2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (6 pages)

            Stephen Embree appeals his conviction of sexual abuse in the second degree.  He argues there was no sexual purpose to his contact with the child.  The State argues sufficient evidence was presented to the jury regarding Embree’s sexual purpose.  OPINION HOLDS: On our review of the record, sufficient evidence was presented to support Embree’s conviction. 

            Appeal from the Iowa District Court for Polk County, Celine Gogerty, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (17 pages)

            Emilio Serrano challenges several aspects of the decree dissolving his marriage to Trisha Peckosh.  He contests the grant of sole legal custody and physical care of their four children to Trisha.  Emilio also claims the district court should not have ordered him to pay child or spousal support.  And he contends the court failed to do equity in dividing the marital assets and in awarding attorney fees to Trisha.  OPINION HOLDS: Because the evidence demonstrates, the parties cannot be civil in making basic decisions, and Trisha’s established ability to care for the children, we affirm the award of custody to Trisha.  Next, because joint physical care is not appropriate, and Emilio is overwhelmed by supervising all four children at the same time, physical care of the children should remain with Trisha.  Also, because it is proper for the court to consider the therapist’s recommendation and the provision highlighted by Emilio contramands In re Marriage of Stephens, 810 N.W.2d 523, 531 n.3 (Iowa Ct. App. 2012), we remand for modification of the decree to strike the language making visitation contingent on the opinion of the therapist.  Next, because the district court properly used the child support guidelines in setting Emilio’s obligations, we affirm the child support order.  Also, because rehabilitative alimony achieves equity between the parties, we affirm the rehabilitative alimony for ten years.  Next, because we find the better mechanism to secure Emilio’s future performance is to impose a judicial or equitable lien on his real property, we remand for this modification of the decree.  Next, because find no error in the court’s valuations and we defer to the district court’s finding Emilio hid or depleted marital assets, we find the distribution of assets and debts to be equitable to both parties.  Also, because Emilio has greater ability to pay reasonable attorney fees, we affirm Trisha’s attorney fees claim.  Last, because of the disparity in incomes, as well as Trisha’s success in defending the major issues raised in Emilio’s appeal, we remand with instruction for the district court to determine a reasonable amount for the attorney fees on appeal.

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Carr, S.J.  Opinion by Greer, J. (5 pages)

            Calvon Miles appeals from his convictions for willful injury causing bodily injury and carrying weapons.  Miles contends he received ineffective assistance from trial counsel when counsel failed to object to the marshalling instruction for willful injury causing bodily injury, which did not include all of the necessary elements.  OPINION HOLDS: Under these facts, Miles cannot establish he was prejudiced by counsel’s failure to object to the instruction.  Therefore, we affirm his convictions.  

            Appeal from the Iowa District Court for Polk County, Sarah E. Crane, Judge.  AFFIRMED.  Considered by Doyle, P.J., Schumacher, J., and Mahan, S.J.  Opinion by Schumacher, J.  (15 pages)

            Randy Hofer appeals from convictions and a restitution order that arose as a result of his unauthorized taking of a concrete mixing truck and the events that followed.  He argues the evidence is insufficient to support two of his convictions.  He also claims the trial court erred by refusing to give a jury instruction he requested and he takes issue with the court’s restitution award to the city of Des Moines.  OPINION HOLDS: The evidence is sufficient to support Hofer’s convictions for criminal mischief in the first degree and operating without owner’s consent, and it was not error for the district court to refuse to give the requested jury instruction.  The convictions are therefore affirmed.  We also affirm the restitution order, as we determine the restitution award to the city of Des Moines was supported by evidence in the record, was well within a reasonable range of the evidence, and was within the district court’s discretion.

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            A mother appeals the court order terminating her parental rights to a child pursuant to Iowa Code section 600A.8(9) (2018).  She contends termination was not appropriate under section 600A.8(9) and was not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

            Appeal from the Iowa District Court for Polk County, Richard B. Clogg, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  Dissent by Tabor, P.J.  (17 pages)

            James Brice appeals his conviction of indecent exposure.  He challenges the sufficiency of the evidence supporting his conviction and argues his trial counsel was ineffective in various respects.  OPINION HOLDS: We conclude Brice’s conviction is supported by substantial evidence and counsel was not ineffective as alleged.  We affirm Brice’s conviction of indecent exposure.  DISSENT ASSERTS: I would find substantial evidence does not support the verdict because the State did not produce sufficient evidence to satisfy the offensiveness element of the indecent exposure charge.

