Skip to main content
Iowa Judicial Branch
Main Content

2018 Archive | Most Recent Court of Appeals Summaries

For summaries from opinions prior to August, 2018, view PDF versions here

Opinion Summaries

Case No. 16-1489:  State of Iowa v. Joe Anthony Lopez

Filed Dec 19, 2018

View Opinion No. 16-1489

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (30 pages)

            Joe Lopez appeals his conviction for first-degree murder.  Lopez claims insufficient evidence supports his conviction, the district court should have admitted evidence of his willingness to take a polygraph, the district court should have excluded the medical examiner’s manner-of-death testimony, the prosecutor committed error by mischaracterizing expert testimony in closing arguments, and counsel was ineffective for failing to object to prior-bad-acts evidence and failing to request or object to the omission of a jury instruction defining reasonable degree of medical certainty.  OPINION HOLDS: We find Lopez’s conviction supported by sufficient evidence.  Further, the district court did not abuse its discretion in excluding evidence of Lopez’s willingness to take a polygraph, nor in admitting Dr. Schmunk’s manner-of-death testimony.  Lopez failed to demonstrate he was prejudiced by the prosecutor’s statements.  And finally, concerning Lopez’s ineffective-assistance claims, we preserve his prior-bad-acts claim for postconviction relief and find no breach of duty for counsel’s lack of request or objection to the omission of an instruction defining reasonable degree of medical certainty.

Case No. 17-0690:  State of Iowa v. Dustin Dean Devries

Filed Dec 19, 2018

View Opinion No. 17-0690

            Appeal from the Iowa District Court for Chickasaw County, Kellyann M. Lekar and Richard D. Stochl, Judges.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.  Opinion by Mahan, S.J.  Dissent by Danilson, C.J.  (8 pages)

            Dustin Devries appeals his convictions for theft in the second degree and absence from custody, claiming the district court erred in denying his motion to suppress evidence found on his property during a warrantless search.  OPINION HOLDS: Upon our review, we affirm the district court’s denial of Devries’ motion to suppress.  DISSENT ASSERTS: I respectfully dissent from the determination of the majority that the officers were in a place they were legally entitled to be.  Without a valid premise of legal entitlement, the warrant cannot stand.   

Case No. 17-0877:  Justin Willis Swan v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-0877

            Appeal from the Iowa District Court for Dubuque County, Monica Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (11 pages)

            Justin Swan appeals the dismissal of his application for postconviction relief.  OPINION HOLDS:  We find the trial court substantially complied with Iowa Code section 822.7 (2010), Swan’s mandatory minimum sentence does not amount to cruel and unusual punishment, and Swan’s claims of ineffective assistance of counsel fail.

Case No. 17-1194:  State of Iowa v. Marvin Lee Heggebo

Filed Dec 19, 2018

View Opinion No. 17-1194

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (14 pages)

            Marvin Heggebo appeals from his conviction and sentence for second-degree sexual abuse following jury trial.  Heggebo contends the trial court erred in admitting statements the child witness made to her mother and in admitting the video recording of the child’s interview at the Child Protection Center.  OPINION HOLDS: Because we conclude the statements and video were properly admitted, we affirm.

Case No. 17-1369:  State of Iowa v. Todd Junior Landis

Filed Dec 19, 2018

View Opinion No. 17-1369

            Appeal from the Iowa District Court for Polk County, David N. May and Donna L. Paulsen, Judges.  CONVICTIONS AFFIRMED; SENTENCING ORDER VACATED IN PART AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Todd Landis challenges his convictions for operating while intoxicated (OWI) and possession of a controlled substance arguing the drug evidence should have been excluded when police searched his pocket thirty minutes before arresting him for the OWI.  He contends this search was not substantially contemporaneous with his arrest.  He also challenges the rationale given for his sentence and the sentence imposing court costs on a dismissed simple misdemeanor charge.  OPINION HOLDS: The evidence would have been admissible under the inevitable-discovery doctrine.  The court gave sufficient individualized rationale to explain the sentencing decision.  But the district court should not have imposed court costs from a dismissed charge in the sentencing order.  We vacate that part of the order and remand for entry of a corrected order.  We affirm defendant’s convictions. 

Case No. 17-1417:  State of Iowa v. Glenn Robert Webster

Filed Dec 19, 2018

View Opinion No. 17-1417

            Appeal from the Iowa District Court for Polk County, David May and Robert J. Blink, Judges.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Glenn Webster appeals his convictions of two drug-related crimes, contending the district court erred in denying his motions to dismiss and for judgment of acquittal.  OPINION HOLDS: We affirm the denial of the motion to dismiss on the ground urged by the State below, that the motion was untimely.  We find the evidence sufficient to establish the challenged elements of the possession-with-intent-to-deliver charge beyond a reasonable doubt.  We affirm Webster’s convictions. 

Case No. 17-1426:  State of Iowa v. Dennis Edgar Chamberlain

Filed Dec 19, 2018

View Opinion No. 17-1426

            Appeal from the Iowa District Court for Buchanan County, Joel Dalrymple, Judge.  AFFIRMED IN PART; REVERSED IN PART AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  Special Concurrence by Potterfield, P.J.  (23 pages)

            Dennis Chamberlain appeals his convictions, sentences, and judgments for attempt to commit murder, kidnapping in the second degree, and two counts of intimidation with a dangerous weapon with intent.  He challenges the district court’s jury instructions regarding intoxication, reasonable doubt, and the definition of “confinement,” as well as the extension of the no-contact order for a period longer than five years.  OPINION HOLDS: We affirm Chamberlain’s convictions for attempt to commit murder and two counts of intimidation with a dangerous weapon with intent.  We reverse his conviction for kidnapping in the second degree and remand for retrial.  We also reverse a provision of the extension of the no-contact order and remand for correction.  SPECIAL CONCURRENCE ASSERTS: I disagree with the majority’s conclusion there was insufficient evidence to submit Chamberlain’s proposed instruction on the defense of intoxication.  The majority fails to make the distinction between the requisite amount of evidence necessary to determine whether a trial court should submit an affirmative defense to the jury and the amount of evidence necessary to prove the defense. However, the evidence of Chamberlain’s ability to form specific intent was overwhelming, and I cannot find Chamberlain suffered prejudice from the court’s failure to instruct on Chamberlain’s defense to the intent elements of those crimes.

Case No. 17-1605:  Michael Scott Weiss v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1605

            Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (6 pages)

            Michael Weiss appeals the denial of his application for postconviction relief.  OPINION HOLDS: Weiss has failed to prove prejudice, and his ineffectiveness claim thus fails. 

Case No. 17-1619:  State of Iowa v. Clarence D. Blanchard

Filed Dec 19, 2018

View Opinion No. 17-1619

            Appeal from the Iowa District Court for Emmet County, Ann M. Gales, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (5 pages)

            Following a conviction for operating while intoxicated, first offense, Clarence Blanchard appeals the district court’s denial of his motion to suppress.  Blanchard argues there was neither a reasonable articulable suspicion nor probable cause to support the police officer’s investigatory stop of his vehicle.  OPINION HOLDS: Considering the totality of the circumstances, Deputy Bauler’s recognition of the smell of marijuana emanating from Blanchard’s vehicle provides a reasonable suspicion of criminal activity to stop the vehicle approximately twenty minutes later.  We affirm the district court’s denial of Blanchard’s motion to suppress.

Case No. 17-1621:  Michael Lamont Black v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1621

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

            Michael Lamont Black appeals the district court’s denial of his application for postconviction relief (PCR).  He claims his trial counsel’s erroneous advice compelled him to plead guilty.  OPINION HOLDS: Black has not shown his plea counsel misinformed him about his plea.  Therefore, he has not proven his counsel breached an essential duty, and we affirm the district court’s denial of his PCR application.

Case No. 17-1680:  Undray Jermaine Reed v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1680

           Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (5 pages)

            Undray Jermaine Reed appeals the district court’s denial of his application for postconviction relief (PCR).  He claims his trial counsel was ineffective by not objecting to the prosecutor’s questioning on cross-examination of Reed’s prior criminal convictions of theft, burglary, and a “felony.”  OPINION HOLDS: Reed did not prove the district court would have excluded evidence of the felony if his counsel had objected, and use of the felony for impeachment did not result in prejudice.  Additionally, Iowa has long recognized theft and burglary are crimes of dishonesty and admissible for impeachment.

Case No. 17-1697:  State of Iowa v. Dale Robert Tournier

Filed Dec 19, 2018

View Opinion No. 17-1697

            Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge.  CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART AND VACATED IN PART AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Dale Robert Tournier appeals his conviction and sentence for second degree sex abuse of a child under twelve, raising claims of district court abuse of discretion and fee imposition error.  OPINION HOLDS: We discern no abuse of discretion in the district court’s denial of a new trial and refusal to vacate the judgment and take new testimony.  We conclude the court’s failure to specify the amount of the jail fee was an abuse of discretion.  We vacate the portion of the sentence imposing an obligation to pay the jail fees and remand for a determination of Tournier’s ability to pay a specified amount.  We affirm the balance of the sentence.

Case No. 17-1702:  Jason Kensett v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1702

            Appeal from the Iowa District Court for Henry County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            Jason Kensett appeals the dismissal of his application for postconviction relief.  OPINION HOLDS:  Because Kensett cannot demonstrate his trial counsel’s alleged conflict of interest had an adverse effect on counsel’s performance, he is not entitled to relief.  The district court did not err in dismissing Kensett’s application for postconviction relief.

Case No. 17-1703:  Thomas Kane v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1703

            Appeal from the Iowa District Court for Pottawattamie County, Susan Christensen, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (3 pages)

            Thomas Kane appeals the district court’s denial of his application for postconviction relief (PCR).  He claims the district court erroneously determined his application is time-barred.  OPINION HOLDS: Kane does not present a new ground of law to overcome the three-year statute of limitations for filing a PCR application.  We therefore affirm the district court without further opinion.

Case No. 17-1816:  State of Iowa v. George James Jackson

Filed Dec 19, 2018

View Opinion No. 17-1816

            Appeal from the Iowa District Court for Story County, James A. McGlynn (plea), James C. Ellefson (sentencing), and Adria Kester (nunc pro tunc order), Judges.  CONVICTIONS AFFIRMED; NUNC PRO TUNC ORDER VACATED; AND REMANDED FOR ENTRY OF A CORRECTED SENTENCING ORDER.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            George Jackson appeals his guilty-plea convictions of three crimes and a post-judgment nunc pro tunc order.  He contends (1) his counsel rendered ineffective assistance in failing to challenge his guilty pleas on voluntariness grounds by way of a motion in arrest of judgment and (2) the court erred in modifying his sentence by way of a nunc pro tunc order to additionally require he complete a batterer’s treatment program.  OPINION HOLDS: Upon our de novo review, we find Jackson’s pleas were entered knowingly and intelligently, and therefore voluntarily; consequently, we find counsel’s failure to file a motion in arrest of judgment was neither a breach of an essential duty or prejudicial.  The original sentence imposed for domestic-abuse assault was illegal, and the nunc pro tunc order had no legal effect on the illegal sentence.  We therefore vacate that portion of the sentence imposed by the nunc pro tunc order and remand for entry of a corrected sentencing order, which adds the requirement that Jackson participate in a batterers’ treatment program as part of his sentence for his conviction of domestic-abuse assault, and otherwise includes all provisions in the original sentencing order.

Case No. 17-1821:  Larry Dean Bell, Sr. v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1821

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (4 pages)

            Larry Bell Sr. appeals the denial of his application for postconviction relief.  He contends his trial counsel was ineffective in allowing him to plead guilty despite the State’s contradiction of the release-recommendation terms of the plea agreement.  OPINION HOLDS:  We approve the district court’s findings and ruling on the breach-of-duty prong of Bell’s claim and affirm the denial of his application on that ground pursuant to Iowa Court Rule 21.26(1)(d).  In the alternative, we find Bell has failed to prove any prejudice as a result of any alleged breach of duty by counsel.

Case No. 17-1868:  Jeffery Wheeldon v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 17-1868

            Appeal from the Iowa District Court for Pottawattamie County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Jeffery Wheeldon appeals from the denial of his application for postconviction relief (PCR).  He maintains the PCR court should have found his application falls within an exception to the three-year statute of limitations because he was incompetent at the time of his plea and the three years following.  OPINION HOLDS: Substantial evidence supports the PCR court’s finding that Wheeldon was mentally competent at the time he entered his guilty pleas, and Wheeldon has not established he was incompetent for the three years that followed.  Thus, because Wheeldon could have timely raised his claims, his application does not meet an exception to the three-year statute of limitations.  We affirm the dismissal of Wheeldon’s PCR application.

Case No. 17-1887:  State of Iowa v. Misty Kaye Spooner

Filed Dec 19, 2018

View Opinion No. 17-1887

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (3 pages)

            The defendant appeals from a conviction for assault causing bodily injury asserting her trial counsel was ineffective in cross-examining a key witness.  OPINION HOLDS: The record is inadequate to address the defendant’s claims.  We preserve the claim for postconviction-relief proceedings where trial counsel can explain their strategy and the defendant can develop evidence as to prejudice.  We affirm the conviction. 

Case No. 17-1927:  State of Iowa v. Samella Simone Bailey

Filed Dec 19, 2018

View Opinion No. 17-1927

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer and David P. Odekirk, Judges.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Samella Simone Bailey appeals her conviction of delivering or possessing with the intent to deliver a simulated controlled substance (more than forty grams of simulated cocaine base) as a second offender, contending (1) the district court erred in denying her motion to dismiss and (2) the sentence was illegal.  OPINION HOLDS: Upon our review, we affirm Bailey’s conviction, judgment, and sentence.

Case No. 17-1962:  State of Iowa v. Sonya L. Stark

Filed Dec 19, 2018

View Opinion No. 17-1962

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (7 pages)

            Sonya Stark appeals her conviction and sentence for the crime of theft in the third degree.  Stark argues the district court applied the wrong standard when ruling on her motion for a new trial.  Also, she argues there was insufficient evidence in the record to support a conviction of theft in the third degree.  OPINION HOLDS: We find the district court did not apply the wrong standard when ruling on the motion for a new trial.  In addition, we find there was sufficient evidence to support a finding of theft in the third degree.

Case No. 17-1973:  In re the Marriage of Barry

Filed Dec 19, 2018

View Opinion No. 17-1973

            Appeal from the Iowa District Court for Harrison County, Gregory W. Steensland, Judge.  AFFIRMED AS MODIFIED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Chad Barry appeals the district court’s denial of his petition to modify the custodial and physical care provisions of his dissolution decree.  He also challenges the court’s dismissal of his applications for rule to show cause, alleging his former wife, Kathleen, willfully violated the terms of the decree.  Finally, he challenges the court order that he pay certain expenses.  OPINION HOLDS: Because there was no material or substantial change in circumstances warranting modification, the district court did not err in declining the petition for modification.  Chad failed to prove beyond a reasonable doubt that Kathleen willfully violated the terms of their dissolution decree.  The district court properly required Chad to pay certain pre-dissolution debts in accordance with the terms of the decree.  However, the court erred in ordering Chad pay one half of the children’s medical bills when Kathleen did not show she provided him notice of the amounts due within fifteen days of receipt of the amount due as required by the decree.  Chad’s payment obligation is reduced accordingly.

Case No. 17-2029:  In re the Marriage of Bliek

Filed Dec 19, 2018

View Opinion No. 17-2029

            Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.  REVERSED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Daniel Bliek appeals from the district court’s order granting Lori Bliek’s petition to modify the spousal support provision of the parties’ 2013 dissolution decree.  OPINION HOLDS: We conclude Lori failed to establish a substantial change of circumstances not contemplated at the time of the dissolution decree.  Accordingly, we reverse the modification of her spousal support award.  In light of our conclusion, we reverse the award of trial attorney fees and decline Lori’s request for $8303 in appellate attorney fees. 

Case No. 17-2097:  State of Iowa v. Clay Thomas Paulson

Filed Dec 19, 2018

View Opinion No. 17-2097

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

            Clay Thomas Paulson appeals his convictions for possession of a controlled substance, a tax stamp violation, and possession of a prescription drug without a prescription raising claims of insufficient evidence and trial court error in admitting certain hearsay statements.  OPINION HOLDS: We conclude the jury’s findings of guilt on all three crimes were supported by substantial evidence.  We affirm the district court’s evidentiary ruling on the uncontested Iowa Rule of Evidence 5.403 grounds without prejudice to Paulson’s right to raise the hearsay issue in a postconviction relief action. 

Case No. 18-0023:  State of Iowa v. Evan Blake Wooten

Filed Dec 19, 2018

View Opinion No. 18-0023

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Evan Wooten appeals his sentences for attempt to disarm a peace officer of a dangerous weapon and assault on persons engaged in certain occupations.  He requests resentencing alleging: (1) the district court erred in determining attempting to disarm a peace officer of a dangerous weapon is a forcible felony requiring imprisonment, (2) the department of correctional services was not statutorily authorized to include a sentencing recommendation in the presentence investigation report and Wooten’s counsel was ineffective in failing to object to the recommendation’s inclusion, and (3) the sentencing order contained an erroneous provision requiring Wooten to challenge his ability to pay certain restitution rather than requiring the court first make an ability-to-pay determination before imposing restitution.  OPINION HOLDS: Any error relating to the court’s categorization of attempting to disarm a peace officer of a dangerous weapon as a forcible felony was harmless because the sentencing court stated it would impose the same sentence regardless of its determination that attempting to disarm a peace officer of a dangerous weapon amounts to a forcible felony.  We preserve Wooten’s ineffective-assistance claim for further development in future postconviction-relief proceedings.  Finally, we find the sentencing provision requiring Wooten to affirmatively challenge his ability to pay restitution was erroneously included and vacate that portion of the sentencing order.

Case No. 18-0109:  Tristate Adjustments, Inc. v. Janise E. Firman

Filed Dec 19, 2018

View Opinion No. 18-0109

            Appeal from the Iowa District Court for Chickasaw County, Stephanie C. Rattenborg, District Associate Judge.  REVERSED AND REMANDED FOR DISMISSAL.  Considered by Vogel, P.J., McDonald, J., and Blane, S.J.  Opinion by Blane, S.J.  (8 pages)

            On discretionary review, defendant Janise Firman challenges the entry of a small claim judgment against her under Iowa Code § 597.14 (2017).  OPINION HOLDS: Because we find the evidence was not sufficient to establish Janise was married to Dirk at the time he incurred a necessary medical expense, we reverse the judgment and remand for dismissal of the action against Janise. 

Case No. 18-0185:  Maria Borjas and Fermin Gutierrez, Individually, and as parents and next friends of D.G., a Minor v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 18-0185

           Appeal from the Iowa District Court for Johnson County, Andrew B. Chappell, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (5 pages)

           Maria Borjas and Fermin Gutierrez, parents of their minor child D.G., appeal the district court’s grant of summary judgment in a medical malpractice suit.  The parents argue the district court should have denied summary judgment for both the medical-negligence claim and the negligent-infliction-of-emotional-distress claim.  OPINION HOLDS: Because the parents failed to provide expert testimony to support either claim, we agree summary judgment was appropriate and affirm without further opinion.  Iowa Ct. R. 21.26(a), (e).

Case No. 18-0230:  State of Iowa v. Christopher David Vogel

Filed Dec 19, 2018

View Opinion No. 18-0230

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  SENTENCE VACATED IN PART AND REMANDED. Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (5 pages)

            Christopher Vogel appeals from his sentence following his guilty plea to animal abuse, in violation of Iowa Code section 717B.2 (2017), an aggravated misdemeanor.  Vogel contends the sentencing court abused its discretion by considering improper factors in imposing his sentence entered an illegal sentence when it ordered him to pay court costs associated with dismissed charges.  OPINION HOLDS: Because Vogel has not affirmatively shown the court considered improper factors we find no abuse of the court’s sentencing discretion.  However, we vacate the portion of the sentencing order imposing an obligation to pay the costs of dismissed charges and remand for entry of a corrected sentencing order.

Case No. 18-0267:  State of Iowa v. Isaiah Montell Forest

Filed Dec 19, 2018

View Opinion No. 18-0267

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  SENTENCES VACATED IN PART AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            Isaiah Forest appeals his sentences for two counts of second-degree robbery.  He challenges the applicability of the law-enforcement-initiative surcharge provided in Iowa Code section 911.3 (2017) and the district court’s order requiring him to pay court costs and court-appointed attorney fees.  OPINION HOLDS: We vacate the law-enforcement-initiative surcharge provisions of each of Forest’s sentences as the offenses to which Forest pled guilty are not subject to that surcharge.  We also find the district court abused its discretion in entering a restitution plan of payment without first determining the amount of attorney fees and Forest’s reasonable ability to pay.  We therefore vacate the portion ordering restitution for court costs and court-appointed attorney fees.  We remand for a determination of the amount of attorney fees and Forest’s reasonable ability to pay.

Case No. 18-0270:  Drew Matthew Moir v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 18-0270

            Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (7 pages)

            Drew Moir appeals the district court order summarily dismissing his application for postconviction relief (PCR).  OPINION HOLDS: Under the specific facts of Moir’s case, we conclude his letter to the district court could be considered a PCR application that was filed within the time limits provided in Iowa Code section 822.3 (2017).  We therefore reverse the order summarily dismissing Moir’s PCR application and remand to the district court for further proceedings. 

Case No. 18-0302:  In re the Marriage of Teter

Filed Dec 19, 2018

View Opinion No. 18-0302

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  REVERSED IN PART AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Clarence Teter appeals the district court’s ruling on his petition for modification of spousal support.  OPINION HOLDS: We find the district court did not properly classify the spousal support award.  We find the spousal support award can be modified and remand for further proceedings.

Case No. 18-0306:  Jackie Knight v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 18-0306

            Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Knight appeals from the denial of his petition for writ of mandamus and petition for writ of habeas corpus.  OPINION HOLDS: The sentencing order for Knight’s guilty plea for possession of marijuana did not affect his previous conviction for failure to affix a drug tax stamp.  Habeas relief is not available to Knight because he was convicted of a public offense.

Case No. 18-0311:  State of Iowa v. Ramarez M. Gary

Filed Dec 19, 2018

View Opinion No. 18-0311

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Doyle, J.  (3 pages)

            Ramarez Gary appeals his convictions alleging he received ineffective assistance of trial counsel.  OPINION HOLDS: Because we cannot determine whether counsel failed to perform an essential duty and whether Gary was prejudiced, we affirm and preserve any claims of ineffective assistance of counsel for possible postconviction-relief proceedings.

Case No. 18-0320:  In the Matter of C.T., Alleged to Be Seriously Mentally Impaired

Filed Dec 19, 2018

View Opinion No. 18-0320

            Appeal from the Iowa District Court for Lee (North) County, Ty Rogers, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            C.T. disputes a ruling determining him in need of involuntary civil commitment claiming insufficient evidence supports the finding.  OPINION HOLDS: Because we have no recording or transcript of the contested hearing, we are required to affirm the district court’s decision.

Case No. 18-0321:  Zejnudin Abdic v. State of Iowa

Filed Dec 19, 2018

View Opinion No. 18-0321

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (5 pages)

            Zejnudin Abdic appeals the summary dismissal of his application for postconviction relief.  OPINION HOLDS: Because the decision he cites as a new ground of law was filed within three years of the date of his conviction, it cannot qualify as an exception for a new-ground-of-law exception to the limitation period.    

Case No. 18-0366:  State of Iowa v. Noah Anthony Moore

Filed Dec 19, 2018

View Opinion No. 18-0366

            Appeal from the Iowa District Court for Appanoose County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (2 pages)

            A defendant appeals his conviction of delivery of methamphetamine.  OPINION HOLDS: The district court did not abuse its discretion in denying the defendant’s motion for new trial.

