.  We also find the disputed testimony was permissible because it did not vouch for a witness at trial and did not comment on credibility.  Rather, it described how Jones’s deposition testimony contradicted facts from the police investigation and Jones’s previous statements to police.  Thus, we affirm. 

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (28 pages)

            Tristin Alderman appeals from his convictions of first-degree murder, first-degree robbery, and conspiracy to commit first-degree burglary.  Alderman (1) maintains the trial court abused its discretion in twice granting the motion to continue of Alderman’s co-defendant; (2) contests several evidentiary rulings of the court; (3) challenges the sufficiency of the evidence supporting his convictions; (4) argues the court impermissibly sentenced him to consecutive terms of incarceration and considered improper factors when doing so; and (5) challenges the portion of the court’s sentencing order requiring Alderman to pay attorney fees and court costs as part of restitution.  OPINION HOLDS: Finding no reversible error, we affirm Alderman’s convictions.  We vacate the portions of the sentencing order requiring Alderman to pay court costs and attorney fees and remand for determination of Alderman’s reasonable ability to pay, but we otherwise affirm Alderman’s sentences.

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J. (7 pages)

            Timothy Fontenot appeals his convictions on two counts of indecent contact with a child, claiming the district court erred in admitting hearsay evidence contained in a video of a forensic interview of his victim.  OPINION HOLDS: We conclude the bulk of the forensic interview video was properly admitted as non-hearsay prior consistent statements and Fontenot suffered no prejudice from the admission of the inconsistent statements contained in the video of the interview.  As such, we affirm Fontenot’s dual convictions of indecent contact with a child. 

            Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            Thomas Bibler appeals his conviction for second-degree murder.  He claims his involuntary intoxication provides him a complete defense to the crime.  OPINION HOLDS: Iowa Code section 701.5 (2016) defining the intoxication defense does not differentiate between voluntary or involuntary intoxication.  And section 701.5 only negates specific intent; it does not provide a complete defense.

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            Dawarn Lamar Moncrief appeals his convictions for possession with intent to deliver methamphetamine, possession of contraband, and failure to possess a tax stamp.  His appeal is based solely on a claim of ineffective assistance of his trial counsel for failing to take pre-trial depositions of the State’s witnesses and failing to sufficiently cross-examine the State’s witnesses at trial.  OPINION HOLDS: We find the record inadequate to address these ineffective-assistance-of-counsel claims on direct appeal.  We preserve them for possible postconviction-relief proceedings and affirm the convictions.

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            Christopher Holton appeals his conviction and sentence for operating while under the influence, third offense.  Holton contends the district court erred in not sentencing him in accordance with the plea agreement or affording him a chance to withdraw his plea.  Holton also claims his counsel provided ineffective assistance.  OPINION HOLDS: We find the court failed to either sentence Holton as provided in the plea agreement or reject the agreement and provide him the opportunity to withdraw from the plea.  We reverse and remand for further proceedings.

            Appeal from the Iowa District Court for Winneshiek County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (9 pages)

            Linda Hovden appeals from a district court order denying her relief related to the purchase of her home.  She appeals the district court’s decisions related to alleged violations of Iowa Code chapter 558A (2017) and trial attorney fees.  Dwaine and Cheryl Lemke (Lemkes) request attorney fees on appeal.  OPINION HOLDS: On our review, we find substantial evidence supported the findings of the district court.  We affirm the dismissal of Hovden’s claims the Lemkes violated chapter 558A.  Because we affirm the district court’s decision on the merits, we also affirm its decision to deny Hovden’s claim for trial attorney fees.  We deny the Lemkes’ request for appellate attorney fees.