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (7 pages)

            Bree Wright pled guilty to third-degree sexual abuse.  On direct appeal, Wright contends that his trial counsel was ineffective in allowing him to plead guilty.  He claims his plea was not voluntary because he was not informed by the plea court of an element of the offense.  He also claims the record lacks a factual basis for the plea.  OPINION HOLDS: Because the record is insufficient to allow us to resolve Wright’s voluntariness claim, we preserve it for postconviction relief for a full development.  Because the record shows a factual basis for his plea, Wright has failed to establish his counsel was ineffective in this regard.

            Appeal from the Iowa District Court for Montgomery County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Growth Unlimited, an Iowa corporation marketing “skill-based amusement” games, challenges the result of its lawsuit against a Nebraska retailer that it installed one its machines.  Growth Unlimited first contests the district court’s treatment of future damages.  OPINION HOLDS: Because Growth Unlimited did not preserve that issue, we decline to reach it.  Growth Unlimited next challenges the attorney fee award.  Finding no abuse of discretion, we affirm the district court’s award.

            Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (17 pages)

            Following a global resolution of a number of criminal offenses, Dustin Gilliam appeals from the district court’s sentencing order.  OPINION HOLDS: By granting a motion to amend a trial information in one of Gilliam’s cases, the district court consolidated multiple charges that arose from the same occurrence of criminal conduct.  We therefore reject Gilliam’s claim that he suffered prejudice by the court’s amendment of the trial information in the consolidated case.  We reject Gilliam’s ineffective-assistance-of-counsel claims.  We disagree with his contention that there was an insufficient factual basis to support two of his misdemeanor convictions, and we find Gilliam cannot prove he was prejudiced by his counsel’s conduct with respect to the remaining ineffective-assistance claim.  The convictions are affirmed.

            Appeal from the Iowa District Court for Humboldt County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Alan Pedersen appeals the district court’s judgment on an open-account claim in favor of ZT Enterprises, Inc (ZT).  On appeal, Pedersen contends (1) the court’s findings were not supported by substantial evidence and (2) the district court abused its discretion in admitting an exhibit that may not have been provided in discovery.  OPINION HOLDS: We conclude the district court did not err in granting ZT judgment for $50,031.95, and we affirm the district court’s ruling on the exhibit.

            Appeal from the Iowa District Court for Poweshiek County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (23 pages)

            The State charged Roy Doorenbos with one count of sexual abuse in the third degree and two counts of assault with intent to commit sexual abuse.  A jury acquitted him on the sexual abuse count but convicted him of assault with intent and the lesser-included offense of simple-misdemeanor assault.  He appeals the two convictions, alleging inconsistent verdicts.  He also contends his trial was unfair because the court did not permit him to view his accuser’s mental-health records, declined to strike two jurors for cause, and granted the State’s motion to amend the dates in the trial information.  Finally, Doorenbos asks to be resentenced.  OPINION HOLDS: Because it was possible for Doorenbos to commit two assaults on two different days, but not commit sexual abuse on a later date, the jury’s verdicts were not inconsistent.  Next, the court properly denied his request for access to M.A.’s therapy records.  And the court properly declined to strike two jurors for cause.  Also, we find no error in the amendment of the trial information.  Last, because we discern no reliance on improper factors, the district court did not abuse its discretion in sentencing Doorenbos.

            Appeal from the Iowa District Court for Harrison County, Craig M. Dreismeier, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  Dissent by Greer, J.  (10 pages)

            Desirea Tritz appeals from a ruling denying her application to modify child custody.  She contends there has been a material change of circumstances warranting a change to the shared-cared arrangement currently in place for the child she shares with Jameson Landon.  OPINION HOLDS: After our de novo review of the record, we agree with the trial court’s conclusion there has been no showing of a material change of circumstances such as would allow the modification of child custody.  DISSENT ASSERTS:  I respectfully dissent.  I believe the mother has shown a material change in circumstances.  For that reason, I would reverse the district court order and grant physical care to the mother.