Case No. 18-0413:  State of Iowa v. Tiffany Kay Milbrath

Filed Dec 19, 2018

View Opinion No. 18-0413

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  Partial Dissent by Vogel, P.J.  (4 pages)

            Tiffany Milbrath appeals her conviction and sentence for possession of a controlled substance, arguing ineffective assistance of counsel.  OPINION HOLDS: We affirm Milbrath’s judgment and sentence and preserve the ineffective-assistance claim for postconviction relief.  PARTIAL DISSENT ASSERTS: I believe trial counsel had no duty to make sure the reasons Milbrath was not accepted into the drug court program were provided prior to sentencing.  I would therefore deny the ineffective-assistance claim and not preserve the issue for possible postconviction relief.  

Case No. 18-0419:  In re the Marriage of Neils

Filed Dec 19, 2018

View Opinion No. 18-0419

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (12 pages)

            Thomas Neils challenges the economic, child support, and visitation provisions of the decree dissolving his marriage to Carol Neils.  OPINION HOLDS: Upon our de novo review, we find deviation from the child-support guidelines to use Thomas’s earning capacity as determined by the district court was appropriate under the facts of this case.  Additionally, the court’s determination the parties should create a visitation schedule together is proper under the facts of the case.  Finally, the equalization payment as calculated equitably divided the parties’ marital property.  Accordingly, we affirm the district court’s dissolution decree in all respects.

Case No. 18-0523:  State of Iowa v. Chad L. Erwin

Filed Dec 19, 2018

View Opinion No. 18-0523

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.  Opinion by Doyle, J.  (4 pages)

            Chad Erwin appeals his conviction for operating a motor vehicle without the owner’s consent.  OPINION HOLDS: Because Erwin never requested reporting of the individual conference with a potential juror struck for cause or objected to the district court about the lack of reporting, he has failed to preserve his claim for our review.    

Case No. 18-0577:  State of Iowa v. Matthew Gene Spaans

Filed Dec 19, 2018

View Opinion No. 18-0577

            Appeal from the Iowa District Court for Sioux County, Tod J. Deck, Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (9 pages)

            Matthew Spaans appeals his sentence after pleading guilty to four counts of child endangerment.  He contends he received ineffective assistance of counsel when his plea counsel failed to object to the State’s alleged breach of the plea agreement.  He also contends the district court considered improper factors during sentencing and challenges a portion of the sentencing order related to appellate attorney fees.  OPINION HOLDS: Because we conclude the district court relied upon an improper factor during sentencing, we vacate the defendant’s sentences and remand for resentencing.

Case No. 18-0886:  State of Iowa v. Zachary D. Jimerson

Filed Dec 19, 2018

View Opinion No. 18-0886

            Appeal from the Iowa District Court for Delaware County, Stephanie C. Rattenborg, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (2 pages)

            Zachary Jimerson appeals his convictions, following guilty pleas, of two criminal violations.  He argues his counsel was ineffective in failing to adequately review his case prior to advising him to plead guilty.  OPINION HOLDS: We find the record inadequate for us to determine whether counsel failed to perform an essential duty or whether any such failure prejudice Jimerson.  Accordingly, we affirm Jimerson’s convictions but preserve his ineffective-assistance claim for postconviction-relief proceedings to allow for the development of a proper record and to provide counsel an opportunity to weigh in on the matter.

Case No. 18-1212:  In the Interest of M.B., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1212

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            A mother appeals the termination of her parental rights.  The mother does not contest the statutory grounds upon which her rights were terminated but contends termination is not in the child’s best interests and statutory exceptions should be applied to preclude termination.  OPINION HOLDS: We find termination is in the child’s best interests and no permissible exception to termination applies in this case.

Case No. 18-1290:  In the Interest of K.H. and E.H., Minor Children

Filed Dec 19, 2018

View Opinion No. 18-1290

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A father appeals from the termination of his parental rights to two children.  He contends the State did not prove the children could not be returned to his custody and termination was not in the children’s best interests because of their strong attachment to him.  OPINION HOLDS: On our de novo review, we find the father has made little progress in addressing the concerns that initially led to removal of the children.  The father conceded the children could not be returned to his care, but an extension also would be inappropriate.  The children’s best interests are served by termination of the father’s parental rights and likely adoption by the paternal grandparents. 

Case No. 18-1297:  In the Interest of A.V., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1297

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (9 pages)

            A mother appeals the termination of her parental rights to her child.  She contends the State failed to prove the statutory grounds for termination by clear and convincing evidence, termination is not in the best interests of the child, a statutory exception to termination should be applied, and the juvenile court erred in declining her request for additional time to work toward reunification.  OPINION HOLDS: Upon our de novo review, we conclude the State met its burden for termination under Iowa Code section 232.116(1)(h) (2018), termination is in the best interests of the child, the mother failed to meet her burden to warrant the application of the statutory exception contained in section 232.116(3)(c), and an extension of time is unwarranted.  We affirm.  

Case No. 18-1514:  In the Interest of J.C., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1514

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  REVERSED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  Separate Writing by McDonald, J.  Dissent by Vogel, P.J.  (17 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The agency’s failure to notify the father of the child-in-need-of-assistance (CINA) proceedings prevented him from being heard in the CINA action and rendered the proceeding void as to him.  We further conclude an intent to abandon the child was not established.  SEPARATE WRITING ASSERTS: There is insufficient evidence supporting the statutory ground authorizing the termination of the father’s parental rights.  The issue of whether the father received notice of the CINA case is not before this court.  Even if the issue of notice was properly before this court, the father’s lack of notice of the CINA case is immaterial to the termination of the father’s parental rights under Iowa Code section 232.116(1)(b), which does not require the child first be adjudicated in need of assistance as a prerequisite to termination of parental rights.  DISSENT ASSERTS: Iwould affirm the termination of the father’s parental rights in its entirety.  I believe both issues of notice and abandonment were not properly raised and should not provide a basis to reverse on appeal.

Case No. 18-1544:  In the Interest of S.M., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1544

            Appeal from the Iowa District Court for Cass County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: We find the State met its burden to establish the ground for termination under section 232.116(1)(e) (2018) by clear and convincing evidence and termination is in the best interests of the child.

Case No. 18-1708:  In the Interest of C.K., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1708

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (12 pages)

            A father appeals the denial of his motion to modify a dispositional order in child-in-need-of-assistance proceedings.  He contends circumstances have so materially and substantially changed that the best interests of the child require transferring custody from the mother to him.  OPINION HOLDS: Without deciding whether the “material and substantial change” test has been superseded by legislative amendment, and giving due weight to the juvenile court’s determinations of witness credibility, we conclude the father did not show evidence meeting that test.  We further find it is in the child’s best interests to remain in his mother’s custody.  Therefore, we affirm. 

Case No. 18-1756:  In the Interest of D.C., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1756

            Appeal from the Iowa District Court for Scott County, Mark Fowler, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (4 pages)

                The mother appeals the permanency order, which transferred guardianship and custody of her child, D.C., to the child’s maternal grandparents.  First, she argues the district court failed to account for the progress she has made.  Second, she argues the Iowa Department of Human Services has failed to make reasonable efforts toward reunification.  OPINION HOLDS: We find the permanency order was appropriate and affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (d), and (e).

Case No. 18-1759:  In the Interest of K.S., P.S., and N.J., Minor Children

Filed Dec 19, 2018

View Opinion No. 18-1759

            Appeal from the Iowa District Court for Adair County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            A mother appeals the termination of her parental rights in her three children.  OPINION HOLDS: The evidence supports the statutory grounds authorizing termination of the mother’s parental rights.  The mother failed to preserve error on the issue of whether the State made sufficient efforts toward reunification.  The termination is in the best interests of the children.

Case No. 18-1767:  In the Interest of S.W., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1767

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (8 pages)

            The father and mother separately appeal the termination of their parental rights to S.W., born in July 2015.  The father argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(h) (2018).  Both argue the district court should have granted a six-month extension and should have found termination was not in S.W.’s best interests.  OPINION HOLDS: We find the State proved by clear and convincing evidence the grounds for termination of the father’s parental rights.  Additionally, we find an additional six months would not extinguish the need for removal.  Finally, termination is in S.W.’s best interests and any bond between the parents and child does not preclude termination.

Case No. 18-1769:  In the Interest of V.J., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1769

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            A mother appeals from a decision terminating her parental rights to her minor child, contending (1) the State failed to prove the grounds for termination cited by the juvenile court, (2) termination was not in the child’s best interests, and (3) her rights should not have been terminated given the closeness of the parent-child bond.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 18-1770:  In the Interest of L.C., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1770

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (5 pages)

            The mother and father separately appeal the termination of their parental rights.  The parents both argue the State has not established the grounds for termination by clear and convincing evidence, termination is not in the best interests of the child, and the district court should have granted an extension of time.  OPINION HOLDS: We find grounds for termination have been proved, termination is in the best interests of the child, and an extension of time would not have extinguished the need for removal.  We therefore affirm the termination of both parents’ parental rights.

Case No. 18-1771:  In the Interest of D.M., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1771

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (7 pages)

            The juvenile court terminated the mother’s parental rights to D.M.—born in October 2016—pursuant to Iowa Code section 232.116(1)(g) and (h) (2018).  On appeal, the mother maintains there is not clear and convincing evidence to support the statutory grounds for termination and termination of her parental rights is not in D.M.’s best interests.  OPINION HOLDS: The mother’s reengagement with services shortly before the termination hearing is insufficient to demonstrate she is willing and able to work toward correcting the situation, and we cannot say that any additional time would enable the mother to achieve a different result.  Thus, there is clear and convincing evidence to support termination of the mother’s parental rights under section 232.116(1)(g).  Because termination of the mother’s parental rights is also in D.M.’s best interests, we affirm. 

Case No. 18-1796:  In the Interest of L.W., M.W., and I.C.-R., Minor Children

Filed Dec 19, 2018

View Opinion No. 18-1796

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (4 pages)

            A mother challenges the reasonable efforts made by the State to reunite her with her children prior to termination of her parental rights.  OPINION HOLDS: Visitation would not have remedied the mother’s parenting deficiencies and would have been contrary to the children’s best interests.

Case No. 18-1801:  In the Interest of A.M., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1801

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A mother appeals, challenging the juvenile court’s order terminating her parental rights to a one-year-old child.  She contends the State did not prove the statutory grounds for termination and termination is not in the child’s best interests.  OPINION HOLDS: After independently reviewing the record, we find clear and convincing evidence to support termination of the mother’s parental rights.  We further find termination of parental rights to be in the child’s best interests. 

Case No. 18-1804:  In re the Interest of A.R. and A.R., Minor Children

Filed Dec 19, 2018

View Opinion No. 18-1804

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            A mother appeals the termination of her parental rights to two children, contending (A) the department failed to make reasonable efforts to reunite her with the children; (B) termination is not in the children’s best interests; (C) she should have been afforded an additional six months to work toward reunification; and (D) the district court should not have terminated her parental rights because the children were placed with relatives.  OPINION HOLDS: On our de novo review of the record, we affirm the termination of the mother’s parental rights to the children.

Case No. 18-1807:  In the Interest of J.B. and J.B., Minor Children

Filed Dec 19, 2018

View Opinion No. 18-1807

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  REVERSED AND REMANDED ON BOTH APPEALS.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (7 pages)

            A father and a mother separately appeal the termination of their parental rights to their two children, Ja.B., born in August 2012, and Jo.B., born in February 2016.  OPINION HOLDS: The juvenile court abused its discretion in failing to continue the permanency and termination hearing in light of the parents’ absence and nonrepresentation by counsel.  We reverse the termination of parental rights.

Case No. 18-1851:  In the Interest of C.B., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1851

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (6 pages)

            A mother appeals the termination of her parental rights.  The mother argues the district court improperly denied her motion for recusal and the State failed to make reasonable efforts at reunification.  OPINION HOLDS: We find the district court did not abuse its discretion in denying the mother’s motion for recusal.  The mother has not preserved her reasonable-efforts argument. 

Case No. 18-1862:  In the Interest of K.G., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1862

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (4 pages)

            The mother appeals the termination of her parental rights to her one-year-old child, K.G.  The juvenile court terminated the mother’s parental rights pursuant to Iowa Code section 232.116(1)(g) and (h) (2018).  On appeal, she argues there is not clear and convincing evidence to support the statutory grounds for termination and termination is not in the child’s best interests because of the close bond the mother and K.G. share.  OPINION HOLDS: Clear and convincing evidence supports the termination of the mother’s parental rights pursuant to section 232.116(1)(h), termination is in the child’s best interests, and no permissive factor weighs against termination.  We affirm.

Case No. 18-1889:  In the Interest of M.S., Minor Child

Filed Dec 19, 2018

View Opinion No. 18-1889

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (6 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for termination of the father’s parental rights under Iowa Code section 232.116(1)(e) (2018).  Because termination, rather than delaying permanency an additional six months, is in the child’s best interests, we affirm.

Case No. 17-1015:  Jacque Dukes v. State of Iowa

Filed Dec 05, 2018

View Opinion No. 17-1015

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (11 pages)

            Jacque Dukes appeals from the denial of his application for postconviction relief (PCR).  He asserts trial counsel was ineffective (1) in failing to challenge the guilty verdicts for first-degree robbery and willful injury and the applicable jury instructions based on joint criminal conduct, (2) in failing to challenge the jury instructions on assault and the corroboration necessary to convict on accomplice testimony, (3) in introducing Dukes’s criminal history, and (4) in failing to strike a juror who was related by marriage to the prosecutor.  OPINION HOLDS: Because Dukes failed to prove trial counsel breached an essential duty resulting in prejudice, we affirm.

Case No. 17-1129:  In the Matter of the Teresa Kasparbauer Revocable Living Trust

Filed Dec 05, 2018

View Opinion No. 17-1129

            Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (11 pages)

            The six named appellants are siblings and beneficiaries of their deceased mother’s trust—the Teresa Kasparbauer Revocable Living Trust.  In a previous action, three of Teresa Kasparbauer’s grandchildren—the children of a seventh sibling, Shirley Kerber—sued the six siblings for a 1/7 share of the trust.  The district court awarded them the share, and we affirmed.  Here, the trust and siblings argue: (1) the trust’s due process rights were violated because the trust was not a named party and did not have notice of the first action, (2) the statute of limitations in Iowa Code section 633A.3108 (2017) prevents the grandchildren from bringing the second action, (3) the district court violated the constitutional rights of the trust when it granted the grandchildren’s motion for partial summary judgment, and (4) the doctrine of collateral estoppel and res judicata prevents the grandchildren from raising claims against the trust that they initially raised against the siblings in the first action.  OPINION HOLDS: Having considered each of the trust and sibling’s claims insofar as we could ascertain they were properly preserved for our review and supported by legal authority, we find no error with the district court’s ruling granting the grandchildren’s motion for partial summary judgment and denying the sibling’s motion for summary judgment.  We affirm.

Case No. 17-1265:  State of Iowa v. Alan Lee Hergenrader

Filed Dec 05, 2018

View Opinion No. 17-1265

            Appeal from the Iowa District Court for Monona County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            Alan Hergenrader appeals his conviction and sentence for the crime of operating while intoxicated, first offense.  First, Hergenrader argues his booking video should have been admitted in its entirety with sound, citing Iowa Rule of Evidence 5.106.  Second, Hergenrader argues the video, The Truth is in the Eyes, should not have been admitted as a demonstrative exhibit because the State did not lay a proper foundation and it was irrelevant and unfairly prejudicial.  OPINION HOLDS: We find the district court did not abuse its discretion in playing the entire booking video without audio and admitting the demonstrative video.

Case No. 17-1298:  In re the Marriage of Barns

Filed Dec 05, 2018

View Opinion No. 17-1298

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, J.J.  Opinion by Mullins, J.  (13 pages)

            Phillip Barns challenges the economic provisions of the decree dissolving his marriage to Kimberly Barns.  OPINION HOLDS: We find the award of spousal support and the court’s use of appreciation during the marriage of premarital assets equitable given the circumstances of the case.  We award Kimberly $7500.00 in appellate attorney fees.

Case No. 17-1343:  State of Iowa v. Steve Armsted

Filed Dec 05, 2018

View Opinion No. 17-1343

            Appeal from the Iowa District Court for Clinton County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Carr, S.J.  Opinion by Bower, J.  (5 pages)

            Steve Armsted appeals his conviction for willful injury causing serious injury.  OPINION HOLDS:  We find the present record is not adequate for us to address Armsted’s claim of ineffective assistance of counsel regarding defense counsel’s failure to present expert testimony on the issue of eyewitness identification or request a jury instruction on eyewitness identification, and we determine the issue should be preserved for postconviction proceedings.  We affirm Armsted’s conviction.

Case No. 17-1377:  Linda Agan v. Tammy Krambeck

Filed Dec 05, 2018

View Opinion No. 17-1377

            Appeal from the Iowa District Court for Polk County, Odell G. McGhee II, District Associate Judge.  REVERSED AND REMANDED FOR DISMISSAL.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (12 pages)

            Tammy Krambeck appeals from the default judgement entered by the small claims court evicting her from the home she rented from Linda Agan for more than three years.  Tammy maintains the small claims court had jurisdiction to set aside the default judgment and she had good cause for the judgment to be set aside.  Alternatively, she argues the district court should have set aside the judgment entered by the small claims court because the small claims court never had jurisdiction to enter the default in the first place, as the forcible entry and detainer (FED) notice was facially defective—it did not provide the required language about her right-to-cure the alleged clear and present danger—and in violation of her right to summon emergency assistance, found in Iowa Code section 562A.27B (2017).  OPINION HOLDS: Because the notice provided to Tammy failed to include the necessary right-to-cure language, the small claims court lacked jurisdiction to decide the FED action and the default judgment should not have been entered.  We reverse the entry of the default judgment and the writ of removal and possession and remand for dismissal of the underlying action.  As this issue is dispositive, we do not consider Tammy’s other arguments. 

Case No. 17-1388:  State of Iowa v. Isaiah Ramon Henderson

Filed Dec 05, 2018

View Opinion No. 17-1388

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and John D. Telleen, Judges.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Tabor, J., takes no part.  Opinion by Vaitheswaran, J.  (9 pages)

            Isaiah Henderson appeals his convictions for two counts of delivery of crack cocaine and one count of interference with official acts inflicting bodily injury, raising claims relating to the restoration of competency following a finding of incompetency and his speedy trial rights.  OPINION HOLDS: We conclude Henderson’s guilty plea amounted to a waiver of his right to raise challenges relating to the delay in competency-restoration treatment.  We conclude counsel did not breach an essential duty in waiving Henderson’s ninety-day speedy trial rights and Henderson’s one-year speedy trial right was not violated.  We affirm Henderson’s judgment and sentence.

Case No. 17-1500:  Darrell Lamar Thomas v. State of Iowa

Filed Dec 05, 2018

View Opinion No. 17-1500

            Appeal from the Iowa District Court for Clinton County, Mark J. Smith, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (3 pages)

            Darrell Lamar Thomas appeals from the denial of his application for postconviction relief (PCR).  Thomas raises a claim of ineffective assistance of trial counsel not presented to the PCR court.  OPINION HOLDS: The new ineffective-assistance claim is not properly preserved for our review.  And Thomas has failed to establish PCR counsel was ineffective.

Case No. 17-1569:  In re the Marriage of Freudenberg

Filed Dec 05, 2018

View Opinion No. 17-1569

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED AS MODIFIED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (16 pages)

            Christine Freudenberg appeals, and Mark Freudenberg cross-appeals, from the spousal-support and property-distribution provisions of a dissolution decree.  Christine challenges the spousal-support award and property-distribution provisions as inequitable.  Mark argues that if this court modifies any of the economic provisions of the dissolution decree, the court must then reevaluate and adjust the entire decree.  Christine seeks an award of appellate attorney fees.  OPINION HOLDS: We affirm the dissolution decree but modify it with respect to the distribution of the parties’ retirement accounts.  We modify the decree to divide Mark’s John Deere pension using the Benson formula and to divide the increases in the values of Christine’s retirement funds which accrued during the marriage equally between the parties.  We award the values of Christine’s retirement accounts at the time of marriage to Christine.  We decline Christine’s request to require Mark to select a joint and survivor annuity option on his pension and name her as beneficiary.  We affirm the court’s award of spousal support.  We award Christine $1500 in appellate attorney fees.  Costs on appeal are assessed equally between the parties.

Case No. 17-1607:  Chuck Steeve and Megan Steeve v. IMT Insurance Company

Filed Dec 05, 2018

View Opinion No. 17-1607

            Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (10 pages)

           

            Chuck and Megan Steeve appeal from the district court’s summary dismissal of their lawsuit against IMT Insurance Company for breach of their insurance contract and coverage based on the doctrine of reasonable expectations.  Under their breach-of-contract-claim, the Steeves argue the phrase “human force” is ambiguous and thus must be construed against IMT; there is a genuine issue of material fact regarding whether the plumbing failure was caused by “human forces”; and because there is a genuine issue of material fact regarding causation, this issue is not appropriate for summary judgment.  Additionally, the Steeves maintain the district court erred in its refusal to apply the doctrine of reasonable expectations to their loss.  OPINION HOLDS: Because it is undisputed that the damages to the Steeves’ home were the result of earth movement, the earth-movement exclusion applies and IMT did not breach the insurance contract.  Additionally, IMT is entitled to judgment as matter of law on the claim of reasonable expectations.  We affirm.

Case No. 17-1640:  State of Iowa v. William E. Crawford

Filed Dec 05, 2018

View Opinion No. 17-1640

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, and remanded.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (8 pages)

            William Crawford appeals the judgment and sentence imposed following his second-degree-murder conviction.  OPINION HOLDS: I. The district court acted within its discretion in denying Crawford’s motion to continue the trial.  The record shows the issue was not a matter of counsel’s lack of preparation but one of surprise based on unfavorable deposition testimony given by a witness that Crawford believed would help him at trial, and Crawford failed to make a sufficiently specific statement as to why a continuance was necessary.  II. Even assuming statements made in a video of Crawford’s police interview were inadmissible, Crawford has failed to establish he was prejudiced by the statements when the evidence was cumulative and the court’s instruction limited the purposes for which the jury could consider the statements.  III. We vacate the portion of the sentencing order requiring that Crawford affirmatively request a hearing on his ability to pay appellate attorney fees and remand for entry of a corrected sentencing order.

Case No. 17-1650:  Romoke Olutunde v. Iowa Department of Human Services, Charles M. Palmer, Director

Filed Dec 05, 2018

View Opinion No. 17-1650

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (14 pages)

            Romoke Olutunde appeals the district court decision affirming the ruling of the Iowa Department of Human Services (DHS) finding she committed dependent adult abuse.  OPINION HOLDS:  We find DHS properly interpreted the term “caretaker” and concluded Olutunde was a caretaker of the patient in question during the relevant period of time.  We also find there is substantial evidence in the record to show staff trained by Olutunde were not consistent in providing medication to the patient in a timely manner, or at the very least, were not consistent in providing documentation to show whether or not the patient was receiving her medication as prescribed.  We affirm the district court’s decision, affirming the decision of DHS finding Olutunde committed dependent adult abuse.

Case No. 17-1662:  State of Iowa v. Brandon Brown

Filed Dec 05, 2018

View Opinion No. 17-1662

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (8 pages)

            Brandon Brown appeals his conviction for stalking while in possession of a dangerous weapon.  He argues the evidence is insufficient to support his conviction.  OPINION HOLDS: We find the evidence sufficient to prove he engaged in an unlawful course of conduct and affirm.

Case No. 17-1761:  Doug Jaster and Elizabeth Jaster v. City of Garber

Filed Dec 05, 2018

View Opinion No. 17-1761

            Appeal from the Iowa District Court for Clayton County, John J. Bauercamper, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            The City of Garber seeks reversal of the district court decision granting ownership rights of disputed property to Doug and Elizabeth Jaster.  OPINION HOLDS: We find the Jasters have presented clear and convincing evidence the property should be equitably estopped to them.

Case No. 17-1838:  State of Iowa v. Jonathan Shane Weston

Filed Dec 05, 2018

View Opinion No. 17-1838

            Appeal from the Iowa District Court for Appanoose County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (5 pages)

            Jonathan Weston appeals following conviction for domestic abuse assault causing bodily injury, in violation of Iowa Code sections 708.1 and 708.2A(2)(b) (2017).  His challenges are to the sentencing procedure and the sentence imposed.  OPINION HOLDS: Because Weston was allowed his right to allocution and his restitution claim is premature, we affirm.

Case No. 17-2060:  State of Iowa v. Franklin Lee Harris

Filed Dec 05, 2018

View Opinion No. 17-2060

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (4 pages)

            Franklin Harris appeals his conviction for driving while license denied or revoked.  OPINION HOLDS: Harris failed to raise the issue of inconsistent verdicts to the district court and has therefore failed to preserve error for our review.  Regardless, Harris has failed to show the jury’s verdicts are inconsistent.

Case No. 17-2081:  In re the Marriage of Whitford

Filed Dec 05, 2018

View Opinion No. 17-2081

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Richard Whitford appeals an order granting Deborah Whitford’s motion to dismiss Richard’s petition to modify the parties’ 2006 divorce decree as well as her request for attorney fees, claiming the court lacked authority to make its ruling and that it erred in its findings and consideration of factual matters.  OPINION HOLDS: We discern no error in the court’s conclusion.  We discern no abuse of discretion in the court’s imposition of sanctions.  We decline Deborah’s request for appellate attorney fees.

Case No. 18-0001:  Edward J. Kovarik v. Iowa Department of Revenue

Filed Dec 05, 2018

View Opinion No. 18-0001

            Appeal from the Iowa District Court for Howard County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (18 pages)

            A taxpayer challenges orders by the Iowa Department of Revenue denying him relief under the Iowa Tax Amnesty Act of 2007 and disallowing business losses claimed in four tax years.  OPINION HOLDS: First, substantial evidence supports the finding the taxpayer did not file a 2002 tax return as he was required to do to be eligible for the tax amnesty.  Second, substantial evidence supports disallowing each of the business losses he claimed related to his railroad consulting, condominium rental, and farmland rental business.  Therefore, we affirm. 

Case No. 18-0051:  State of Iowa v. Jose Avalos Covarrubias

Filed Dec 05, 2018

View Opinion No. 18-0051

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

            Jose Avalos Covarrubias appeals his conviction for robbery in the second degree, under Iowa Code section 711.3 (2017).  He contends the State failed to prove he specifically intended to cause a bodily injury.  OPINION HOLDS: Avalos Covarrubias misconstrues the elements of robbery in the second degree: the State did not need to show a specific intent to cause bodily injury, only that Avalos Covarrubias had the specific intent to commit an assault and his act caused bodily injury.  On our review of the evidence, the verdict is supported by substantial evidence.  We affirm. 

Case No. 18-0138:  Johnathan Erdman v. Elizabeth Vopava, n/k/a Elizabeth Mumford

Filed Dec 05, 2018

View Opinion No. 18-0138

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (5 pages)

            Johnathan Erdman appeals from the district court’s order regarding physical care of A.E., his child with Elizabeth Vopava, now known as Elizabeth Mumford.  He argues the district court should not have continued A.E.’s physical care with Elizabeth.  OPINION HOLDS: On our de novo review of the record, we decline to interfere with the district court’s findings and ruling.   We also deny Elizabeth’s request for appellate attorney fees.

Case No. 18-0170:  Lavon M. Brockman v. Glen R. Ruby and Lori A. Ruby

Filed Dec 05, 2018

View Opinion No. 18-0170

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            LaVon Brockman appeals the dismissal of her equitable action to abate a private nuisance and establish a drainage easement.  She contends the district court erred in concluding a circumstance on adjoining land owned by Glen and Lori Ruby does not amount to a nuisance and the court failed to consider the easement issue.  Both parties request an award of appellate attorney fees.  The Rubys request an additional award of expert-witness fees incurred in the district court proceedings.  OPINION HOLDS: We affirm the denial of Brockman’s petition, deny the parties’ requests for appellate attorney fees, and deny the Rubys’ request for additional expert-witness fees.

Case No. 18-0196:  In re Marriage of Rocksvold and Orvella

Filed Dec 05, 2018

View Opinion No. 18-0196

            Appeal from the Iowa District Court for Winneshiek County, John J. Bauercamper, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS APPEAL.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (9 pages)

            Parties to a divorce decree appeal and cross-appeal from the property distribution, spousal support, custody, visitation, and attorney-fee provisions of the decree.  OPINION HOLDS: We modify the dissolution decree to (1) provide that Orvella shall pay Rocksvold $55,580 as a cash property settlement; (2) grant Rocksvold’s reasonable request for rehabilitative alimony in the amount of $1500 per month for three years; and (3) provide that Orvella shall pay the entirety of Rocksvold’s trial attorney-fee bill, totaling $16,214.22.  We affirm the district court’s decision to grant Rocksvold physical care of the child and decline to award Orvella extraordinary visitation rights.  We grant Rocksvold’s request for appellate attorney fees and order Orvella to pay her $3500 toward the obligation.

Case No. 18-0216:  In re the Marriage of Goins

Filed Dec 05, 2018

View Opinion No. 18-0216

            Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (4 pages)

            Dewey Goins appeals from the denial of his application to modify support for his former spouse Mary (known as “Pat”) Goins.  OPINION HOLDS: We agree with the trial court that modification of Dewey’s support obligation is not warranted.  Rather, modifying the spousal support would do a positive injustice to Pat.  We therefore affirm.

Case No. 18-0543:  State of Iowa v. Katrina Eubanks

Filed Dec 05, 2018

View Opinion No. 18-0543

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Katrina Eubanks appeals her convictions for neglect of a dependent person and dependent-adult abuse resulting in injury.  OPINION HOLDS: We find the district court did not abuse its discretion in denying Eubanks’s post-plea motion to substitute counsel. 

Case No. 18-0544:  In the Interest of V.S. and A.S., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-0544

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (12 pages)

            The mother and father separately appeal the termination of their parental rights.  Both parents argue the grounds for termination were not met because the children could have been returned at the time of the termination hearing, they were not provided reasonable efforts toward reunification, and the district court should have dismissed the termination petition due to the misconduct of an Iowa Department of Human Services (DHS) witness.  The mother additionally argues termination is not in the children’s best interests.  OPINION HOLDS: Because we find the State proved the grounds for termination under Iowa Code section 232.116(1)(f) (2017) by clear and convincing evidence, DHS provided reasonable efforts toward reunification, termination is in the children’s best interests, and the district court correctly found it did not rely on false or fraudulent statements at the termination hearing, we affirm the district court’s order terminating the parental rights of both parents. 

Case No. 18-0701:  State of Iowa v. Lionel Cano Vela

Filed Dec 05, 2018

View Opinion No. 18-0701

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (3 pages)

            Lionel Vela challenges the sentence imposed after pleading guilty to one count of forgery.  OPINION HOLDS: The district court properly exercised its discretion in imposing the sentence.  Although Vela cites factors he believes the court should have considered or given more weight, the sentence is not unreasonable or based on untenable grounds.

Case No. 18-0728:  In the Interest of M.M. and I.M., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-0728

            Appeal from the Iowa District Court for Monroe County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (7 pages)

            A father appeals from the termination of his parental rights to two children on private petition by their mother.  OPINION HOLDS: The mother showed by clear and convincing evidence the father abandoned the children by rejecting the duties imposed by a parent-child relationship, largely due to his abuse of illegal drugs.  The mother also showed by clear and convincing evidence the children’s best interests are served by allowing them to remain in their current situation with their mother and stepfather, who wishes to adopt them.  We affirm.  

Case No. 18-0739:  In the Interest of J.V. and C.E., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-0739

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights in a private termination action.  OPINION HOLDS: We find the mother abandoned the children and termination is in the children’s best interests. 

Case No. 18-0875:  In the Interest of M.C., A.M., L.M., and A.M., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-0875

            Appeal from the Iowa District Court for Washington County, Daniel Kitchen, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            A mother and father challenge an order terminating their rights in their children.  OPINION HOLDS: The State proved by clear and convincing evidence that the children could not be returned to the father at the time of termination.  The Iowa Department of Human Services made reasonable efforts to reunify the father with his children.  The court did not err in denying the mother and father an additional six months toward reunification.  The court did not err in finding that termination was in the best interests of the children.

Case No. 18-1022:  In the Interest of K.C., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1022

            Appeal from the Iowa District Court for Delaware County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother appeals the district court’s decision denying her petition seeking to terminate the father’s parental rights.  OPINION HOLDS:  We find the court properly determined the mother did not meet her burden to show by clear and convincing evidence the father had abandoned the child.  Due to our finding on this issue, we do not consider whether termination was in the child’s best interests.  We affirm the district court’s decision.

Case No. 18-1083:  In the Interest of W.G. and T.G., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-1083

            Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (6 pages)

            The mother appeals the termination of her parental rights to W.G., born January 2004, and T.G., born March 2002.  She argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(f) (2018), termination is not in the best interests of the children, and there is a strong bond between her and the children that precludes termination under Iowa Code section 232.116(3)(c).  OPINION HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination of the mother’s parental rights.  Additionally, termination is in the best interests of the children and any bond between the mother and children does not preclude termination.

Case No. 18-1131:  In the Interest of M.C., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1131

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            A mother and father appeal from a decision terminating their parental rights to their minor child, arguing termination is not in the child’s best interests.  OPINION HOLDS: We agree with the district court that termination is in the child’s best interests, and we affirm on both appeals.

Case No. 18-1223:  In the Interest of V.L., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1223

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  MOTION TO DISMISS OVERRULED; JUDGMENT AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            A temporary custodian, Linda, appeals a joint permanency and termination order transferring custody and guardianship of her niece to the department of human services (DHS).  The State filed a motion to dismiss the appeal, arguing Linda only intervened in the child-in-need-of-assistance case, not the termination-of-parental-rights case, and the permanency order she now challenges is not a final appealable order.  Linda also appeals the denial of her motion for new trial based on newly discovered evidence and an evidentiary issue.  OPINION HOLDS: The motion to dismiss is overruled.  The joint permanency-termination order was not interlocutory but a final ruling on V.L.’s guardianship and custody.  And Linda did not have to intervene in the termination case when the court combined the proceedings.  Nor are the appeal issues moot.  On our de novo review, we reach the same conclusion as the juvenile court, that guardianship and custody should be transferred to the DHS, which can consider whether Linda is an appropriate long-term placement.  We affirm the district court's rulings on the motion for new trial and the evidentiary issue.  Neither would have changed the decision to transfer custody and guardianship to the DHS. 

Case No. 18-1236:  In the Interest of Z.R., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1236

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (3 pages)

            The mother appeals the termination of her parental rights to her child, Z.R.  OPINION HOLDS: The mother does not challenge the ground upon which the court terminated her parental rights, and she raises no other arguments on appeal.  We affirm. 

Case No. 18-1526:  In the Interest of K.L., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1526

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Termination is in the child’s best interests where the record shows that preserving the parent-child relationship would expose the child to more harm than would terminating the mother’s parental rights.

Case No. 18-1651:  In the Interest of R.K. and R.N., Minor Children

Filed Dec 05, 2018

View Opinion No. 18-1651

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A mother of two children and the father of one of the children appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: We find the mother did not preserve error on her claim regarding reasonable efforts and termination is in the best interests of the children.  We affirm the termination of the parents’ rights.

Case No. 18-1725:  In the Interest of L.S., Minor Child

Filed Dec 05, 2018

View Opinion No. 18-1725

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals a juvenile court order terminating her parental rights to her minor child.  She challenges the sufficiency of the evidence to support termination, argues termination is not in the best interests of the child, and contends the statutory exception to termination contained in Iowa Code section 232.116(3)(c) (2018) should be applied to preclude termination.  OPINION HOLDS: We conclude the State met its burden for termination under Iowa Code section 232.116(1)(h), termination is in the child’s best interests, and the mother failed to meet her burden to establish a statutory exception to termination.  We therefore affirm the termination of the mother’s parental rights. 

Case No. 16-1440:  State of Iowa v. Tomas Tovar

Filed Nov 21, 2018

View Opinion No. 16-1440

            Appeal from the Iowa District Court for Muscatine County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (16 pages)

            Tomas Tovar appeals his conviction for sexual abuse in the third degree.  He challenges the sufficiency of the evidence supporting conviction, his trial counsel’s failure to specifically challenge the sufficiency of the evidence of an alternative theory, the district court’s refusal to require unanimity amongst the jurors’ findings regarding which alternative theory supported conviction, and the inclusion of instructions for lesser included offenses.  OPINION HOLDS: Sufficient evidence supported Tovar’s conviction under both alternative theories.  Because the alternative theories are not repugnant to each other, unanimity among the jurors’ findings was not required.  Because Tovar was committed of the greater offense, he was not prejudiced by the inclusion of instructions for lesser included offenses.

Case No. 16-1494:  Montez D. Shortridge v. State of Iowa

Filed Nov 21, 2018

View Opinion No. 16-1494

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Montez Shortridge appeals from the district court’s denial of his application for postconviction relief.  He contends (1) the State suppressed exculpatory evidence and (2) he is “entitled to an ex parte hearing for the appointment of an expert.”  OPINION HOLDS: We affirm the district court’s denial of Shortridge’s second postconviction-relief application and motion.

Case No. 17-0866:  Rauen & Rauen Development, LLC, Dennis J. Rauen, Virginia A. Rauen, Ertl Limited Partnership, and Molo Petroleum, LLC v. City of Farley, Iowa

Filed Nov 21, 2018

View Opinion No. 17-0866

            Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.  AFFIRMED.  Heard by Danilson, C.J., McDonald, J., and Blane, S.J.  Opinion by McDonald, J.  Special Concurrence by Blane, S.J.  (8 pages)

            The city of Farley appeals the district court’s reduction of certain special assessments.  OPINION HOLDS: Because the special assessments exceeded the special benefits received by property owners, the district court properly reduced the special assessments to not exceed the special benefits.  SPECIAL CONCURRENCE ASSERTS: The City’s arguments justifying their assessment to the abutting property owners do not stand up to scrutiny.  First, a purely "lineal foot" assessment does not comport with the law.  Second, the City failed to establish the project conferred special benefit to the property to justify the assessments.  And finally, the court correctly relied upon the expert’s formula for calculating the assessment. 

Case No. 17-0907:  The Security National Bank of Sioux City, Iowa, as the duly appointed Personal Representative of the Estate of Roger E. Rand v. Frank H. Welte II, Diane Welte, Matthew Welte, Welte Flats Farms, Inc., BJM, Inc., Western Slopes Farms, Valley Flats Farms, Inc. and Donald Molstad

Filed Nov 21, 2018

View Opinion No. 17-0907

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  REVERSED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (8 pages)

            The Security National Bank of Sioux City, Iowa (SNB), was appointed personal representative of Roger Rand’s estate and filed a petition for replevin against multiple defendants.  SNB requested immediate possession of farm-related personal property upon which Rand held a perfected security interest.  A hearing was held, and the district court issued two separate rulings, one of which is the subject of this appeal.  OPINION HOLDS: We find, even assuming Frank/BJM and Rand had an implied course of dealing, Frank’s disposition of the tractors by gifting the equity to Matthew was not within the prior course of dealing.

Case No. 17-0966:  T. Zenon Pharmaceuticals LLC, (d/b/a Pharmacy Matters) v. Wellmark, Inc. and Wellmark Health Plan of Iowa

Filed Nov 21, 2018

View Opinion No. 17-0966

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; AFFIRMED ON CROSS APPEAL.  Heard by Vogel, P.J., Tabor, J., and Carr, S.J.   Opinion by Tabor, J.  (15 pages)

            Mutual insurance company Wellmark, Inc. (Wellmark) appeals the district court’s award of damages and attorney fees for Wellmark’s breach of its contract with T. Zenon Pharmaceuticals (d/b/a and hereinafter referred to as Pharmacy Matters).  OPINION HOLDS: Because the district court’s calculation of damages was supported by sufficient evidence and properly awarded interest, we affirm the damage award.  But because common-law attorney fees were not justified, we reverse with respect to attorney fees and remand for entry of judgment consistent with our opinion.

Case No. 17-1104:  In re the Marriage of Grask

Filed Nov 21, 2018

View Opinion No. 17-1104

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (18 pages)

            William (Bill) Grask appeals from the economic provisions of the decree dissolving his marriage to Anne Grask.  OPINION HOLDS: I. With respect to the property distribution, we affirm the transfer of the children’s college savings accounts into Anne’s name.  We also affirm the award of interest on the cash payment Bill is required to pay Anne to compensate her for her one-half interest in Bill’s dental practice.  Because the record supports the finding that Bill dissipated $106,250 in marital assets, we affirm the award $53,125 to compensate Anne for the dissipation.  However, we modify the decree to require each party to pay one-half of their 2015 state and federal tax liability and to reimburse Bill the principal on any mortgage payments he makes in advance of the marital home’s sale.  Although the overall property distribution provides Anne with approximately $20,000 more in assets, it is equitable.  II. Taking into consideration Anne’s needs and Bill’s ability to pay, we agree that an award of $3000 per month in traditional alimony is appropriate under the facts of this case.  III. We remand to the district court to determine the amount of child support specified by the present day child support guidelines.  IV. We modify the award of trial attorney fees, reducing it from $40,000 to $30,000.  V. We decline to award Anne appellate attorney fees.

Case No. 17-1192:  Dwayne Sunberg and Patricia Sunberg v. Audubon County, Iowa, Audubon County Board of Supervisors, and Audubon County Soil and Water Commission

Filed Nov 21, 2018

View Opinion No. 17-1192

            Appeal from the Iowa District Court for Audubon County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Dwayne and Patricia Sunberg initiated a lawsuit against Audubon County, the Audubon County Board of Supervisors, and the Audubon County Soil and Water Commission (collectively, “the defendants”) seeking damages for the defendants’ alleged failure to properly maintain a soil and water conservation structure located on the Sunbergs’ property.  On appeal, the Sunbergs claim the defendants have a statutory, contractual, and common law duty to maintain the structure by removing accumulated silt or taking action to reduce the rate the silt would accumulate.  They assert the district court was wrong to conclude the defendants did not owe a duty to the Sunbergs to maintain the structure or, alternatively, even if the defendants did owe a duty to maintain, their inaction allowing the accumulation of silt was not a breach of the duty to maintain.  OPINION HOLDS: The defendants have neither a statutory, common law, nor contractual duty to maintain structure 28-3.  Even if they did have a contractual duty to maintain the structure, that duty would not require them to remove accumulated silt or take action to reduce the rate the silt would accumulate, as the structure was designed to accumulate silt and is functioning properly.  We affirm the district court’s dismissal of the Sunbergs’ lawsuit.

Case No. 17-1226:  Donald Joseph Dockery v. State of Iowa

Filed Nov 21, 2018

View Opinion No. 17-1226

           Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (9 pages)

           Donald Dockery appeals the denial of his application for postconviction relief (PCR).  He contends: (1) his PCR counsel rendered ineffective assistance in not raising plea counsel’s failure to challenge the factual bases underlying the crimes of third-degree theft and ongoing criminal conduct and (2) the PCR court erred in denying relief on the claim that plea counsel was ineffective in failing to challenge the factual bases for another component of the theft charges.  OPINION HOLDS: We find plea counsel rendered ineffective assistance in failing to challenge the factual bases underlying Dockery’s guilty pleas to third-degree theft and PCR counsel rendered ineffective assistance in failing to recognize and raise the same issue in the PCR proceedings.  As such, we reverse the denial of PCR.  We remand the case to the district court to enter judgment in favor of Dockery finding plea counsel rendered ineffective assistance.  The district court shall order Dockery’s sentences be set aside and invalidate the entire plea agreement by vacating all convictions.  Subject to the provisions of Iowa Code section 802.9, the State may reinstate any charges dismissed as part of the plea agreement and file any additional charges supportable by the available evidence.  Based on our disposition, we find it unnecessary to consider Dockery’s remaining challenges. 

Case No. 17-1269:  Martin Ray Hiatt v. State of Iowa

Filed Nov 21, 2018

View Opinion No. 17-1269

            Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Danilson, C.J., Potterfield, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            Martin Hiatt appeals the district court’s denial of his application seeking postconviction relief from his convictions of three counts of second-degree sexual abuse and four counts of indecent contact with a child.  OPINION HOLDS: Hiatt has not shown he received ineffective assistance of counsel or provided any other basis to support his request for postconviction relief.  We affirm the district court’s decision denying Hiatt’s application for postconviction relief.

Case No. 17-1280:  Southern Iowa Bin Builders, LLC d/b/a Southern Iowa Bin Company v. Steven Jerome Sieren

Filed Nov 21, 2018

View Opinion No. 17-1280

            Appeal from the Iowa District Court for Keokuk County, Joel D. Yates, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (12 pages)

            Steven Sieren appeals from a judgment entered against him in this suit by Southern Iowa Bin Builders, LLC to recover payment on a dishonored check.  OPINION HOLDS: Because we give weight to the district court’s credibility assessments and the trial court’s findings are supported by substantial evidence, we affirm.

Case No. 17-1351:  State of Iowa v. Stephon Travell Curry

Filed Nov 21, 2018

View Opinion No. 17-1351

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            Defendant Stephon Curry challenges his sentence for conviction of robbery in the second degree.  OPINION HOLDS: The court did not abuse its discretion in imposing Curry’s sentence.  The court did not commit legal error by failing to determine Curry’s ability to pay court costs.

Case No. 17-1432:  Rebecca Coffin v. Brenna Christine Doherty

Filed Nov 21, 2018

View Opinion No. 17-1432

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Brenna Doherty appeals an order for new trial granted to Rebecca Coffin following a jury verdict finding Doherty was not at fault for an automobile accident.  OPINION HOLDS:  The jury instruction on sudden emergency was not applicable in the case and its inclusion was prejudicial.  We affirm the district court order for a new trial.

Case No. 17-1454:  State of Iowa v. Joseph Bright

Filed Nov 21, 2018

View Opinion No. 17-1454

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (6 pages)

            Joseph Bright appeals from his conviction for indecent exposure, in violation of Iowa Code section 709.9 (2016), following a jury trial.  He challenges the sufficiency of the evidence that his exposure of his erect penis was done with the specific intent to arouse or satisfy his sexual desire.  He also asserts trial counsel was ineffective in failing to object to the admission of the video recording of Bright’s statements to police.  OPINION HOLDS:  We find substantial evidence supports the conviction, and we preserve Bright’s ineffectiveness claim for possible postconviction proceedings.

Case No. 17-1524:  State of Iowa v. Douglas Lynn Cook

Filed Nov 21, 2018

View Opinion No. 17-1524

            Appeal from the Iowa District Court for Cass County, Richard H. Davidson and Gregory W. Steensland, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Douglas Cook appeals his convictions for two counts of second-degree sexual abuse and one count of disseminating or exhibiting obscene material to a minor, contending the district court abused its discretion in denying his motion to sever the charges.  OPINION HOLDS: We discern no abuse of discretion in the court’s application of the law and its denial of Cook’s severance motion.  We affirm his judgment and sentence.

Case No. 17-1578:  State of Iowa v. Mohamed Elamin

Filed Nov 21, 2018

View Opinion No. 17-1578

            Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., McDonald, J., and Blane, S.J.  Opinion by McDonald, J.  (3 pages)

            Defendant Mohamed Elamin appeals his conviction of possession of a controlled substance.  OPINION HOLDS: Elamin’s right to speedy indictment was not violated, and the district court did not err in denying his motion to dismiss. 

Case No. 17-1583:  Susana Rodriguez v. Cynthia Marie Spenner

Filed Nov 21, 2018

View Opinion No. 17-1583

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (7 pages)

            Susana Rodriguez appeals from an adverse judgment in her personal-injury suit against Cynthia Spenner, contending the trial court erred in instructing the jury and in denying her motion for new trial.  OPINION HOLDS: The court did not commit reversible error in instructing the jury as to a preexisting condition because there was factual support for the instruction.  Nor did the court abuse its discretion in denying the motion for new trial.

Case No. 17-1633:  State of Iowa v. Melvin William Spencer III

Filed Nov 21, 2018

View Opinion No. 17-1633

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (17 pages)

            Melvin Spencer appeals his conviction following a jury trial for attempted murder.  OPINION HOLDS: Upon our review of the record, we do not find the district court abused its discretion when it ruled the evidence relating to the baggie of cocaine found at the scene was admissible because it was relevant, admissible for a non-character purpose, and more probative than prejudicial.  Nevertheless, even if the district court abused its discretion, the error was harmless under the facts of the case and does not warrant reversal.  Finally, we preserve for possible postconviction-relief proceedings Spencer’s ineffective-assistance-of-counsel claims.  Accordingly, we affirm Spencer’s conviction and sentence.

Case No. 17-1713:  State of Iowa v. Lundell Buchanan

Filed Nov 21, 2018

View Opinion No. 17-1713

           Appeal from the Iowa District Court for Linn County, Casey D. Jones, District Associate Judge.  AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (5 pages)

           Lundell Buchanan appeals multiple criminal convictions following a jury trial.  He contends the racial composition of the jury pool violated his constitutional right to a jury drawn from a fair cross-section of the community.  He also argues the district court abused its discretion in denying his morning-of-trial request for new counsel on the basis that he previously alleged his defense counsel rendered ineffective assistance in a prior representation and his attorney was ineffective in failing to discover this circumstance sooner.  OPINION HOLDS: We deem Buchanan’s argument that the district court abused its discretion in denying his request for new counsel waived and conclude trial counsel was not ineffective as alleged.  However, we conclude the district court should have granted Buchanan’s request to further investigate the racial composition of the jury pool.  As such, we conditionally affirm Buchanan’s convictions and remand the matter to the district court for development of the record on the challenge to the composition of the jury.  Following development of the record, we direct the district court to determine whether Buchanan’s constitutional right to a representative jury was violated.  If so, the court shall grant a new trial.

Case No. 17-1719:  Travis Hoppe v. State of Iowa

Filed Nov 21, 2018

View Opinion No. 17-1719

            Appeal from the Iowa District Court for Linn County, Andrew B. Chappell, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Travis Hoppe appeals from the district court’s denial of his application for postconviction relief.  He contends (1) plea counsel was ineffective, (2) postconviction counsel was ineffective, and (3) the postconviction court erred by denying his motion for a continuance.  OPINION HOLDS: We conclude (1) plea counsel did not breach an essential duty in failing to challenge the value element of first-degree theft, (2) Hoppe was not prejudiced by postconviction counsel’s failure to obtain a foundation witness for proposed evidence, and (3) the district court’s denial of Hoppe’s continuance motion was not an abuse of discretion.

Case No. 17-1806:  State of Iowa v. Jon Arthur Dieckmann

Filed Nov 21, 2018

View Opinion No. 17-1806

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (9 pages)

            Jon Dieckmann appeals his conviction and sentence for attempted burglary in the second degree and possession of burglar’s tools.  He argues his counsel was ineffective on several grounds and the district court improperly assessed appellate attorney fees.  OPINION HOLDS: We find his counsel was not ineffective for failing to challenge the sufficiency of the evidence, we preserve his other ineffective-assistance claims, and we find the court did not err in addressing appellate attorney fees. 

Case No. 17-1814:  State of Iowa v. Patrick Barrett Jr.

Filed Nov 21, 2018

View Opinion No. 17-1814

            Appeal from the Iowa District Court for Cass County, Jeffrey L. Larson, Judge.  CONVICTION CONDITIONALLY AFFIRMED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (15 pages)

            Patrick Barrett Jr. appeals his conviction of sexual abuse in the second degree.  OPINION HOLDS: The district court abused its discretion in denying Barrett’s discovery request for the victim’s mental-health and counseling records.  The district court did not abuse its discretion when denying Barrett’s motion for new trial.

Case No. 17-1833:  State of Iowa v. Isai Sanchez-Casco

Filed Nov 21, 2018

View Opinion No. 17-1833

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (13 pages)

            Isai Sanchez-Casco appeals his conviction for operating while intoxicated (OWI), third offense.  He argues the district court abused its discretion in allowing expert testimony on intoxication, and he appeals the denials of his motion for judgment of acquittal and motion for new trial.  OPINION HOLDS: We find the State presented an adequate foundation for the expert testimony.  We also find the verdict is supported by substantial evidence and the court did not abuse its discretion in denying his motion for new trial.

Case No. 17-1854:  State of Iowa v. Austin L. Keller

Filed Nov 21, 2018

View Opinion No. 17-1854

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and Mark J. Smith, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.  Tabor, J., takes no part.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Austin Keller appeals from his conviction for theft in the second degree, claiming the district court imposed “a greater sentence than agreed to in the plea agreement without giving [him] the opportunity to withdraw the plea.”  OPINION HOLDS: Having concluded Keller was not entitled to withdraw his plea, we further conclude his attorney was not ineffective in failing to object on this ground.  We affirm Keller’s judgment and sentence.

Case No. 17-1871:  State of Iowa v. Drew Allan Johnson

Filed Nov 21, 2018

View Opinion No. 17-1871

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower,J.  (8 pages)

            Drew Johnson appeals his conviction for domestic abuse assault causing bodily injury, enhanced.  OPINION HOLDS:  We find there is substantial evidence in the record to support the jury’s verdict in this case.  We affirm Johnson’s conviction for domestic abuse assault, but due to insufficiencies in the colloquy where he stipulated to a prior conviction, we reverse the determination this was a second offense and remand for further proceedings.  In making this determination, we also vacate Johnson’s sentence for domestic abuse assault, enhanced.  On remand, upon the conclusion of proceedings concerning the prior conviction, Johnson should be resentenced.

Case No. 17-1888:  State of Iowa v. Sean Michael Freese

Filed Nov 21, 2018

View Opinion No. 17-1888

           Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART AND REMANDED WITH DIRECTIONS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

           Sean Freese appeals two convictions of first-degree murder stemming from the deaths of his parents and the sentences imposed.  He challenges the sufficiency of the evidence to support his convictions and contends the district court erred in ordering him to pay a law-enforcement-initiative surcharge on each of the counts.  OPINION HOLDS: We affirm Sean’s convictions of murder in the first degree.  We vacate the law-enforcement-initiative surcharges and remand for entry of a corrected sentencing order. 

Case No. 17-2004:  State of Iowa v. Maria Amelia Leedom

Filed Nov 21, 2018

View Opinion No. 17-2004

            Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Maria Leedom appeals her conviction for voluntary absence from custody, claiming ineffective assistance of counsel.  OPINION HOLDS: We preserve Leedom’s ineffective-assistance-of-counsel claim.  We affirm her conviction for voluntary absence from custody.

Case No. 17-2019:  Andrew Lennette, Individually and on behalf of C.L., O.L., and S.L., Minors v. State of Iowa, Melody Siver, Amy Howell, and Valerie Lovaglia

Filed Nov 21, 2018

View Opinion No. 17-2019

           Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (8 pages)

           Defendants in a civil lawsuit appeal a district court ruling partially denying their pre-answer motion to dismiss.  OPINION HOLDS: We affirm the district court’s denial of defendants’ motion to dismiss.  

Case No. 17-2041:  Robert Shipton v. Chickasaw County Board of Health, Chickasaw County Public Health Agency, Chickasaw County Public Health Nursing Service d/b/a Chickasaw County Public Health & Home Care Services, and Terri Franzen, R.N.

Filed Nov 21, 2018

View Opinion No. 17-2041

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Plaintiff Robert Shipton appeals the district court’s grant of the defendants’ motion for summary judgment.  OPINION HOLDS: There was no genuine issue of material fact as to whether the defendants’ conduct on June 24 was protected by emergency-response immunity, and the court did not err in granting summary judgment in favor of the defendant on that claim.  However, there was a genuine issue of material fact as to whether the defendants’ conduct prior to June 24 was negligent, and the court erred in granting summary judgment as to that claim.

Case No. 18-0014:  Duvalmetrise Brown v. State of Iowa

Filed Nov 21, 2018

View Opinion No. 18-0014

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Duvalmetrise Brown appeals the denial of his application for postconviction relief, claiming his trial attorney was ineffective in failing to cross-examine and “the postconviction court erred in barring as irrelevant testimony needed to prove that the ineffectiveness of trial counsel was prejudicial.”  OPINION HOLDS: We affirm the denial of Brown’s postconviction-relief application.

Case No. 18-0039:  State of Iowa v. Elisa Marie Walker

Filed Nov 21, 2018

View Opinion No. 18-0039

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (11 pages)

            Eliza Walker appeals after pleading guilty to one count of second-degree theft and one count of identity theft.  She contends her counsel was ineffective in allowing her to plead guilty when questions existed concerning her competency.  OPINION HOLDS: Although the record at the time of the plea hearing raises a question as to Walker’s competence, there is no medical evidence concerning her ability to appreciate the charges she was facing, understand the proceedings, or assist effectively in her defense.  Therefore, we preserve Walker’s ineffective-assistance claim for postconviction relief, which is the appropriate forum to conduct an evidentiary hearing to determine the validity of her claim. 

Case No. 18-0047:  Isaac Ortiz v. Loyd Roling Construction and Grinnell Mutual Reinsurance

Filed Nov 21, 2018

View Opinion No. 18-0047

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Isaac Ortiz appeals the district court’s dismissal of his petition for judicial review of a determination of the workers’ compensation commissioner, contending the district court erred in concluding he failed to substantially comply with the service requirements of Iowa Code section 17A.19(2) (2017).  OPINION HOLDS: We agree with the district court’s conclusion that Ortiz failed to substantially comply with the service requirements of section 17A.19(2) and it therefore lacked jurisdiction on judicial review.  We therefore affirm.

Case No. 18-0048:  State of Iowa v. Larry Leroy Gross Jr.

Filed Nov 21, 2018

View Opinion No. 18-0048

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            Defendant Larry Gross Jr. challenges his guilty plea to arson in the second degree.  OPINION HOLDS: Gross’s counsel did not provide ineffective assistance of counsel by failing to file a motion in arrest of judgment.  Gross’s plea was supported by a factual basis.

Case No. 18-0137:  State of Iowa v. Saul Gonzalez

Filed Nov 21, 2018

View Opinion No. 18-0137

            Appeal from the Iowa District Court for Polk County, Becky Goettsch, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (6 pages)

            Saul Gonzalez appeals the denial of his motion in arrest of judgment following his plea of guilty to driving while barred as a habitual offender.  OPINION HOLDS: Because Gonzalez has not provided clear and convincing evidence that no reasonable fact finder could convict him of the offense to which he pled guilty, his actual-innocence claim fails.  We affirm.

Case No. 18-0188:  State of Iowa v. Ellis Charles Carpenter

Filed Nov 21, 2018

View Opinion No. 18-0188

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (6 pages)

            Ellis Carpenter appeals after pleading guilty to domestic abuse assault.  OPINION HOLDS: Because the record before the district court at the time of the plea sufficiently establishes a factual basis for the charge, Carpenter’s counsel was not ineffective in allowing him to plead guilty.  The record shows an assault occurred between household members residing together at the time of the assault because Carpenter admitted the person with whom he had offensive contact would qualify as a “domestic partner.”  The record is also sufficient to establish that the offensive contact occurred without justification. 

Case No. 18-0360:  In re the Marriage of Enke

Filed Nov 21, 2018

View Opinion No. 18-0360

            Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            A mother appeals the ruling on a petition to modify child custody, awarding physical care to the father.  OPINION HOLDS: We find there is a substantial change in circumstances warranting modification and that the father has proven he can provide superior care for the children. 

Case No. 18-0400:  City of Monticello, Iowa v. Employment Appeal Board

Filed Nov 21, 2018

View Opinion No. 18-0400

            Appeal from the Iowa District Court for Jones County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            A city appeals the judicial review order upholding the grant of unemployment benefits to a former employee.  OPINION HOLDS: Because there was substantial evidence for the agency’s finding of facts and because the agency correctly applied the law to the facts, we affirm.

Case No. 18-0780:  State of Iowa v. Clarence M. Ford, III

Filed Nov 21, 2018

View Opinion No. 18-0780

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  SENTENCE VACATED IN PART AND REMANDED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A defendant challenges the district court’s determination that he is reasonably able to pay restitution.  OPINION HOLDS: Because the record does not contain any evidence supporting the district court’s finding that the defendant is reasonably able to pay restitution, that portion of the sentence is vacated.

Case No. 18-1160:  In the Interest of M.W. and P.W., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1160

           Appeal from the Iowa District Court for Pocahontas County, Joseph McCarville, District Associate Judge.  REVERSED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

           Following the entry of a dispositional order, a father appeals a prior juvenile court order adjudicating his children to be children in need of assistance (CINA).  He complains the CINA petition did not provide him with constitutionally adequate notice of the specific acts or omissions he was alleged to have engaged in that would support adjudication under Iowa Code section 232.2(6)(c)(1) (2017).  OPINION HOLDS: We find the notice provided to the father in this case was constitutionally inadequate.  We therefore reverse the orders of adjudication, without prejudice. 

Case No. 18-1161:  In the Interest of A.G., Minor Child

Filed Nov 21, 2018

View Opinion No. 18-1161

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            A father appeals the termination of his parental rights in his daughter.  OPINION HOLDS: The State proved by clear and convincing evidence the statutory grounds authorizing the termination of the father's parental rights.  The termination was in the best interest of the child.

Case No. 18-1216:  In the Interest of E.R., Minor Child

Filed Nov 21, 2018

View Opinion No. 18-1216

            Appeal from the Iowa District Court for Plymouth County, Julie Schumacher, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (10 pages)

            A mother appeals the order modifying the dispositional order in a child-in-need-of-assistance proceeding.  OPINION HOLDS: A. Because the juvenile court did not continue the dispositional order past the statutory limit, it properly denied the mother’s motion to terminate the dispositional order on this basis.  B. Clear and convincing evidence established the grounds for modifying the dispositional order to transfer legal custody of the child because the efforts made to effect the purposes of the dispositional order had been unsuccessful and the child was at risk of suffering harmful effects as a result of a mental injury if the child remained in the mother’s care.  C. The juvenile court properly imposed terms and conditions on the mother as part of its dispositional order. 

Case No. 18-1375:  In the Interest of L.T., A.T., and D.T., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1375

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (9 pages)

            A mother appeals the termination of her parental rights to three children.  The mother does not dispute the existence of the grounds for termination.  However, she does challenge the cessation of reasonable efforts by the department of human services (DHS) upon the juvenile court’s oral statement of termination of parental rights in May 2017.  She also asserts the juvenile court erred in denying her July 1, 2018 motion to reopen the record and in failing to give her additional time to seek reunification with her children.  OPINION HOLDS: We express our displeasure with the juvenile court’s excuses for failing to provide a timely written order terminating the mother’s parental rights.  We will not prolong any further the children’s family insecurity.  We conclude the DHS reasonably ceased providing services after the court’s oral rendition of its ruling.  It was well beyond a reasonable time to consider additional evidence. 

Case No. 18-1536:  In the Interest of C.P. and L.P., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1536

 

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            A mother and father appeal the order terminating their parental rights in their two children.  OPINION HOLDS: Substantial evidence supports the statutory grounds authorizing termination of the mother and father’s parental rights.  The termination is in the best interest of the children.

Case No. 18-1558:  In the Interest of J.M., Minor Child

Filed Nov 21, 2018

View Opinion No. 18-1558

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find an extension to work toward reunification is not warranted, the evidence supports termination, termination is in the child’s best interest, and no exceptions apply.  We affirm the juvenile court.

Case No. 18-1595:  In the Interest of T.J., Minor Child

Filed Nov 21, 2018

View Opinion No. 18-1595

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS:  Upon our de novo review, we find the State proved grounds for termination under Iowa Code section 232.116(1)(f) (2018); it is in the child’s best interests to terminate parental rights; and relative placement does not obviate the need for termination in this case.  We affirm termination of the mother’s parental rights. 

Case No. 18-1606:  In the Interest of J.W., Minor Child

Filed Nov 21, 2018

View Opinion No. 18-1606

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  Special Concurrence by Vaitheswaran, J.  (5 pages)

                J.W. was found to be a child in need of assistance based on the mother’s neglect of J.W.  Following an adjudication and dispositional hearing, the father of J.W. appeals.  He asserts the district court could not “remove” the child from him because he had no actual or legal custody of the child.  OPINION HOLDS: We find this issue is not ripe for review.  We therefore affirm the adjudicatory and dispositional order of the district court.  SPECIAL CONCURRENCE ASSERTS: I believe the issue of the child’s removal from the father is ripe for review.  I would affirm the removal order contained within the dispositional order on the merits; the child was formally removed from the father, and the father conceded he was not in a position to assume custody of her.

Case No. 18-1611:  In the Interest of E.R. Jr. and E.R., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1611

           Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (6 pages)

           A father appeals the termination of his parental rights.  He claims termination is not in the children’s best interests, a statutory exception to termination applies, and he should be given additional time to work toward reunification.  OPINION HOLDS: The father waived his best-interests claim, no statutory exceptions to termination apply, and an extension is not warranted under the circumstances of this case.  We therefore affirm the order terminating the father’s parental rights.

Case No. 18-1619:  In the Interest of C.W., J.W., D.W., and A.W., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1619

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Tabor, J., takes no part.  Opinion by Vaitheswaran, J.  (5 pages). 

            A mother and father appeal the termination of their parental rights to their children.  OPINION HOLDS: Clear and convincing evidence supports termination, the department did not violate its reasonable-efforts mandate, termination was in the children’s best interests, and an extension of time was not warranted.  We affirm the termination of the parents’ rights to their children.

Case No. 18-1669:  In the Interest of E.B., D.B., and E.B., Minor Children

Filed Nov 21, 2018

View Opinion No. 18-1669

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Danilson, C.J.  (10 pages)

            The mother and father of three children separately appeal from the termination of their parental rights.  Both contend there was not clear and convincing evidence their children could not be returned to their care at the time of the termination hearing.  OPINION HOLDS: Upon our de novo review, we find clear and convincing evidence supports the termination of both parents’ parental rights and affirm.  

Case No. 16-2112:  Jimmy Dean Stevens v. State of Iowa

Filed Nov 07, 2018

View Opinion No. 16-2112

           Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (12 pages)

            Jimmy Stevens appeals the district court’s denial of his application for postconviction relief (PCR), contending the district court erred in concluding retroactive application of Rhoades v. State, 848 N.W.2d 22 (Iowa 2014), is not required by the due process clause of the state constitution and the equal protection clauses of the federal and state constitutions.  Alternatively, he argues his PCR counsel rendered ineffective assistance in failing to urge retroactive application of Rhoades on nonconstitutional common law grounds.  OPINION HOLDS: We find Stevens was not denied due process or equal protection and PCR counsel was not ineffective as alleged.  We affirm the district court’s denial of Stevens’s PCR application. 

Case No. 17-0531:  State of Iowa v. Paul R. Knudsen

Filed Nov 07, 2018

View Opinion No. 17-0531

            Appeal from the Iowa District Court for Grundy County, Joel A. Dalrymple, Judge.  JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED FOR ENHANCEMENT HEARING, SENTENCING, AND JUDGMENT.  Heard by Vogel, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J. (22 pages)

            Paul Knudsen challenges his convictions and sentences for three counts of sexual abuse in the third degree and one count of lascivious conduct with a minor.  Knudsen challenges the sufficiency of the evidence to support one of his convictions for sexual abuse in the third degree, claims the court wrongly applied the rape-shield law to prevent the admission of evidence of prior allegations of sexual abuse made by the complaining witnesses, and maintains the court abused its discretion in preventing the defense’s expert from testifying that three-way sexual abuse involving the mother is rare.  He also maintains he did not knowingly and voluntarily enter into the stipulation that he was subject to the sentencing enhancements.  OPINION HOLDS: Substantial evidence supports Knudsen’s challenged conviction for sexual abuse in the third degree, the district court did not wrongly apply the rape-shield law to prevent the further introduction of evidence regarding prior sexual abuse perpetrated against A.M., and the district court did not abuse its discretion when it prevented the defense’s proposed expert from testifying how “rare” the type of sexual abuse described by A.M. occurs.  However, because we cannot say Knudsen entered into the prior-offense stipulation knowingly and voluntarily, we reverse the judgments and sentences of the district court.  On remand, Knudsen may enter into a new stipulation regarding the prior offense compliant with State v. Harrington, 893 N.W.2d 36, 45–47 (Iowa 2017), or may choose to proceed to trial to determine whether he meets the enhancement requirements.

Case No. 17-0593:  In re the Marriage of Gutcher

Filed Nov 07, 2018

View Opinion No. 17-0593

            Appeal from the Iowa District Court for Monroe County, Randy S. DeGeest, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Heard by Danilson, C.J., and Doyle and McDonald, JJ.  Opinion by McDonald, J.  Special Concurrence by Danilson, C.J.  (17 pages)

            The parties appeal and cross-appeal various provisions of their dissolution decree.  The wife also appeals the district court’s dismissal of her contempt action.  OPINION HOLDS: The parties’ premarital agreement is unenforceable because the wife did not have any appreciable time to seek counsel prior to signing and the husband failed to make a fair and reasonable financial disclosure.  The district court’s spousal support award was not proper because the present facts do not warrant any of the recognized categories of support.  The court’s determination that the husband’s premarital property was gifted or inherited was incorrect.  To do equity, the parties’ assets, including pre-martial, must be divided equally between the parties through a property equalization payment.  The district court did not abuse its discretion in awarding the wife only a portion of her requested attorney fees.  Because the wife failed to show the husband did not preserve assets, the district court properly dismissed her contempt action.  We remand to the district court to determine appellate attorney fees not to exceed $6000.00.  SPECIAL CONCURRENCE ASSERTS: I concur in the result; however, I part ways with the majority’s reasoning. 

Case No. 17-0678:  In re the Marriage of Agan

Filed Nov 07, 2018

View Opinion No. 17-0678

            Appeal from the Iowa District Court for Madison County, Richard B. Clogg, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., Doyle, J., and Scott, S.J.  Opinion by Danilson, C.J.  (26 pages)

            Stephen (Steve) Agan appeals and Julianne (Juli) Agan cross-appeals from various provisions of the decree dissolving their marriage.  Steve argues the dissolution court inequitably valued and divided the marital property.  Juli argues the court erred in valuing the pastureland.  Neither party challenges the distribution of property, rather both raise various issues to support their contention that the equalization award was inequitable.  Steve also requests appellate attorney fees.  OPINION HOLDS: Upon our de novo review of the decree, we modify the dissolution decree to account for various gifted monies and conclude the equalization payment to Juli from Steve shall be in the amount of $80,000.  We do not award appellate attorney fees.

Case No. 17-0718:  Thunder & Lightning, Inc. v. 435 Grand Avenue, LLC, d/b/a 435 E. Grand Ave., LLC, Santokh Nagra, Peter Sand, and Loyd Ogle

Filed Nov 07, 2018

View Opinion No. 17-0718

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  REVERSED AND REMANDED; WRIT ANNULLED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (17 pages)

            This appeal consolidates Thunder & Lightning, Inc.’s direct appeal of the order dismissing its trespass claims against the defendants and a certiorari action concerning an order awarding sanctions against Thunder & Lightning and its attorney for violating Iowa Rule of Civil Procedure 1.413.  OPINION HOLDS: I. Because the defendants entered the leased premises without consent, Thunder & Lightning proved the defendants committed trespass.  Accordingly, we reverse the dismissal of its claims for trespass and conspiracy to commit trespass and remand to the district court to determine the amount of Thunder & Lightning’s damages.  II. Because the district court did not abuse its discretion in sanctioning Thunder & Lightning and its attorney for violating rule 1.413 by failing to conduct a reasonable inquiry before initiating a contempt action, we annul the writ of certiorari.

Case No. 17-0770:  In re the Marriage of Naylor

Filed Nov 07, 2018

View Opinion No. 17-0770

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (13 pages)

            Ashley Naylor challenges the property division and spousal support arising out of the dissolution of her marriage.  OPINION HOLDS: The district court’s property division and award of spousal support were equitable.

Case No. 17-0908:  Sharon K. Susie, an individual and Larry D. Susie v. Family Health Care of Siouxland, P.L.C. d/b/a Family Health Care of Siouxland Urgent Care and Sarah Harty

Filed Nov 07, 2018

View Opinion No. 17-0908

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  Dissent by McDonald, J.  (24 pages)

            Sharon and Larry Susie appeal the district court decision granting summary judgment to defendants in this medical malpractice action.  OPINION HOLDS: We determine the district court improperly granted summary judgment to defendants on the issue of negligence and the issue of lost chance of a cure.  Plaintiffs presented adequate expert testimony on a causal relationship between the defendants’ actions and the injury sustained.  We reverse the decision of the district court and remand for further proceedings.  DISSENT ASSERTS: The district court correctly granted the defendants' motion for summary judgment.  The plaintiffs failed to establish a prima facie case of medical malpractice.

Case No. 17-0939:  Lauren Sherrick v. Obstetrics & Gynecology Specialists, P.C.

Filed Nov 07, 2018

View Opinion No. 17-0939

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Lauren Sherrick appeals from two evidentiary rulings made during her medical malpractice suit against Obstetrics & Gynecology Specialists, P.C.  OPINION HOLDS: Finding no error in the district court’s exclusion of Dr. Abbey Hardy-Fairbanks’s improper expert opinion testimony, and no prejudice in the admission of Nurse Cindy Ramsay’s cumulative testimony, we affirm.

Case No. 17-0983:  Patricia Moore v. Winneshiek Medical Center and Mayo Clinic Health System-Decorah Clinic

Filed Nov 07, 2018

View Opinion No. 17-0983

            Appeal from the Iowa District Court for Winneshiek County, Richard D. Stochl, Judge.  AFFIRMED ON BOTH APPEALS.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (9 pages)

            Defendants appeal following a jury verdict in favor of the plaintiff on her medical malpractice claim.  OPINION HOLDS: Because the plaintiff generated a fact question on causation and breach of the standard of care, the district court did not err in denying the defense motions for judgment notwithstanding the verdict on these elements.

Case No. 17-1035:  State of Iowa v. Richard Ryan Lamb Carson

Filed Nov 07, 2018

View Opinion No. 17-1035

            Appeal from the Iowa District Court for Clarke County, John D. Lloyd, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  Special Concurrence by Vaitheswaran, J.  (19 pages)

            A jury found Richard Ryan Lamb Carson guilty of two counts of first-degree murder.  Carson appeals his convictions and sentence after the district court denied his motion for a mistrial.  He claims the prosecutor made multiple comments during closing arguments that denied him the right to a fair trial.  He further asserts his counsel provided ineffective assistance by failing to object to the prosecutor’s questions during cross-examination.  OPINION HOLDS: We conclude the defendant was not prejudiced by the prosecutor’s comments.  Additionally, we preserve the issue of ineffective assistance of counsel for possible postconviction relief.  SPECIAL CONCURRENCE ASSERTS: While the prosecution’s statements, in my view, violated standards carefully laid out in State v. Graves, 668 N.W.2d 860 (Iowa 2003), the strength of the State’s evidence was such that Carson cannot show prejudice.  Therefore, I agree he was not entitled to a new trial.

Case No. 17-1118:  Eric N. Lucy v. Platinum Services, Inc., now known as Platinum Supplemental Insurance, Inc., and Wayne Briggs

Filed Nov 07, 2018

View Opinion No. 17-1118

           Appeal from the Iowa District Court for Dubuque County, Monica L. Wittig, Judge.  AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.  Considered by Doyle, P.J., and Tabor and McDonald, JJ.  Opinion by McDonald, J.  (11 pages)

            Both plaintiff, Eric Lucy, and defendants, Platinum Services, Inc. and Wayne Briggs, appeal the district court’s ruling on summary judgment regarding a contract dispute.  OPINION HOLDS: The two contracts at issue, one between Lucy and Platinum and another between Lucy and Briggs, do not incorporate each other.  Briggs may not cease payments upon Lucy’s breach of a non-compete covenant between Lucy and Platinum.  The term of the relevant non-compete covenant is two years.

Case No. 17-1191:  In re the Marriage of Bechthold

Filed Nov 07, 2018

View Opinion No. 17-1191

           Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED IN PART AND AFFIRMED AS MODIFIED IN PART ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (27 pages)

           Darren Bechthold appeals, and Angela Bechthold cross-appeals, a decree of dissolution of marriage.  Darren challenges the tax-liability, property-distribution, child-support, spousal-support, and attorney-fee provisions of the decree as inequitable.  Angela argues the awards of spousal support and attorney fees in her favor are inadequate, the district court’s consideration of new evidence in conjunction with Darren’s post-trial motions was improper, and Darren’s child-support obligation should be increased on appeal in light of new Iowa Court Rule 9.11A.  Angela seeks an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s decree, but modify it in several respects.  We modify the district court’s decree to provide Darren shall be responsible for sixty-one percent and Angela shall be responsible for thirty-nine percent of the parties’ tax liability resulting from the sale of farm assets for tax year 2016, with Angela’s share paid by a reduction in the equalization payment due from Darren.  We modify Darren’s equalization payment to Angela to $173,706.46, as reduced by her share of the tax liability.  We decline to increase the equalization payment upon Angela’s argument that Darren dissipated the assets of the marital estate by purchasing jewelry for his girlfriend.  We modify the decree by holding each party is entitled to substantially similar marital-share survivor benefits in one another’s pensions.  We affirm the spousal-support award in favor of Angela in the amount of $500.00 per month.  We modify the decretal child-support amounts to $1353.03 for three children, $1183.60 for two children, and $821.71 for one child.  We find Angela’s request that we increase Darren’s child-support obligation on appeal in light of new Iowa Court Rule 9.11A is not supported by substantial evidence and therefore deny the request.  We affirm the district court’s allocation of expenses in addition to child support for the child under shared physical care.  We affirm the district court’s award of trial attorney fees and deny Angela’s request for appellate attorney fees.  Costs on appeal are assessed equally between the parties. 

Case No. 17-1198:  Jaks Properties, LLC v. St. Croix Hospice, LLC

Filed Nov 07, 2018

View Opinion No. 17-1198

            Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  REVERSED WITH DIRECTIONS.  Heard by Danilson, C.J., and Potterfield and Doyle JJ.  Opinion by Danilson, C.J. (19 pages)

            JAKS Properties, LLC appeals from the district court’s adverse ruling on cross-motions for summary judgment in its suit against St. Croix Hospice, LLC.  OPINION HOLDS: We conclude St. Croix did not waive arbitration procedures, St. Jude Healthcare, LLC is a necessary party to this action, and the proper relief for failing to bring in a necessary party is for the court to order the party brought in.  Because the court dismissed the action, we reverse and remand to the district court with directions to order St. Jude brought into the suit.

Case No. 17-1215:  In re the Marriage of Golwitzer

Filed Nov 07, 2018

View Opinion No. 17-1215

            Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, Judge.  AFFIRMED AS MODIFIED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Opinion by Vaitheswaran, J.  (7 pages)

            Stephanie Golwitzer appeals the provisions of the dissolution decree of her marriage to Keith Michael Golwitzer (Mike), seeking an increase in the amount and duration of her alimony award and an increase in the amount of her trial-attorney fee award.  Both parties request an award of appellate attorney fees.  OPINION HOLDS: We modify the spousal support award to increase the duration.  The spousal support award shall continue until the death of either party or Stephanie’s remarriage.  We discern no abuse of discretion in in the district court’s award of one-third the amount requested by Stephanie for trial attorney fees.  We order Mike to pay $3000 towards Stephanie’s appellate attorney-fee obligation.  We deny Mike’s request for attorney fees.

Case No. 17-1252:  In re the Marriage of Baccam and Onmanivong

Filed Nov 07, 2018

View Opinion No. 17-1252

            Appeal from the Iowa District Court for Polk County, David M. Porter and Lawrence P. McLellan, Judges.  AFFIRMED AS MODIFIED..  Considered by Mullins, P.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J.  Dissent by McDonald, J.  (25 pages)

            Khampha Onmanivong appeals the decree dissolving his marriage to Line Nang Baccam, challenging the finding of the existence of a common law marriage and the spousal support provisions of the decree.  OPINION HOLDS: I. Line has met her burden of proving the existence of a common law marriage.  II. Although the length of the marriage does not cross the “durational threshold” for awards of traditional spousal support, the facts of this case warrant such an award because Line’s need to be available to care for the children, especially the younger child who has special needs, reduces her ability to reach her actual earning capacity.  However, we reduce the amount of the spousal support award based on Line’s need and Khampha’s ability to pay.  III. The division of property is equitable under the facts of this case.  IV. Because the children’s needs prevent Line from working fulltime, it is proper to calculate child support using her income rather than her earning capacity.  V. Because the parties have an equal ability to pay, we modify the decree to eliminate the award of trial attorney fees.  DISSENT ASSERTS: I respectfully dissent from the award of alimony.  None of the generally-recognized categories of alimony are applicable here. 

Case No. 17-1301:  State of Iowa v. Kenneth Osborne Ary

Filed Nov 07, 2018

View Opinion No. 17-1301

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Kenneth Ary appeals his three convictions for delivery of a controlled substance (crack cocaine).  He maintains the district court erred on remand when it denied his second motion for new trial.  Additionally, he argues the judge on remand, who was the same judge that presided over his trial, should have granted his motion to recuse.  OPINION HOLDS: The district court issued a sufficiently detailed order denying the motion for new trial and did not abuse its discretion in denying Ary’s motion for new trial based on the weight of the evidence.  Because we do not have the proper record before us, we are unable to review Ary’s challenge to the district court’s denial of his motion to recuse.  We affirm.

Case No. 17-1395:  Urbandale Best, LLC and Urbandale West, LLC v. R & R Real Estate Investors, LLC, R & R Realty Group, LLC, and PMR Realty Group, LLC

Filed Nov 07, 2018

View Opinion No. 17-1395

           Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (7 pages)

           Plaintiff appeals from the district court’s denial of its motion for a post-procedendo order to enforce a contractual remedy or, in the alternative, grant it leave to file a supplemental pleading.  OPINION HOLDS: Our previous opinion resolved the matter of the remedy for the breach of fiduciary duty and provided the district court only the authority to enter an order enforcing that remedy.  The district court was without authority to revisit and decide any additional remedies.  We therefore affirm the district court’s denial of the motion for an order to enforce other contractual remedies and denial of leave to file a supplemental pleading.

Case No. 17-1418:  State of Iowa v. Chance Wetter

Filed Nov 07, 2018

View Opinion No. 17-1418

           Appeal from the Iowa District Court for Sioux County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (7 pages)

           Chance Wetter appeals his conviction, following a bench trial, of third-degree sexual abuse.  He argues the district court misapplied the law in denying his motion for judgment of acquittal at the close of evidence when it concluded there was sufficient evidence that he and a minor were not cohabiting as husband and wife at the time of the underlying sex act.  OPINION HOLDS: We conclude the evidence was sufficient and affirm Wetter’s conviction of sexual abuse in the third degree.

Case No. 17-1443:  State of Iowa v. Charles Paul Phipps

Filed Nov 07, 2018

View Opinion No. 17-1443

            Appeal from the Iowa District Court for Poweshiek County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (10 pages)

            Charles Phipps appeals his conviction for possession of methamphetamine, third offense.  OPINION HOLDS:  We find Phipps has not shown the district court abused its discretion in denying his motion for new trial based on his claims he was required to wear jail-issued footwear for the trial, there was newly discovered evidence someone else manufactured methamphetamine at his former residence, or the State failed to disclose exculpatory evidence.  We affirm Phipps’s conviction for possession of methamphetamine, third offense.

Case No. 17-1481:  In re the Matter of the Guardianship of M.I.D., Minor Child

Filed Nov 07, 2018

View Opinion No. 17-1481

           Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (14 pages)

           A father, Korey, appeals the denial of his petition to terminate guardianship of his minor child.  He contends that he has the fundamental right to parent his child and there is a statutory parental preference for a child’s placement.  He argues his parental preference was not overcome and the reason for the guardianship no longer exists.  Korey further contends the court erred in giving weight to the guardian ad litem and therapist’s evidence.  Both Korey and the guardians seek appellate attorney fees.  OPINION HOLDS: We find Korey’s parental presumption has been rebutted and it is in the child’s best interests for the guardianship to continue and for the child to remain in the guardians’ custody.  We affirm the district court’s order denying Korey’s petition to terminate the guardianship.  We decline to award appellate attorney fees.

Case No. 17-1539:  In re the Detention of Thomas G. Ruthers, Jr.

Filed Nov 07, 2018

View Opinion No. 17-1539

            Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson and Joel D. Yates, Judges.  REVERSED AND REMANDED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  Partial Dissent by Danilson, C.J.  (15 pages)

                Thomas Ruthers Jr. appeals from a judgment finding him to be a sexually violent predator (SVP) under Iowa Code chapter 229A (2011).  Ruthers contends the district court should have granted his motions to dismiss and his motion for summary judgment because he was not presently confined for a “sexually violent offense,” within the meaning of Iowa Code section 229A.2(10)(g), at the time the State filed its petition, and the court similarly erred in finding him to be a SVP.  OPINION HOLDS: Ruthers was not “presently confined”—within the meaning of section 229A.4(1)—at the time the State filed the SVP petition.  Additionally, the act the State alleged was the necessary “recent over act” was no longer “recent” at the time of the SVP commitment hearing.  We reverse the district court’s ruling and remand for dismissal of the SVP action.  PARTIAL DISSENT ASSERTS: I agree with the majority with respect to the conclusion that Ruthers was not presently confined.  I am unable or unwilling to accept that the State can avoid proving a recent overt act simply because Ruthers was unable to post bail.  I part ways with the majority, however, and would affirm on the basis that the State established a recent overt act.

Case No. 17-1562:  In re the Marriage of Tassinari

Filed Nov 07, 2018

View Opinion No. 17-1562

            Appeal from the Iowa District Court for Wright County, Gregg R. Rosenbladt, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J. (12 pages)

            Steven Tassinari appeals the economic provisions of the district court’s decree dissolving his marriage to Sarah Tassinari.  OPINION HOLDS: Upon our de novo review of the record, considering all relevant factors, we find division of the marital assets between Steven and Sarah should be equal.  Steven should be awarded another $18,204.91 to balance the ledger sheet.  Consequently, we modify the district court’s decree by increasing the equalization payment to Steven to $129,075.31.  We affirm in all other respects.

Case No. 17-1636:  State of Iowa v. Jerrell M. Wilson

Filed Nov 07, 2018

View Opinion No. 17-1636

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Jerell Wilson appeals from a jury trial wherein he was found guilty of (1) operating a vehicle while intoxicated, (2) eluding in the first degree, and (3) vehicular homicide by reckless driving or eluding, contending insufficiency of the evidence and failure to merge his OWI conviction with his eluding conviction.  OPINION HOLDS: We hold because substantial evidence supported the jury’s findings, Wilson’s attorney did not breach an essential duty by failing to move for judgment of acquittal on grounds of failure to prove recklessness or causation.  We also conclude the district court did not err in failing to merge the OWI conviction with the eluding conviction.

Case No. 17-1657:  State of Iowa v. Thomas Ray Davis

Filed Nov 07, 2018

View Opinion No. 17-1657

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  Dissent by McDonald, J.  (5 pages)

            The district court treated Thomas Davis’s second motion to correct an illegal sentence—filed shortly after Davis was resentenced due to a meritorious first motion to correct an illegal sentence—as an appeal.  OPINION HOLDS: We disagree with the district court’s treatment of the motion as an appeal; we reverse and remand to the district court for ruling on the second motion.  DISSENT ASSERTS: I would dismiss the appeal for lack of appellate jurisdiction.

Case No. 17-1692:  State of Iowa v. Timothy Leture Chew

Filed Nov 07, 2018

View Opinion No. 17-1692

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  CONVICTIONS AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (21 pages)

            Timothy Chew was convicted of assault with intent to inflict serious injury and going armed with intent.  Chew appeals, arguing the district court improperly instructed the jury and unreasonably set his appeal bond at $750,000, cash only.  OPINION HOLDS: Finding no prejudice resulting from the jury instructions, we affirm Chew’s convictions.  But because the district court abused its discretion in functionally denying Chew bail, we vacate the appeal bond order.

Case No. 17-1724:  State of Iowa v. Trenton D. Shelton

Filed Nov 07, 2018

View Opinion No. 17-1724

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (6 pages)

            Trenton D. Shelton appeals his convictions for willful injury resulting in serious injury and assault while participating in a felony.  OPINION HOLDS: We find the record does not provide sufficient factual basis of the underlying felony of the assault charge to support his guilty plea.  On remand, the court should address potential deficiencies in the plea colloquy.  We vacate and remand for further proceedings.

Case No. 17-1851:  State of Iowa v. Alfred Joe Ray Gomez

Filed Nov 07, 2018

View Opinion No. 17-1851

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  CONVICTION AFFIRMED.  SENTENCE VACATED.  CASE REMANDED FOR RESENTENCING.  Considered by Bower, P.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J. (5 pages)

            Alfred Joe Ray Gomez appeals the judgment and sentence entered after he entered an Alford plea to operating a motor vehicle while under the influence (OWI), third offense, as an habitual offender.  OPINION HOLDS: I. Gomez contends his trial counsel was ineffective in failing to file a motion in arrest of judgment challenging the knowing and voluntary nature of his plea.  As it relates to the habitual-offender enhancement, his challenge is moot.  As it relates to the OWI, third offense conviction, the record is insufficient for us to conclude that, but for the claimed deficiency, Gomez would have insisted on trial rather than entering his plea.  Therefore, we preserve his ineffective-assistance claim for potential postconviction proceedings for purposes of the OWI, third offense conviction.  II. Applying the habitual-offender enhancement to the sentence for OWI, third offense is an illegal sentence not authorized by statute.        

Case No. 17-1915:  Bank of America, N.A. v. John Salerno

Filed Nov 07, 2018

View Opinion No. 17-1915

            Appeal from the Iowa District Court for Jefferson County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (4 pages)

            John Salerno appeals the district court summary judgment ruling in a suit brought by Bank of America, N.A. to recover on a defaulted credit card account.  OPINION HOLDS: We affirm the district court.

Case No. 17-1947:  Miguel Antonio Hernandez v. Deena Jo Mills

Filed Nov 07, 2018

View Opinion No. 17-1947

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            A mother challenges the district court’s award of physical care of her children to their father.  OPINION HOLDS:  The issues of custody, visitation, and support were properly before the district court.  The court acted in equity in determining that awarding physical care to the father was in the best interest of the children.

Case No. 17-2036:  State of Iowa v. Keysean Damour Chumley

Filed Nov 07, 2018

View Opinion No. 17-2036

            Appeal from the Iowa District Court for Polk County, David N. May, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (6 pages)

            The defendant appeals his conviction for felony eluding after pleading guilty.  OPINION HOLDS: Because there was a sufficient factual basis for the district court to accept the guilty plea, we affirm.

Case No. 17-2037:  State of Iowa v. Bobby Joe Morris

Filed Nov 07, 2018

View Opinion No. 17-2037

            Appeal from the Iowa District Court for Des Moines County, John G. Linn and Mary Ann Brown, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (11 pages)

            Bobby Joe Morris appeals his convictions and sentence for robbery in the second degree, unauthorized use of a credit card, and ongoing criminal conduct.  OPINION HOLDS: We find Morris’s plea had an adequate factual basis, preserve his other claims of ineffective assistance of counsel for postconviction action, and find the district court did not abuse its discretion during sentencing.  We affirm his convictions and sentence.

Case No. 17-2056:  State of Iowa v. Mubarak Matta Mubarak

Filed Nov 07, 2018

View Opinion No. 17-2056

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            Mubarak Mubarak appeals his conviction for robbery in the first degree.  He argues insufficient evidence supports his conviction and his sentence is illegal as being grossly disproportional.  OPINION HOLDS: We find the State presented sufficient evidence to identify Mubarak as the perpetrator and his sentence is not illegal as being disproportionate to the crime.

Case No. 18-0278:  Michael Lee Buckley v. State of Iowa

Filed Nov 07, 2018

View Opinion No. 18-0278

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Michael Buckley appeals the denial of his application for postconviction relief arguing ineffective assistance of plea counsel.  OPINION HOLDS: We affirm the denial of Buckley’s postconviction-relief application.

Case No. 18-0393:  In the Matter of T.K., Alleged to be Seriously Mentally Impaired

Filed Nov 07, 2018

View Opinion No. 18-0393

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            T.K. challenges the court’s finding clear and convincing evidence of serious mental impairment.  She disputes the finding she poses a threat to herself or others if allowed to remain at liberty without treatment.  OPINION HOLDS: Because we find substantial evidence supports the district court’s findings, we affirm.

Case No. 18-0557:  In re the Marriage of Racette

Filed Nov 07, 2018

View Opinion No. 18-0557

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

            Patrick Racette appeals from the order modifying the joint physical care provision of his divorce decree with Keri Racette.  OPINION HOLDS: We find the district court’s factual determinations are supported by the record, and we agree with the district court’s order finding a substantial change in circumstances and placing the children in Keri’s physical care.

Case No. 18-1146:  In the Interest of I.M., S.G., K.G., and K.G., Minor Children

Filed Nov 07, 2018

View Opinion No. 18-1146

           Appeal from the Iowa District Court for Calhoun County, Joseph B. McCarville, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

           Following the entry of a dispositional order, a mother appeals prior juvenile court orders adjudicating her children to be children in need of assistance and temporarily removing the children from her care.  She claims she was denied due process in relation to the adjudication hearing, challenges the sufficiency of the evidence for adjudication under Iowa Code section 232.2(6)(c)(2) (2018), and argues the court erred in temporarily removing the children after adjudication.  OPINION HOLDS: We find the mother has failed to preserve error on her due process claim, the State met its burden for adjudication, and the issue of temporary removal was rendered moot by the entry of a subsequent dispositional order confirming removal.  We therefore affirm. 

Case No. 18-1390:  In the Interest of T.J.M., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1390

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (11 pages)

            Intervenors, the maternal aunt and her husband, appeal the juvenile court decision removing the Iowa Department of Human Services (DHS) as the guardian of a child and placing the child in the guardianship of other relatives.  OPINION HOLDS: We conclude DHS did not act unreasonably, irresponsibly, or contrary to the best interests of the child when it determined the child should be permanently placed in the home of the maternal aunt.  We reverse the juvenile court’s decision removing DHS as the guardian of the child and placing the child in the guardianship and custody of the maternal great-uncle.

Case No. 18-1425:  In the Interest of J.H., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1425

            Appeal from the Iowa District Court for Cedar County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (6 pages)

            The father appeals the termination of his parental rights to J.H.  He argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(h), (n), and (m) (2018).  OPINION HOLDS: Since the child need not be removed from both parents to satisfy the grounds and the child was removed from the father’s custody, we conclude the State proved by clear and convincing evidence the grounds for termination of the father’s parental rights. 

Case No. 18-1505:  In the Interest of M.T., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1505

            Appeal from the Iowa District Court for Keokuk County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A mother seeks reversal or modification of juvenile court orders adjudicating her child as in need of assistance (CINA) and removing the child from the mother’s care.  OPINION HOLDS: We conclude the evidence supports the CINA adjudication and we affirm the dispositional order of the juvenile court. 

Case No. 18-1515:  In the Interest of K.S., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1515

            Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (5 pages)

            The mother appeals the termination of her parental rights to her child, K.S., born in 2017.  The juvenile court terminated the mother’s parental rights pursuant to Iowa Code section 232.116(1)(g), (h), and (l) (2018).  On appeal, the mother claims there is not clear and convincing evidence to support the statutory grounds for termination, she should be given an additional six months to work toward reunification, termination is not in the child’s best interests, and the parent-child bond weighs against termination.  OPINION HOLDS: We affirm the termination of the mother’s parental rights because K.S. could not be returned to the mother’s care at the time of the termination hearing, we cannot say the mother would be in a better position to care for K.S. if given a six-month extension, termination of the mother’s rights is in K.S.’s best interests, and no factor weighs against it.  

Case No. 18-1524:  In the Interest of P.J., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1524

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (8 pages)

            The mother and father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: Clear and convincing evidence supports termination under Iowa Code section 232.116(1)(f) (2017).  We also find termination is in the best interests of the child, and the State expended reasonable efforts toward reunification.  Accordingly, we affirm the termination of both the mother’s and the father’s parental rights.

Case No. 18-1556:  In the Interest of O.C., Minor Child

Filed Nov 07, 2018

View Opinion No. 18-1556

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: The mother’s failure to challenge the termination of her parental rights in the juvenile court constitutes the failure to preserve error and/or waiver.  Even assuming the mother had preserved error or not waived her claims, clear and convincing evidence shows the DHS met its statutory “reasonable efforts” obligation under section 232.102(7) (2018), termination of the mother’s parental rights is in the child’s best interests, and none of the statutory exceptions to termination apply.  We therefore affirm the juvenile court order terminating her parental rights.

Case No. 16-1425:  State of Iowa v. Isaiah Zacharias

Filed Oct 24, 2018

View Opinion No. 16-1425

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A defendant appeals his conviction of robbery in the second degree, claiming (I) there was insufficient evidence to corroborate the accomplice testimony and prove his participation in the crime and (II) the district court abused its discretion in sentencing him.  OPINION HOLDS: Upon our review, we affirm. 

Case No. 16-1855:  Ricco Fountain Thigpen v. State of Iowa

Filed Oct 24, 2018

View Opinion No. 16-1855

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Ricco Thigpen appeals the district court’s denial of his application for postconviction relief, claiming his trial attorney was ineffective in failing to call an eyewitness-identification expert at the suppression hearing and at trial.  OPINION HOLDS: We affirm the district court’s denial of the postconviction-relief application.

Case No. 17-0387:  Jamie Lee Cole v. State of Iowa

Filed Oct 24, 2018

View Opinion No. 17-0387

            Appeal from the Iowa District Court for Delaware County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            Jamie Cole appeals the denial of his motion for postconviction relief.  OPINION HOLDS: Cole’s claim that his plea counsel was ineffective is barred because Cole failed to raise that claim until this appeal. Cole’s postconviction-relief counsel was not ineffective because Cole elected to represent himself pro se. The district court substantially complied with Iowa Code section 822.7 (2015) when ruling on Cole’s application for postconviction relief.

Case No. 17-0940:  In re the Marriage of Holtkamp

Filed Oct 24, 2018

View Opinion No. 17-0940

            Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.  AFFIRMED AS MODIFIED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (15 pages)

            Ashley Holtkamp appeals from the decree dissolving her marriage to Nathan Holtkamp.  She argues the trial court erred in finding their prenuptial agreement enforceable and in establishing Nathan’s visitation schedule with the parties’ minor children.  OPINION HOLDS: Because Ashley failed to prove the prenuptial agreement was executed involuntarily, was procedurally unconscionable, or lacked a financial disclosure, we agree with the district court that the prenuptial agreement is enforceable.  Additionally, we modify the visitation schedule on Tuesday nights and weekends and otherwise agree the visitation schedule is in the best interests of the children. 

Case No. 17-0973:  State of Iowa v. Collin Rush Brantley

Filed Oct 24, 2018

View Opinion No. 17-0973

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Collin Rush Brantley appeals the district court’s imposition of a suspended sentence plus probation following his plea to possession of a controlled substance arguing that he was entitled to a deferred judgment.  OPINION HOLDS: We affirm the appellant’s conviction, judgment, and sentence.

Case No. 17-1018:  Andrew Gerth v. Iowa Business Growth, Inc. and Dan Robeson

Filed Oct 24, 2018

View Opinion No. 17-1018

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  Special Concurrence by Doyle, J.  (20 pages)

            Andrew Gerth appeals from the district court’s dismissal of his petition alleging age discrimination against his former employer, Iowa Business Growth, Inc., and former supervisor, Dan Robeson.  Gerth challenges the dismissal, but he does not dispute that the defendants were served outside of the ninety-day window.  Gerth raises the following claims: (1) He argues the district court had the discretion to grant an extension even without a showing of good cause and should have done so.  (2) Alternatively, he claims he established good cause for the delay.  As part of this argument, he claims the ninety-day window for service did not begin until the clerk’s office issued the original notice, which in this case occurred two days after Gerth initially filed the petition—making service late by one day rather than three.  He also claims the district court should have, as part of its good-cause analysis, considered the extent his rights would be prejudiced by the dismissal.  (3) Finally, Gerth claims that even if good cause is necessary for an extension and he did not establish it, dismissal was inappropriate because service was only late by three days or less and the defendants were not prejudiced by the delay.  OPINION HOLDS: Because a finding of good cause is required before the court extends the period to timely serve the defendants, and because Gerth has failed to establish good cause for the delay, we affirm the district court’s dismissal of Gerth’s petition.  SPECIAL CONCURRENCE ASSERTS: I concur based on the current precedent cited by the majority but write specially to advocate for an amendment to Iowa Rule of Civil Procedure 1.302(5) that would require the defendant show prejudice even in the absence of “good cause” on the part of the plaintiff in failing to timely serve.

Case No. 17-1087:  State of Iowa v. Jerry Darnell Mosley

Filed Oct 24, 2018

View Opinion No. 17-1087

            Appeal from the Iowa District Court for Clay County, Carl J. Peterson, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., Potterfield, J., and Blane, S.J.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Jerry Mosley appeals his convictions and sentence for first-degree burglary and assault causing bodily injury raising claims of insufficiency of evidence, ineffective assistance of counsel, failure to merge, and inappropriate imposition of restitution costs.  OPINION HOLDS: We affirm Mosley’s conviction for first-degree burglary, preserve his ineffective-assistance claim for postconviction proceedings, and vacate his sentence, remanding for merger of the assault and burglary convictions.

Case No. 17-1097:  State of Iowa v. Beau Tremaine Berge

Filed Oct 24, 2018

View Opinion No. 17-1097

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  (10 pages)

            Nine years after the district court erroneously assessed Beau Tremaine Berge court costs in dismissed criminal cases, he challenged the assessment of those costs, which the district court denied.  OPINION HOLDS: On this discretionary review, because of legal precedent, Berge’s own failure to timely challenge the assessments, and his later agreement in a contempt proceeding to pay the costs, we find the district court properly denied Berge’s challenge and affirm.

Case No. 17-1126:  Tony Lewis Grider v. State of Iowa

Filed Oct 24, 2018

View Opinion No. 17-1126

           Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (13 pages)

           Tony Grider appeals the dismissal of his application for postconviction relief.  He argues his postconviction-relief counsel provided ineffective assistance in failing to ensure the district court addressed all of his claims, including claims his trial counsel provided ineffective assistance.  OPINION HOLDS: Because we find none of the claims the postconviction-relief court failed to explicitly address would have changed the outcome of Grider’s postconviction-relief application, Grider was not prejudiced by his counsel’s failure to file a rule 1.904 motion.  We find Grider's postconviction-relief counsel’s failure does not warrant relief and affirm the district court’s dismissal of his application for postconviction relief.  

Case No. 17-1185:  State of Iowa v. Terrion Javari Maxfield

Filed Oct 24, 2018

View Opinion No. 17-1185

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            Terrion Maxfield appeals the denial of his motion to continue trial and his sentences.  OPINION HOLDS: The defendant’s guilty plea waives his challenge to the denial of his motion to continue.  Because the trial court did not consider improper factors at sentencing, it did not abuse its discretion in imposing consecutive sentences.  We affirm.

Case No. 17-1189:  State of Iowa v. Lowell Allan Ewalt

Filed Oct 24, 2018

View Opinion No. 17-1189

            Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (11 pages)

            Lowell Ewalt appeals from his conviction for possession of a controlled substance (marijuana).  He challenges the district court’s denial of his motion to suppress evidence obtained after the initiation of a routine traffic stop for speeding.  Ewalt maintains the officer unconstitutionally extended the duration of the stop; he also argues that he should have been told his Miranda rights before the officer asked him questions pertaining to his use of marijuana.  OPINION HOLDS: Because the extension of the duration of the stop was supported by reasonable suspicion and because Ewalt was not in custody—and Miranda requirements had not been triggered—when he made incriminating statements to Trooper Smith, Ewalt’s constitutional rights were not violated.  The district court properly denied Ewalt’s motion to suppress. 

Case No. 17-1260:  Aqua Palace, LLC, an Iowa Limited Liability Company, d/b/a Aqua Palace Pool Spa & Pool v. Rob and Lisa Johnson

Filed Oct 24, 2018

View Opinion No. 17-1260

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (13 pages)

            Defendants appeal from the district court’s ruling on the plaintiff’s breach-of-contract action, raising a number of claims.  OPINION HOLDS: We affirm the judgment in favor of the plaintiff in its entirety, and we remand for a determination of an award of attorney fees incurred on appeal.

Case No. 17-1270:  Wendy Holst v. Michael Stapleton and Mansur Trucking, Inc., and Wisconsin Corporation

Filed Oct 24, 2018

View Opinion No. 17-1270

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED ON THE APPEAL AND THE CROSS-APPEAL.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (12 pages)

            Wendy Holst appeals the district court’s decision granting defendants’ motion for judgment notwithstanding the verdict on the issue of future damages.  Michael Stapleton and Mansur Trucking, Inc. cross-appeal the court’s denial of the motion as to certain past medical expenses.  OPINION HOLDS:  Holst did not present sufficient medical evidence to support a claim for future pain and suffering or future loss of function or sufficient evidence to come within the exception to this requirement, and we affirm the court’s grant of judgment notwithstanding the verdict on this ground.  On the cross-appeal, we conclude the district court did not err in finding there was substantial evidence of causation, so the issue of past medical expenses should be submitted to the jury and the court did not err in denying defendants’ motion for judgment notwithstanding the verdict on this ground.  We affirm on the appeal and the cross-appeal.

Case No. 17-1333:  State of Iowa v. Kenneth Tennant

Filed Oct 24, 2018

View Opinion No. 17-1333

            Appeal from the Iowa District Court for Scott County, Paul L. Macek and Marlita A. Greve, Judges.  AFFIRMED.  Considered by Danilson, C.J., Tabor, J., and Blane, S.J.  Opinion Per Curiam.  (23 pages)

            Kenneth Tennant appeals from his conviction and sentence for tampering with a juror.  On appeal, he alleges (1) the trial court should have granted his motion for mistrial; (2) he should have been allowed to play a specific video for the jury; (3) the court should have granted his motion for judgment of acquittal; (4) the court should have sustained his objection to various jury instructions; (5) the statute under which he was convicted is void for vagueness; (6) the statute violates his First Amendment right to free speech; (7) the trial court should have appointed him standby counsel, and (8) he was subjected to a disparate sentence.  OPINION HOLDS: After our review of the record in this appeal, we find Tennant’s appeal on each issue either has not been preserved or has no merit.  The conviction, judgment, and sentence are affirmed.

Case No. 17-1581:  In the Matter of the Luella Taylor Trust and In the Matter of the Quentin L. Taylor Trust

Filed Oct 24, 2018

View Opinion No. 17-1581

            Appeal from the Iowa District Court for O’Brien County, David A. Lester, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, J.  (12 pages)

            Bradley Taylor appeals the district court’s order interpreting language in his parents’ irrevocable trusts directing the sale of farmland.  OPINION HOLDS: Because we find the settlors’ intent to extend Bradley an option to purchase the land beyond the three-year rental period was plain on the face of the distribution provision, we reverse and remand for a determination of the questions posed in the trustee’s application on the sale of the farm real estate to Bradley.

Case No. 17-1606:  State of Iowa v. Ashley Rathjen

Filed Oct 24, 2018

View Opinion No. 17-1606

            Appeal from the Iowa District Court for Polk County, David N. May, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (6 pages)

            Ashley Rathjen appeals her convictions for two counts of possession of a controlled substance (methamphetamine) with intent to deliver, as a subsequent offender.  She argues her trial counsel was ineffective for allowing her to plead guilty after denial of her motion to dismiss and for failing to file a motion in arrest of judgment to preserve her challenge to her guilty plea.  OPINION HOLDS: We find the record inadequate to address her claims.  Therefore, we affirm her convictions and preserve her claims for possible postconviciton proceedings.

Case No. 17-1671:  Steven DeVolder and Stephanie DeVolder v. State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company

Filed Oct 24, 2018

View Opinion No. 17-1671

           Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Danilson, C.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J.  Dissent by McDonald, J.  (11 pages)

            Steven and Stephanie DeVolder appeal the grant of summary judgment in favor of State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company (collectively, State Farm).  The DeVolders claim State Farm committed breach of contract, first-party bad faith, and fraud in processing their insurance claim.  OPINION HOLDS: We agree with the district court that summary judgment is appropriate on the fraud and first-party bad faith claims.  However, we find a genuine issue of material fact regarding the breach-of-contract claim.  Therefore, we reverse on the breach claim and remand for further proceedings.  DISSENT ASSERTS: The district court correctly decided the motion for summary judgment on the record presented.

Case No. 17-1693:  State of Iowa v. Colton Eugene Dunphy

Filed Oct 24, 2018

View Opinion No. 17-1693

            Appeal from the Iowa District Court for Union County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (14 pages)

            Colton Dunphy appeals his conviction of operating while intoxicated.  He contends the district court erred in denying his motion to suppress evidence allegedly obtained in violation of his rights under Iowa Code section 804.20 (2016).  OPINION HOLDS: We find no violation of section 804.20.  We affirm Dunphy’s conviction of operating while intoxicated. 

Case No. 17-1860:  Andrew Gerth v. Iowa Business Growth, Inc. and Dan Robeson

Filed Oct 24, 2018

View Opinion No. 17-1860

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (13 pages)

            Andrew Gerth appeals the partial dismissal of his second lawsuit (No. LACL138027) and the complete dismissal of his third lawsuit (No. LACL138196) by the district court.  Gerth challenges the district court’s ruling that he was attempting to resurrect the same claims from his first lawsuit with the amendment to his second lawsuit.  He also challenges the district court’s dismissal of his third lawsuit, a copy of his first lawsuit; he argues the savings statute of Iowa Code section 614.10 (2016) is applicable to revive his dismissed first lawsuit.  OPINION HOLDS: Because Gerth does not challenge the district court’s actual reason for dismissing his age-discrimination claims in his second lawsuit, and because the argument he makes on appeal was not presented to the district court on this record, we affirm the district court’s partial dismissal of Gerth’s second lawsuit (No. LACL138027).  Additionally, because the savings statute is not applicable to Gerth’s third lawsuit (No. LACL138196), we affirm the district court’s dismissal.  However, we reverse in part because each of the dismissals should be without prejudice. 

Case No. 17-1883:  State of Iowa v. Andre L. Harrington

Filed Oct 24, 2018

View Opinion No. 17-1883

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (3 pages)

            Andre Harrington appeals the sentence imposed on his conviction for second-degree robbery as an habitual offender.  OPINION HOLDS: Neither of the statutory provisions Harrington relies on, which were enacted after Harrington committed and was convicted for his crime, can apply to his sentence.  Accordingly, we affirm.

Case No. 17-1898:  State of Iowa v. Daniss Tamar Jenkins

Filed Oct 24, 2018

View Opinion No. 17-1898

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (5 pages)

            Daniss Jenkins appeals his conviction and sentence for the crime of eluding.  He asserts the State provided insufficient evidence to establish he was driving at least twenty-five miles per hour over the speed limit.  OPINION HOLDS: We find the State provided sufficient evidence to establish the excessive speed element for eluding.

Case No. 17-1932:  State of Iowa v. Savannah Dawn Hammer

Filed Oct 24, 2018

View Opinion No. 17-1932

            Appeal from the Iowa District Court for Polk County, Odell G. McGhee II, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            A defendant appeals her conviction and sentence for two counts of theft in the third degree.  She argues her trial counsel was ineffective for failing to ensure her plea had a factual basis and for failing to investigate.  OPINION HOLDS: We find there was a factual basis for her guilty plea.  Because the defendant waived all arguments not relating to her plea when she pled guilty, we cannot consider her claim her trial counsel failed to investigate.  We affirm the conviction and sentence of the district court. 

Case No. 17-2045:  State of Iowa v. Onterier Brown

Filed Oct 24, 2018

View Opinion No. 17-2045

            Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (4 pages)

            Onterier Brown appeals from convictions and sentences imposed after a jury found him guilty of three counts of sexual abuse in the third degree and one count of incest.  He challenges an evidentiary ruling and the sufficiency of the evidence.  OPINION HOLDS: The district court engaged in the appropriate balancing test, determined the evidence of other sex acts was relevant to the issue of consent and to the relationship of the defendant to the complainant, and was not unfairly prejudicial.  We find no abuse of discretion.  There was substantial evidence from which the jury could find the sex acts were done “against the will” of the complainant.

Case No. 17-2085:  State of Iowa v. Eric McIntosh, Jr.

Filed Oct 24, 2018

View Opinion No. 17-2085

            Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (3 pages)

            Edward McIntosh Jr. appeals his conviction for delivery of methamphetamine claiming sentencing entrapment.  OPINION HOLDS: Iowa courts do not recognize sentencing entrapment as an affirmative defense, and the defense would have been unsuccessful.  We affirm the conviction.

Case No. 17-2095:  State of Iowa v. Jonathon Hans Pion

Filed Oct 24, 2018

View Opinion No. 17-2095

            Appeal from the Iowa District Court for Marion County, Martha L. Mertz and Dustria A. Relph, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

            Jonathon Pion appeals after pleading guilty to violating a custodial order.  OPINION HOLDS:  Because there was a factual basis for the district court to accept the guilty plea and because the district court did not abuse its discretion in sentencing Pion, we affirm.

Case No. 18-0150:  In the Matter of K.H., Alleged to be Seriously Mentally Impaired

Filed Oct 24, 2018

View Opinion No. 18-0150

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (3 pages)

            K.H. appeals a district court ruling finding her to be seriously mentally impaired as defined by Iowa Code section 229.1(20)(a) and (c) (2017) and ordering her involuntary commitment, contending the serious-mental-impairment finding is unsupported by sufficient evidence.  OPINION HOLDS: We find the district court’s finding of serious mental impairment is supported by sufficient evidence and affirm. 

Case No. 18-0156:  In re the Marriage of Hayes

Filed Oct 24, 2018

View Opinion No. 18-0156

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (12 pages)

            Eric Hayes appeals the denial of his request to modify his child and spousal support obligations, claiming the district court should have adjusted the amounts to account for changes in income, and any changes should apply retroactively.  Additionally, he requests appellate attorney fees.  OPINION HOLDS: Because we find Eric’s decrease in income was not self-inflicted, modification is warranted.  We remand to the district court for recalculation of Eric’s child and spousal support obligations in line with the parties’ new incomes.  Reductions in support will not apply retroactively.  Each party is responsible for their own appellate attorney fees, and we divide appellate costs equally between the parties.

Case No. 18-0236:  State of Iowa v. Jessey Shane Pritchett

Filed Oct 24, 2018

View Opinion No. 18-0236

            Appeal from the Iowa District Court for Linn County, Casey D. Jones, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (5 pages)

                Jessey Pritchett appeals his conviction and sentence for the crime of escape.  Pritchett first asserts he received ineffective assistance of counsel because his counsel allowed him to enter a written guilty plea.  He claims that had he appeared for a plea hearing, on the record, he would have been informed his plea may impact his probationary status on his prior conviction.  He also claims his counsel was ineffective by allowing him to request immediate sentencing, thereby limiting his ability to “consider his options.”  OPINION HOLDS: We find he has not proved his ineffective-assistance-of-counsel claims, and therefore we affirm. 

Case No. 18-0253:  State of Iowa v. Carmen Ledesma

Filed Oct 24, 2018

View Opinion No. 18-0253

            Appeal from the Iowa District Court for Henry County, John M. Wright, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            The defendant appeals her conviction and sentence of arson in the second degree. OPINION HOLDS: Defendant’s attorney did not provide ineffective assistance of counsel by failing to file a motion in arrest of judgment challenging the factual basis of defendant’s plea.  The restitution order is not supported by the record.

Case No. 18-0399:  In the Matter of S.J., Alleged to be Seriously Mentally Impaired

Filed Oct 24, 2018

View Opinion No. 18-0399

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            S.J. appeals involuntary-commitment orders under Iowa Code chapters 125 and 229 (2018).  She argues the district court’s findings that she suffers from a substance-related disorder, as provided in Iowa Code sections 125.2(14) and 125.75(2)(a), and a serious mental impairment, as defined in section 229.1(20), are not supported by sufficient evidence.  OPINION HOLDS: We conclude the district court’s finding that S.J. posed a danger to herself as a result of her cannabis use disorder is supported by clear and convincing evidence.  We therefore affirm the chapter 125 involuntary-commitment order.  We conclude the finding that S.J. suffered from a serious mental impairment at the time of the commitment hearing is unsupported by clear and convincing evidence.  We reverse the chapter 229 order and remand to the district court with instructions to deny the application under chapter 229 and terminate the proceeding. 

Case No. 18-0452:  State of Iowa v. Omar Alejandro Contreras-Gonzalez

Filed Oct 24, 2018

View Opinion No. 18-0452

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (2 pages)

            Defendant appeals his sentences for possession of a controlled substance and theft in the third degree.  OPINION HOLDS: Defendant’s waiver of his right of allocution was knowing and voluntary.

Case No. 18-0507:  State of Iowa v. David M. Leyh

Filed Oct 24, 2018

View Opinion No. 18-0507

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (4 pages)

            David Leyh challenges his conviction for possession of marijuana, first offense, claiming ineffective assistance because there was an insufficient factual basis to support his plea.  OPINION HOLDS:  We find the record had sufficient factual basis to support the charge and affirm.

Case No. 18-0640:  In the Matter of the Estate of John Patrick Shanahan

Filed Oct 24, 2018

View Opinion No. 18-0640

            Appeal from the Iowa District Court for Dubuque County, Monica L. Wittig, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            The executor of the estate of John P. Shanahan appeals a district court order denying his attorney’s request for extraordinary fees.  OPINION HOLDS: We reverse the district court’s denial of the executor’s extraordinary-fee application and remand for entry of an award for the requested amount. 

Case No. 18-1509:  In the Interest of T.B., Minor Child

Filed Oct 24, 2018

View Opinion No. 18-1509

            Appeal from the Iowa District Court for Washington County, Daniel P. Kitchen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (4 pages)

            The mother appeals the order placing T.B. in her father’s custody, arguing the district court lacked jurisdiction to modify the disposition while she appealed the child’s removal.  OPINION HOLDS: Because we find the issue of where to place T.B. is distinct from the issue on appeal of whether T.B. should be removed from her mother’s care and custody, we find the district court retained jurisdiction to modify the dispositional order while the appeal was pending.

Case No. 18-1512:  In the Interest of M.L., Minor Child

Filed Oct 24, 2018

View Opinion No. 18-1512

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: Because the child could not be returned to the parents’ custody at the time of the termination hearing, clear and convincing evidence establishes the grounds for termination pursuant to Iowa Code section 232.116(1)(h) (2018).  The evidence also shows that termination is in the child’s best interests and a delay of six months is unwarranted.  Accordingly, we affirm the termination of both the mother’s and the father’s parental rights.

Case No. 16-1066:  State of Iowa v. Roger Osborn

Filed Oct 10, 2018

View Opinion No. 16-1066

           Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Heard by Danilson, C.J., McDonald, J., and Scott, S.J.  Opinion by McDonald, J.  Special Concurrence by Danilson, C.J.  (23 pages)

           Defendant Roger Osborn appeals his convictions and sentences for twenty-six counts of possession of a visual depiction of a minor engaging in a prohibited sexual act.  OPINION HOLDS: The district court did not err in denying Osborn’s motion to suppress his interview with police, the evidence was sufficient to support Osborn’s conviction, and the sentencing court did not abuse its discretion.  SPECIAL CONCURRENCE ASSERTS: I specially concur to acknowledge the issue of whether Osborn was in custody is a close question.  Notwithstanding evidence that might support a finding Osborn was in custody, as soon as Osborn arrived at the police station he was informed he could leave at any time and he was provided transport to his home after the interview.  Considering all of these factors, I concur in this close decision.

Case No. 17-0030:  Cardnel Brown, Jr. v. State of Iowa

Filed Oct 10, 2018

View Opinion No. 17-0030

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (9 pages)

            Cardnel Brown Jr. appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: We find Brown failed to establish by a preponderance of evidence his counsel provided ineffective assistance.  We affirm the district court.

Case No. 17-0410:  State of Iowa v. Mark Haase

Filed Oct 10, 2018

View Opinion No. 17-0410

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Mark Haase appeals his convictions for possession with intent to deliver methamphetamine and failure to affix a drug tax stamp, raising the claim of an invalidly executed search warrant.  OPINION HOLDS: We conclude the affiant police officer did not act with reckless disregard for the veracity of the informant.  We affirm Haase’s convictions.

Case No. 17-0622:  State of Iowa v. Justin Andre Baker

Filed Oct 10, 2018

View Opinion No. 17-0622

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Heard by Vogel, P.J., Tabor, J., and Carr, S.J.  Opinion by Vogel, P.J.  Dissent by Tabor, J. (24 pages)

            Justin Baker appeals his convictions and sentences for possession with intent to deliver marijuana and other charges.  He argues the district court erred in denying his motion to suppress, his counsel was ineffective for failing to file another motion to suppress, and the district court abused its discretion in imposing his sentence.  OPINION HOLDS: We find the court properly denied the motion to suppress, he has not shown prejudice resulted from his counsel’s failure to file a second motion, and the court adequately explained its reasoning for imposing his sentence.  DISSENT ASSERTS: I would reverse the district court’s denial of Justin Baker’s motion to suppress.  I do not believe the State demonstrated the totality of the circumstances gave rise to reasonable suspicion necessary to conduct an investigatory stop of Baker’s vehicle.

Case No. 17-0680:  State of Iowa v. Elias Walter Wanatee

Filed Oct 10, 2018

View Opinion No. 17-0680

           Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Heard by Vogel, P.J., Tabor, J., and Blane, S.J.  Opinion by Tabor, J. (17 pages)

            Elias Wanatee appeals his conviction for second-degree murder, maintaining trial counsel was ineffective in failing to effectively object to hearsay testimony identifying “Eli” as the attacker and failing to seek the exclusion of testimony from a “jailhouse snitch,” and argues the cumulative effect of the errors resulted in prejudice.  Wanatee further argues the district court erred in permitting the State medical examiner to use the term “defensive wounds,” and by admitting into evidence a diagram from a pathology textbook illustrating “defensive wounds.”  OPINION HOLDS: Finding no breach of duty by counsel and no prejudice resulting from the district court’s admission of evidence relating to “defensive wounds,” we affirm.

Case No. 17-0741:  Alan Lee Lucas v. Iowa District Court for Linn County

Filed Oct 10, 2018

View Opinion No. 17-0741

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  WRIT ANNULLED.  Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            By way of certiorari, Alan Lucas challenges the sufficiency of the evidence to support the district court’s finding of contempt.  OPINION HOLDS: We find the evidence sufficient to support the finding of contempt, affirm the decision of the district court, and annul the writ of certiorari. 

Case No. 17-0784:  State of Iowa v. Travis Raymond Wayne West

Filed Oct 10, 2018

View Opinion No. 17-0784

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Special concurrence by Doyle, J.  (12 pages)

            Travis West appeals his convictions for involuntary manslaughter and delivery of a controlled substance, raising claims of insufficiency of the evidence, abuse of the trial court’s discretion in admitting certain evidence, and failure by the trial court to merge the crimes charged at sentencing.  OPINION HOLDS: We affirm West’s convictions for involuntary manslaughter and delivery of a controlled substance.  SPECIAL CONCURRENCE ASSERTS: I concur specially concur to question the propriety of the two-step analysis set forth in State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995).  However, I recognize that we are bound by precedent and must look to our supreme court to revisit the issue.

Case No. 17-0803:  In re the Marriage of Spitzmiller

Filed Oct 10, 2018

View Opinion No. 17-0803

            Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Jackie Spitzmiller appeals the spousal support provision of the decree dissolving her marriage, claiming the district court should not have reduced its initial award to her following its grant of Scott Spitzmiller’s motion for enlarged findings.  Scott cross-appeals, challenging the property equalization payment order.  OPINION HOLDS: We affirm as modified on appeal; we affirm on cross-appeal.

Case No. 17-0839:  Colby Ray Puckett v. State of Iowa

Filed Oct 10, 2018

View Opinion No. 17-0839

            Appeal from the Iowa District Court for Mills County, James M. Richardson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (10 pages)

            Colby Puckett appeals the denial of his application for postconviction relief.  OPINION HOLDS: Because Puckett’s plea was knowingly and voluntarily entered, and he has failed meet his burden to show plea counsel was ineffective, the district court did not err in denying his application. 

Case No. 17-0889:  In re the Marriage of Hansen

Filed Oct 10, 2018

View Opinion No. 17-0889

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J.  Special concurrence by McDonald, J.  Concurrence in part and dissent in part by Mullins, J.  (50 pages)

            Max Hansen appeals, and Karin Hansen cross-appeals from the district court’s decree dissolving their marriage.  Max asserts the district court’s award of spousal support is inappropriate in this case.  Max also challenges the court’s order he pay a portion of Karin’s trial-attorney fees.  Karin contends the district court should have ordered a greater spousal-support award.  Karin also argues the district court improperly determined the parties’ most recent postnuptial agreement controlled the division of assets, and erred in not awarding her a share of the equity in Max’s Davenport residence.  Karin requests attorney fees on appeal.  OPINION HOLDS: We conclude there is no reason to disturb the district court’s property distribution, and the district court properly awarded Karin trial-attorney fees.  However, we also conclude the district court’s spousal support award was inequitable and modify the spousal-support award.  We deny Karin’s request for appellate-attorney fees.  SPECIAL CONCURRENCE ASSERTS: I concur in the property division as equitable and concur in the spousal support award because Max conceded he was willing to pay spousal support at oral argument.  PARTIAL DISSENT ASSERTS: I dissent from the modification of the permanent alimony to Karin as inequitable in light of the award to Max of 100% of the roughly $9.6 million, 250% increase in the value of his premarital property and netting him $15.7 million after this eight-year marriage.

Case No. 17-0971:  Michelle Tamayo v. Charles A. Debrah, M.D., an individual, Mercy Health Services - Iowa, Corporation d/b/a Mercy Medical Center - North Iowa and d/b/a Mercy Home Care - North, Iowa, Iowa Corporations

Filed Oct 10, 2018

View Opinion No. 17-0971

            Appeal from the Iowa District Court for Cerro Gordo County, Christopher Foy, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Mullins and McDonald, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Plaintiff appeals the district court’s ruling granting summary judgment in favor of defendants on a medical malpractice action.  OPINION HOLDS: We conclude the district court did not abuse its discretion in striking the plaintiff’s expert witnesses and the district court did not err in granting the defendants’ motion for summary judgment.

Case No. 17-1149:  Ames 2304, LLC v. City of Ames, Zoning Board of Adjustment

Filed Oct 10, 2018

View Opinion No. 17-1149

            Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.  REVERSED AND REMANDED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (16 pages)

            Ames 2304, LLC appeals the district court order annulling its writ of certiorari.  It contends the Ames Zoning Board of Adjustment acted illegally in denying it a permit for its proposed remodeling plan by incorrectly applying the law in interpreting the zoning ordinance concerning nonconforming use.  It also contends substantial evidence does not support the Board’s finding that the plan would increase the intensity of the nonconforming use.  OPINION HOLD: The municipal ordinance’s definition of “intensity” does not apply to residential uses.  However, limiting the application of the “increase in intensity” test to just enlargements, expansions, or extensions of nonconforming uses would be contrary to the purposes of the zoning ordinance.  Looking elsewhere in the ordinance for a definition of intensity to apply to residential uses, the only instance we could find ties intensity to the number of dwelling units.  Because the proposed remodel does not increase the number of dwelling units, it would not increase the intensity of the nonconforming use.  In relying on its erroneous interpretation of the zoning ordinance, the Ames Zoning Board of Adjustment acted illegally in denying Ames 2304 a permit for its proposed interior remodel.  We reverse the district court order annulling the writ of certiorari and remand to the district court for entry of an order sustaining the writ.

Case No. 17-1336:  State of Iowa v. Sean Michael Hilliard

Filed Oct 10, 2018

View Opinion No. 17-1336

            Appeal from the Iowa District Court for Dubuque County, Monica L. Wittig, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Mahan, S.J.  Opinion by Vogel, P.J.  (9 pages)

            Sean Hilliard appeals his conviction for sexual abuse in the second degree.  Through his appellate counsel, he argues his trial counsel was ineffective on several grounds.  In a pro se brief, he also argues his jury was not drawn from a fair cross-section of the community and the evidence is insufficient to support his conviction.  OPINION HOLDS: We find the evidence is sufficient to support his conviction, he did not preserve his jury-composition argument, and we cannot evaluate his ineffective-assistance claims on the record before us.  Therefore, we affirm his conviction and preserve his ineffective-assistance claims for potential postconviction proceedings.

Case No. 17-1349:  Farmers Savings Bank v. Richard Allen Wessels, Prime Rut, Inc., and Wessels Land, LLC

Filed Oct 10, 2018

View Opinion No. 17-1349

            Appeal from the Iowa District Court for Clayton County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (9 pages)

            Appellants appeal a district court decree granting foreclosure of mortgages on farm property in favor of Farmers Savings Bank.  OPINION HOLDS: Having reviewed de novo the issues properly presented on appeal, we affirm the outcome of the district court proceedings. 

Case No. 17-1365:  State of Iowa v. Alan Nigel Archibald, Jr.

Filed Oct 10, 2018

View Opinion No. 17-1365

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (3 pages)

            Alan Nigel Archibald Jr. appeals from his convictions following bench trial for multiple offenses.  On appeal, Archibald argues that the district court erred when it denied his motion for a new trial because the verdict was against the weight of the evidence.  OPINION HOLDS: Because the court did not abuse its discretion in denying Archibald’s motion for a new trial, we affirm.

Case No. 17-1410:  In re the Marriage of Haidar

Filed Oct 10, 2018

View Opinion No. 17-1410

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

           Patricia Haidar appeals the entry of default judgment in her dissolution proceeding.  OPINION HOLDS: The entry of default judgement was not proper because Patricia's counsel was present for trial and prepared to proceed without Patricia's physical presence, and Patricia's presence was not reasonably necessary to resolve the disputes at issue.  The portion of the judgment dissolving the marriage is affirmed, and the remainder is vacated and remanded to the district court for substantive consideration.

Case No. 17-1528:  State of Iowa v. Nancy Kay Elizabeth Hoffman

Filed Oct 10, 2018

View Opinion No. 17-1528

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (15 pages)

            Nancy Hoffman appeals her conviction and sentence following her guilty plea to operating while under the influence (OWI), second offense.  Her appeal was consolidated with her appeal of the revocation of her probation and deferred judgment from a prior conviction.  Hoffman asserts the court erred in accepting her guilty plea, in sentencing her, and in finding a probation violation had occurred.  Hoffman also asserts her trial counsel was ineffective in allowing her to plead guilty to OWI, second offense, without a factual basis and because her plea was not given knowingly, voluntarily, or intelligently.  OPINION HOLDS: Because there was a factual basis for Hoffman’s guilty plea to OWI, second offense, counsel was not ineffective in that regard.  Because Hoffman stipulated she violated the terms of probation, the court did not err in revoking her probation and deferred judgment.  We affirm Hoffman’s conviction, revocation, and sentences.  Because the record is inadequate to address Hoffman’s other ineffective-assistance-of-counsel claims, we preserve those claims for potential postconviction-relief proceedings.

Case No. 17-1551:  Bianca Brashear v. Seth Aldini

Filed Oct 10, 2018

View Opinion No. 17-1551

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED IN PART AND REVERSED IN PART ON CROSS-APPEAL; AND REMANDED WITH DIRECTIONS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (14 pages)

            Seth Aldini appeals and Bianca Brashear cross-appeals from the order modifying their custody and support decree.  OPINION HOLDS: On appeal, we affirm as modified the visitation terms—modifying the weekend, Wednesday night, holiday and child’s birthday visitation terms.  On the cross-appeal, we reverse the denial of retroactive application of the increased child support and affirm on all other issues.  We remand for further proceedings consistent with this opinion.

Case No. 17-1557:  Jason A. Brown v. State of Iowa

Filed Oct 10, 2018

View Opinion No. 17-1557

           Appeal from the Iowa District Court for Jackson County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (7 pages)

           Jason Brown appeals from the summary adjudication of his second application for postconviction relief, contending the district court erred in dismissing the claim as time barred.  OPINION HOLDS: Because Brown has not shown he could not have raised the issue earlier or sufficient reason to avoid the three-year bar, we affirm. 

Case No. 17-1588:  State of Iowa v. Bryant Kephart

Filed Oct 10, 2018

View Opinion No. 17-1588

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt and Cynthia M. Moisan, District Associate Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Bryant Kephart challenges his guilty pleas, claiming he received ineffective assistance of counsel because his plea was not knowingly made and lacked a factual basis.  OPINION HOLDS: Because the plea was knowingly made and supported by a factual basis, counsel was not ineffective in allowing Kephart to plead guilty or failing to file a motion in arrest of judgment.

Case No. 17-1666:  Robert Valley and Marlene Valley v. Douglas Kiel and Jan Kiel

Filed Oct 10, 2018

View Opinion No. 17-1666

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

            Robert and Marlene Valley appeal the district court order denying their petition and entering judgment in favor of Douglas and Jan Kiel.  OPINION HOLDS: The Valleys have met their burden of proving their claim to enforce the security interest, and the Kiels fall short of proving by clear and convincing evidence the proof necessary to reform the contract.  We reverse the district court order denying the Valleys’ petition, enter judgment in their favor, and assess costs of the action to the Kiels.  We remand to the district court to determine the amount of attorney fees to award the Valleys.

Case No. 17-1677:  John Paul Gent and Beth Ann Gent v. Thomas Joseph Gent and Mary Ann Gent

Filed Oct 10, 2018

View Opinion No. 17-1677

           Appeal from the Iowa District Court for Keokuk County, Joel D. Yates, Judge.  REVERSED.  Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.  Opinion by McDonald, J.  (5 pages)

           Petitioners appeal from the district court judgment permanently enjoining them from taking certain actions with respect to farm property.  OPINION HOLDS: Respondents failed to prove they would suffer substantial injury or damages in the absence of injunctive relief.  They also failed to show no alternative legal remedy would be adequate.  The district court erred in granting injunctive relief.

Case No. 17-1696:  State of Iowa v. Brian McConnelee

Filed Oct 10, 2018

View Opinion No. 17-1696

            Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar And David P. Odekirk, Judges.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (9 pages)

            Brian McConnelee appeals his consecutive sentences for convictions of eight counts in three cases, claiming his counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the parties’ plea agreement.  OPINION HOLDS: Defense counsel failed to perform an essential duty by failing to timely object to the prosecutor’s breach of the plea agreement.  We presume McConnelee was prejudiced by defense counsel’s failure. 

Case No. 17-1729:  State of Iowa v. Ricky Leon Riddle

Filed Oct 10, 2018

View Opinion No. 17-1729

            Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (14 pages)

            Ricky Riddle appeals from his conviction after a jury verdict of intimidation with a dangerous weapon with intent, a class “C” felony.  He contends the district court abused its discretion when it allowed into evidence a recording of a jailhouse phone call of Riddle calling the State’s main witness.  Additionally, Riddle claims he was denied effective assistance because his trial counsel did not object to the prosecutor’s inflammatory statements, which amounted to prosecutorial error, during closing arguments.  OPINION HOLDS: The district court did not abuse its discretion when it admitted into evidence a recording of a phone call between Riddle and the complaining witness.  Additionally, because Riddle has not established a due process violation resulting from the prosecutor’s statements in closing argument, his claim of ineffective assistance cannot succeed.  We affirm.

Case No. 17-1740:  In the Interest of C.D., Minor Child

Filed Oct 10, 2018

View Opinion No. 17-1740

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A mother appeals the termination of her parental rights raising claims of insufficient evidence and a ruling that is contrary to the best interests of the child.  OPINION HOLDS: We conclude termination of the mother’s parental rights to the child was in the child’s best interests.  We affirm the district court’s termination decision.

Case No. 17-1766:  State of Iowa v. Vadim Igorevich Shultsev

Filed Oct 10, 2018

View Opinion No. 17-1766

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (6 pages)

            Vadim Shultsev appeals convictions for driving while license revoked, asserting an actual-innocence claim, despite pleading guilty.  He asks this court to find the recent supreme court case, Schmidt v. State, 909 N.W.2d 778, 789 (Iowa 2018), permits him to raise an actual-innocence claim on direct appeal despite not challenging the underlying guilty plea.  OPINION HOLDS: Shultsev was still required to timely file a motion in arrest of judgment to challenge his guilty plea on direct appeal.  A direct appeal from an uncontested guilty plea is not a viable vehicle to introduce a claim of actual innocence.  Even if we could reach the merits of Shultsev’s claim, the record is inadequately developed.  We affirm. 

Case No. 17-1776:  State of Iowa v. Robert Alejandro Esparza

Filed Oct 10, 2018

View Opinion No. 17-1776

            Appeal from the Iowa District Court for Polk County, Odell G. McGhee and William A. Price, District Associate Judges.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (4 pages)

            Robert Esperza appeals his conviction for driving while his license was denied or revoked, contending his trial counsel was ineffective for failing to timely move to suppress statements he made to an officer before his Miranda warnings were given.  OPINION HOLDS: Because the record is not adequate to decide this issue, we affirm Esparza’s conviction but preserve his ineffective-assistance claim for possible postconviction-relief proceedings.

Case No. 17-1903:  State of Iowa v. Trae D. Jackson

Filed Oct 10, 2018

View Opinion No. 17-1903

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge, And Christine Dalton Ploof, District Associate Judge.  REVERSED IN PART, SENTENCES VACATED, AND REMANDED FOR RESENTENCING.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (10 pages)

            Trae Jackson appeals following his convictions for operating while under the influence, third offense; driving while barred; and unlawful possession of a prescription drug.  He challenges the sufficiency and weight of the evidence that he was operating a vehicle.  OPINION HOLDS: We reverse and remand the convictions of operating while under the influence and driving while barred because there is not substantial evidence Jackson was “operating” the vehicle.  We vacate the sentences imposed, and remand for dismissal of those charges and for resentencing on the conviction for unlawful possession of a prescription drug.  

Case No. 17-1916:  Forrest Trausch v. Iowa Department of Human Services

Filed Oct 10, 2018

View Opinion No. 17-1916

           Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

           Forrest Trausch appeals the district court’s affirmation of the Iowa Department of Human Services’ determination that Trausch had denied his son critical care.  OPINION HOLDS: The Iowa Department of Human Services’ decision was supported by substantial evidence and was not irrational, illogical, or wholly unjustifiable.

Case No. 17-1933:  Veronica M. Lack v. State of Iowa and The Iowa Department of Natural Resources

Filed Oct 10, 2018

View Opinion No. 17-1933

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (4 pages)

           Veronica Lack appeals from the district court’s grant of summary judgment to the defendants in this civil rights action, asserting the district court erred in failing to find a continuing violation under the Iowa Civil Rights Act.  OPINION HOLDS: Because Lack failed to seek a specific ruling on the continuing-violation doctrine, the issue is not properly preserved for our review.  We therefore affirm. 

Case No. 17-1934:  Mumm v. Jennie Edmundson Memorial Hospital d/b/a Methodist Jennie Edmundson Hospital, Emergency Physicians of Western Iowa, L.L.C. and Paul C. Mileris, M.D.

Filed Oct 10, 2018

View Opinion No. 17-1934

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Per Curiam.  Dissent by Doyle, J.  (9 pages)

            Mandi Mumm appeals the order denying her motion for new trial after a jury found in favor of the defendants on her medical-malpractice claim.  OPINION HOLDS: Because the district court did not abuse its discretion in answering questions submitted by the jury during deliberations, we affirm the order denying Mumm’s motion for new trial.  DISSENT ASSERTS: Because Iowa Code section 668.3(5) (2017) mandates a court inform the jury of the effects of comparative fault as applied to the jury’s answers concerning fault, I believe the trial court erred in failing to answer the jury’s question concerning the effects of comparative fault.  This material omission of the law is the substantial equivalent of a material misstatement of the law, and Mumm is entitled to a new trial.  I would reverse the order denying her motion for new trial and remand for further proceedings.

Case No. 17-1964:  Serena Konrardy and Carrie Rigdon, n/k/a Carrie Burmeister v. Vincent Angerer Trust and Dewitt Bank and Trust Company, as Trustee of the Vincent Angerer Trust

Filed Oct 10, 2018

View Opinion No. 17-1964

            Appeal from the Iowa District Court for Clinton County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (8 pages)

            In this interlocutory appeal, the defendants argue the district court erred in denying their motion for summary judgment.  OPINION HOLDS: I. Because the defendants failed to show that the plaintiffs reasonably should have known of the existence of their breach-of-trust claim based on an accounting or report they provided to the plaintiffs, we affirm the order denying summary judgment on the grounds the plaintiffs’ claim violates the statute of limitations found in Iowa Code section 633A.4504 (2017).  II. The defendants are not entitled to summary judgment on the merits because they failed to show that their interpretation of the trust document is correct as a matter of law.

Case No. 17-2022:  In re the Marriage of Christenson

Filed Oct 10, 2018

View Opinion No. 17-2022

           Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (15 pages)

           Dawn Christenson appeals from the district court’s denial of her petition to modify provisions of the decree dissolving her marriage to Chad Christenson.  Dawn asked the district court to modify the decree to give her sole legal custody and physical care of the parties’ minor child; she also asked the court to modify the child-support obligation accordingly.  On appeal, Dawn challenges the district court’s denial of her motion for default judgment.  Alternatively, she argues the court should have granted her application for modification on the merits because a substantial change in circumstances warranting modification exists and modification is in the minor child’s best interests.  OPINION HOLDS: As the district court is bound to reach custody determinations based upon the best interests of the child at issue, we cannot say the court abused its discretion when it denied Dawn’s application for default judgment.  In considering the merits of the application for modification, we find Dawn established a substantial change in circumstances exists, but we cannot say she is better able to minister to A.C.’s well-being.  Thus, we affirm the district court’s denial of her application for modification.

Case No. 17-2100:  State of Iowa v. Kenneth J. Shadlow

Filed Oct 10, 2018

View Opinion No. 17-2100

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            Defendant Kenneth Shadlow appeals his sentence for failure to comply with the sex offender registry.  OPINION HOLDS: We affirm Shadlow’s conviction and sentence.

Case No. 17-2108:  In the Matter of the Guardianship and Conservatorship of Lori Feistner

Filed Oct 10, 2018

View Opinion No. 17-2108

           Appeal from the Iowa District Court for Polk County, Peter A. Keller, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

           Lori Fesitner appeals the order establishing an involuntary guardianship and conservatorship.  OPINION HOLDS: The petitioner provided insufficient evidence to justify the establishment of a guardianship or conservatorship.

Case No. 18-0015:  In the Interest of R.S. and L.S., Minor Children

Filed Oct 10, 2018

View Opinion No. 18-0015

            Appeal from the Iowa District Court for Sac County, Joseph B. McCarville, District Associate Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (16 pages)

            A mother appeals from the district court order denying her petition to terminate the parental rights of the father their two children.  OPINION HOLDS: Because there is clear and convincing evidence the father abandoned his children, as that term is used in Iowa Code sections 600A.2(19) and 600A.8(3)(b) (2017); because the mother did not prevent the father from visiting or communicating with the children; and because termination is in the children’s best interests, we reverse the district court and remand with instructions to enter an order terminating the father’s parental rights.

Case No. 18-0054:  In re the Marriage of Rohde

Filed Oct 10, 2018

View Opinion No. 18-0054

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (12 pages)

            Jared Rohde appeals from the district court’s modification of the decree dissolving his marriage to Kelly Rohde.  Jared challenges the court’s failure to include the extraordinary visitation credit in calculating his child support obligation as required under the Child Support Guidelines.  He also asserts the district court should not have awarded Kelly any trial attorney fees.  OPINION HOLDS: After reviewing the record, and considered the unique custody issues in this case, the disparity in incomes of the parties, and Jared’s testimony, we find it was equitable not to apply the extraordinary credit to Jared’s child support obligation.  Jared has failed to show the court’s trial attorney fee award was an abuse of its discretion.  We affirm the district court’s order.  Any costs on appeal are assessed equally.

Case No. 18-0112:  Joshua David Mitchell v. State of Iowa

Filed Oct 10, 2018

View Opinion No. 18-0112

            Appeal from the Iowa District Court for Linn County, Paul D. Miller, Chad A. Kepros, and Lars G. Anderson, Judges.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J., J.  (5 pages)

            Joshua Mitchell appeals from the denial of his motion to reinstate his second postconviction-relief (PCR) application, asserting PCR counsel was ineffective.  OPINION HOLDS: Because our confidence in the outcome has been undermined by the alleged shortcomings of Mitchell’s PCR counsel, we reverse and remand for further proceedings.

Case No. 18-0203:  Robyn Brown v. Layne Irwin

Filed Oct 10, 2018

View Opinion No. 18-0203

            Appeal from the Iowa District Court for Muscatine County, Thomas G. Reidel, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (9 pages)

            A mother, Robyn Brown, appeals from a decree establishing paternity, custody, and support of her child.  OPINION HOLDS: We affirm the establishment of paternity in Layne Irwin.  We modify the district court's award of joint physical care and award physical care to Brown and liberal visitation to Irwin.  We award Brown child support and attorney's fees.  We remand to the district court to calculate child support and determine a visitation schedule.

Case No. 18-0229:  State of Iowa v. Jason Bendickson

Filed Oct 10, 2018

View Opinion No. 18-0229

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, James M. Drew, Gregg R. Rosenbladt, and Rustin T. Davenport, Judges.  CONDITIONALLY AFFIRMED AND REMANDED WITH DIRECTIONS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (12 pages)

            Jason Bendickson appeals from two convictions asserting he is actually innocent despite pleading guilty and, citing the intervening decision in Schmidt v. State, 909 N.W.2d 778, 789 (Iowa 2018), asks the court to remand for the district court to address his claim.  OPINION HOLDS: Because the district court found only that his guilty plea was knowing and voluntary and because Schmidt held defendants can assert a claim of actual innocence that is extrinsic to the plea, we agree a remand is appropriate.  We conditionally affirm Bendickson’s convictions and remand for a hearing on his freestanding claim of actual innocence. 

Case No. 18-0247:  In re M.B., Alleged to be Seriously Mentally Impaired

Filed Oct 10, 2018

View Opinion No. 18-0247

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (7 pages)

            M.B. appeals the district court decision finding him to be seriously mentally impaired.  OPINION HOLDS:  We find there is sufficient evidence in the record to show M.B. lacks sufficient judgment to make responsible decisions with respect to his treatment and is likely, if allowed to remain at liberty, to inflict physical injury on himself or others.  We affirm the decision of the district court.

Case No. 18-0287:  In the Interest of A.C.W., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-0287

            Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

            A biological father appeals the juvenile court decision terminating his parental rights in a private termination action.  OPINION HOLDS: We conclude the juvenile court properly determined the father abandoned the child.  The biological father only met the child once and had provided no support other than one Christmas present.  We also conclude termination of the father’s parental rights was in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 18-0417:  State of Iowa v. Xavier Ashby Logan

Filed Oct 10, 2018

View Opinion No. 18-0417

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (4 pages)

            Xavier Ashby Logan appeals his conviction for assault causing bodily injury.  OPINION HOLDS: We find the district court did not abuse its discretion in its pronouncement of judgment and sentence.

Case No. 18-0767:  In the Interest of T.B. and M.M., Minor Children

Filed Oct 10, 2018

View Opinion No. 18-0767

            Appeal from the Iowa District Court for Washington County, Daniel P. Kitchen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            The mother challenges the continued removal of two of her children from her care following the modification of a dispositional order.  The mother maintains the State (1) failed to prove by substantial evidence that imminent risk, which warranted emergency removal of the children from her care, existed and (2) did not prove a material and substantial change in circumstances warranting a change in disposition.  OPINION HOLDS: Insofar as the mother challenges the emergency removal order, the issue is moot, and we do not consider it.  The mother’s challenge to the change in disposition fails, as the State proved a material and substantial change in circumstances.  The mother does not otherwise challenge the modification of the dispositional order, so we affirm.

Case No. 18-0794:  In the Interest of A.B., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-0794

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (6 pages)

            A mother appeals from the termination of her parental rights.  OPINION HOLDS: Because there is clear and convincing evidence supporting termination under Iowa Code section 232.116(1)(h) (2018) and termination is the child’s best interests, we affirm.

Case No. 18-0814:  In the Interest of B.C. and A.C., Minor Children

Filed Oct 10, 2018

View Opinion No. 18-0814

           Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Doyle, J., and Carr, S.J.  Opinion by Carr, S.J. (6 pages)

           A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: As to the mother, we find the statutory grounds for termination are met, the best interests of the children and her parent-child bond do not preclude termination, and she should not receive additional time to pursue reunification.  We also find the father’s parent-child bond does not preclude termination. 

Case No. 18-0866:  In the Interest of J.C., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-0866

            Appeal from the Iowa District Court for Jefferson County, Williams S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            A mother appeals the termination of her parental rights to her son, arguing the juvenile court lacked subject matter jurisdiction over the proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act.  OPINION HOLDS: Because we find the Interstate Compact on the Placement of Children required the Iowa juvenile court to retain jurisdiction, and Iowa is not an inconvenient forum, we affirm

Case No. 18-1107:  In the Interest of A.R. and M.R., Minor Children

Filed Oct 10, 2018

View Opinion No. 18-1107

            Appeal from the Iowa District Court for Guthrie County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother appeals the termination of her parental rights to her two minor children.  OPINION HOLDS:  Because there was sufficient evidence to terminate the mother’s parental rights and placement with the mother was not in the best interests of the children, we decline to apply any exception to termination and affirm.

Case No. 18-1114:  In the Interest of E.S., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1114

            Appeal from the Iowa District Court for Sioux County, Brian L. Michaelson, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (10 pages)

            A father and a mother separately appeal the termination of their parental rights.  OPINION HOLDS: Clear and convincing evidence supports termination of each parent’s parental rights under Iowa Code section 232.116(1)(h) (2018).  We conclude E.S. cannot be returned to the care of the parents safely because they have not engaged in any meaningful services addressing the risks of physical abuse in the home.  We cannot say the need for removal of the child will no longer exist in six months and, thus, we agree with the juvenile court an extension was not warranted.  The child’s best interests lie in termination of parental rights and permanency with the pre-adoptive foster family. 

Case No. 18-1164:  In the Interest of A.K., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1164

            Appeal from the Iowa District Court for Madison County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            The father of a child who was adjudicated in need of assistance appeals an order granting the district court concurrent jurisdiction to proceed with a guardianship action.  OPINION HOLDS: On our de novo review, we are convinced the juvenile court’s grant of concurrent jurisdiction was appropriate.  The concurrent-jurisdiction order is affirmed.

Case No. 18-1326:  In the Interest of R.C., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1326

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (5 pages)

            A mother appeals the termination of her parental rights to her minor child, born in 2017.  On appeal, the mother argues the State failed to prove the statutory grounds for termination by clear and convincing evidence and termination is not in the best interests of the child because it would be detrimental to the child’s mental and emotional wellbeing.  OPINION HOLDS: Upon our de novo review of the record, we agree with the conclusions of the juvenile court and affirm the termination order.

Case No. 18-1335:  In the Interest of M.A., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1335

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (8 pages)

            The mother appeals the termination of her parental rights to M.A., born January 2015.  She argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(g) or (h) (2017), termination is not in the best interests of the child, and the strong bond between her and her child precludes termination under Iowa Code section 232.116(3).  OPINION HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination of the mother’s parental rights.  Additionally, we find termination is in the best interests of the child and any bond between the mother and M.A. does not preclude termination.

Case No. 18-1345:  In the Interest of J.W., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1345

            Appeal from the Iowa District Court for Cerro Gordo County, Adam Sauer, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: The parents failed to preserve error on their reasonable-efforts claims.  We find the statutory grounds for termination were established by clear and convincing evidence.  We decline to grant either parent an extension and affirm the termination of the mother’s and father’s parental rights.

Case No. 18-1412:  In the Interest of A.M., A.M., E.M., and I.M., Minor Children

Filed Oct 10, 2018

View Opinion No. 18-1412

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (9 pages)

            The mother and father separately appeal the termination of their parental rights to their minor children: A.M., born 2011; A.M., born 2012; E.M., born 2014; and I.M., born 2016.  The father argues the children were not removed for the statutorily required time.  Both argue additional time should have been afforded and termination was not in the best interests of the children.  OPINIONS HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination of both the mother’s and father’s parental rights.  Additionally, we find termination is in the best interests of the children and neither any bond between the parents and the children nor the children’s placement with relatives is sufficient to preclude termination.

Case No. 18-1420:  In the Interest of A.Z., Minor Child

Filed Oct 10, 2018

View Opinion No. 18-1420

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            A mother appeals from the termination of her parental rights to her child.  OPINION HOLDS: The statutory grounds authorizing termination were satisfied, authorizing termination, and termination is in the child’s best interest.  The Iowa Department of Human Services made reasonable efforts toward reunification and an additional six months to work toward reunification is not appropriate because the circumstances requiring removal are likely to remain.

Case No. 17-0117:  State of Iowa v. Steven Asbury

Filed Sep 26, 2018

View Opinion No. 17-0117

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (11 pages)

             Steven Asbury appeals from judgment and sentence entered upon his conviction for first-degree murder following a jury trial.  On appeal, Asbury asserts there was insufficient evidence of the identity of who shot the victim.  He also contends he received ineffective assistance of trial counsel due to his attorney’s failure to object to two jury instructions.  OPINION HOLDS: Because we find substantial evidence supports the jury verdict, and Asbury was not prejudiced by counsel’s failure to object to the instructions, we affirm.

Case No. 17-0570:  State of Iowa v. Imere Hall

Filed Sep 26, 2018

View Opinion No. 17-0570

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (13 pages)

            Imere Hall appeals his convictions of first-degree murder and first-degree robbery following a jury trial.  OPINION HOLDS: Substantial evidence exists to support the jury’s verdict, and the district court properly denied Hall’s motion for judgment of acquittal.  Additionally, Hall’s sentence of life in prison without parole is not cruel and unusual punishment or in violation of his right to equal protection of the laws.  Finally, his pro se arguments, insofar as they were preserved for our review, are without merit.  Accordingly, we affirm Hall’s judgment and sentence following his convictions of first-degree murder and first-degree robbery.

Case No. 17-0716:  Roger Waddell, Administrator of the Estate of Christina Waddell v. University of Iowa Community Medical Services, Inc. d/b/a University of Iowa Quick Care North Liberty, a/k/a UI Family Care Center North Liberty

Filed Sep 26, 2018

View Opinion No. 17-0716

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (12 pages)

            The plaintiff appeals from the district court’s summary judgment order dismissing the medical malpractice lawsuit against the defendants.  OPINION HOLDS: We find summary judgment was proper because the plaintiff’s expert testimony failed to establish causation and could not establish a prima facie case of medical negligence.  We therefore affirm the trial court’s summary judgment ruling in favor of the defendants.

Case No. 17-0727:  State of Iowa v. Bryce Ladaris Gully

Filed Sep 26, 2018

View Opinion No. 17-0727

            Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (24 pages)

            Bryce Gully appeals his convictions of several drug- and gun-related crimes and the sentences imposed. He contends: (1) the district court erred in denying his motion to suppress evidence obtained pursuant to a search warrant because the warrant application lacked probable cause; (2) the district court abused its discretion in denying his motions for a mistrial; (3) there was insufficient evidence to support his convictions and the district court therefore erred in denying his motions for judgment of acquittal; (4) the sentences imposed amount to cruel and unusual punishment because his prior convictions supporting sentencing enhancement were committed when he was a juvenile; and (5) his trial counsel rendered ineffective assistance in failing to object to the racial makeup of the jury pool.  OPINION HOLDS: We affirm Gully’s conviction and sentence in their entirety.  We preserve Gully’s ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings. 

Case No. 17-0806:  Joe Louis Byrd v. State of Iowa

Filed Sep 26, 2018

View Opinion No. 17-0806

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (12 pages)

            Joe Byrd appeals the district court decision denying his request for postconviction relief from his conviction of first-degree robbery.  OPINION HOLDS: Byrd has not shown he received ineffective assistance based on his claims defense counsel failed to: (1) file a motion to suppress, (2) impeach the testimony of a witness, (3) object to prosecutorial misconduct, (4) claim the State concealed exculpatory evidence, and (5) address the issue of juror misconduct.  We conclude Byrd has not shown he received ineffective assistance, whether the claims are considered individually or cumulatively.  We affirm the district court’s decision denying his request for postconviction relief.

Case No. 17-0904:  In re the Marriage of Monahan

Filed Sep 26, 2018

View Opinion No. 17-0904

           Appeal from the Iowa District Court for Shelby County, Gregory W. Steensland, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (10 pages)

           A wife appeals the economic provisions of her dissolution decree.  She challenges the property division and spousal support award.  OPINION HOLDS: The district court incorrectly concluded the husband's military pension was not subject to division, and we conclude the pension should be divided using the Benson formula.  All other aspects of the property division were equitable.  We affirm the spousal support award but modify the award to commence on the date of the dissolution decree.

Case No. 17-1160:  Jonathan Armstrong v. State of Iowa

Filed Sep 26, 2018

View Opinion No. 17-1160

           Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J. (15 pages)

            Jonathan Armstrong appeals the dismissal of his application for postconviction relief, arguing trial and appellate counsel were ineffective.  OPINION HOLDS: Upon our de novo review, we find Armstrong failed to demonstrate a reasonable probability of a different outcome had counsel performed in the manner Armstrong suggests. We affirm the postconviction court’s denial of relief.

Case No. 17-1174:  In the Interest of M.S., Minor Child

Filed Sep 26, 2018

View Opinion No. 17-1174

            Appeal from the Iowa District Court for Marion County, Thomas W. Mott, Judge.  REVERSED AND REMANDED.  Heard by Danilson, C.J., McDonald, J., and Scott, S.J.  Opinion by Scott, S.J. (6 pages)

            A father appeals the juvenile court’s decision to terminate his parental rights in a private termination action.  OPINION HOLDS: We determine the order terminating the father’s parental rights must be reversed because the father was not adequately informed of his right to counsel.  We remand to the juvenile court, where proper notice should be served on the father and proof of the service of notice placed in the record, prior to any rehearing on the merits of the petition to terminate his parental rights.  On remand, if the father requests the assistance of counsel and is financially unable to employ counsel, then counsel should be appointed for him.

Case No. 17-1193:  State of Iowa v. Kenith Lewis

Filed Sep 26, 2018

View Opinion No. 17-1193

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (12 pages)

            Kenith Lewis, through appellate counsel, presents several claims of ineffective assistance of counsel and additionally raises pro se claims concerning trial counsel’s failure to object to testimony, the sufficiency of the evidence, the constitutionality of his sentence, and jury selection.  OPINION HOLDS: Lewis fails to show trial counsel’s performance fell below professional standards.  Finding no other ground for reversal, we affirm Lewis’s convictions and sentences for first-degree burglary and third-degree sexual abuse.

Case No. 17-1254:  State of Iowa v. William Lowell Foster

Filed Sep 26, 2018

View Opinion No. 17-1254

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland and Mary E. Chicchelly, Judges.  affirmed.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            William Foster appeals his conviction following entry of an Alford plea contending ineffective assistance of counsel and district court abuse of discretion.  OPINION HOLDS: We affirm Foster’s judgment and sentence.

Case No. 17-1469:  State Farm Insurance v. Christine Warth, as parent of Z.W. and Z.W., a minor child

Filed Sep 26, 2018

View Opinion No. 17-1469

           Appeal from the Iowa District Court for Des Moines County, Shawn R. Showers, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

           Christine Warth appeals the district court’s award of damages to State Farm Insurance stemming from a car accident.  OPINION HOLDS: We find the exhibits relied upon by the district court in its damage calculation contained inadmissible hearsay and did not fit within the business-records or residual exceptions.  We reverse the damage award and remand for further proceedings.

Case No. 17-1504:  Estate of Payton Montana Casteel, by and through its administrator, Anna Hutt; and Tiran Casteel, individually v. Patricia Cherie Wray

Filed Sep 26, 2018

View Opinion No. 17-1504

            Appeal from the Iowa District Court for Page County, James M. Richardson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (14 pages)

            Parents of teenager who died appeal the jury’s verdict of no fault in a tort action based on a vehicle accident.  They contend the jury’s verdict was not supported by sufficient evidence and failed to effectuate substantial justice.  Further, they argue the court erred in overruling their motion in limine and giving jury instructions about evidence that their son lacked a driver’s license and his motorcycle lacked a headlight and turn signals.  Finally, they contend the court erred in granting summary judgment on their claim of damages for pre-death pain, suffering, and loss of function.  OPINION HOLDS: We find the jury’s verdict is supported by sufficient evidence and effects substantial justice.  We therefore conclude the court did not err or abuse its discretion in denying a new trial.  We also find the plaintiffs failed to preserve error on their claims on the admissibility of challenged evidence and jury instruction 16H.  We find no error in jury instruction 16I.  Finally, we find the court did not err by granting summary judgment and refusing to submit pre-death pain, suffering, and loss of function to the jury. 

Case No. 17-1572:  State of Iowa v. Victor Villarreal

Filed Sep 26, 2018

View Opinion No. 17-1572

            Appeal from the Iowa District Court for Plymouth County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            Victor Villarreal challenges the sufficiency of the evidence supporting his convictions for unauthorized possession of an offensive weapon, two counts of trafficking in stolen weapons, and six counts of possession of a firearm by a felon.  OPINION HOLDS: There is sufficient evidence demonstrating Villarreal’s constructive possession of the firearms.

Case No. 17-1653:  State of Iowa v. Charles P. Phipps

Filed Sep 26, 2018

View Opinion No. 17-1653

            Appeal from the Iowa District Court for Poweshiek County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            Charles Phipps appeals from his conviction for assault while displaying a dangerous weapon.  Phipps maintains (1) the trial court should have granted his motion for judgment of acquittal because assault while displaying a dangerous weapon is a specific-intent crime and the State did not provide substantial evidence regarding his specific intent, (2) trial counsel provided ineffective assistance by failing to challenge the jury instruction that assault with a dangerous weapon is a general-intent crime, and (3) the court abused its discretion in denying his motion for mistrial after a witness’s testimony exceeded the minutes of evidence.  OPINION HOLDS: Because Phipps failed to object to the jury instructions, his sufficiency-of-the-evidence argument is at odds with the law of the case, and we decline to consider it.  His argument he received ineffective assistance from trial counsel fails, as he has not established the elements of ineffective assistance of counsel.  And we cannot say the district court abused its discretion when it denied Phipps’s motion for mistrial but struck from the record the testimony Phipps challenged as outside of the minutes and instructed the jury not to consider that testimony.  We affirm.

Case No. 17-1727:  State of Iowa v. Ronald Skyler Steenhoek

Filed Sep 26, 2018

View Opinion No. 17-1727

           Appeal from the Iowa District Court for Boone County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (7 pages)

           Ronald Steenhoek appeals his conviction and sentence for theft in the second degree in violation of Iowa Code sections 714.1 and 714.2(2) (2017).  Steenhoek argues the district court erred by assessing financial obligations to him without first making a determination of his reasonable ability to pay and abused its discretion when it sentenced him to five years’ imprisonment.  OPINION HOLDS: Because no restitution order is yet in place, Steenhoek’s claim regarding his financial obligation and reasonable ability to pay is not yet ripe for our review, and we do not consider it.  The district court did not abuse its discretion when sentencing Steenhoek.  We affirm.

Case No. 17-1749:  State of Iowa v. Jack Raymond Carr

Filed Sep 26, 2018

View Opinion No. 17-1749

            Appeal from the Iowa District Court for Polk County, David N. May (possession plea), Thomas W. Mott (driving-while-barred plea), and Eliza J. Ovrom (sentencing), Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (3 pages)

            Jack Carr appeals after pleading guilty to possession of methamphetamine and driving while barred.  OPINION HOLDS: Because the record is insufficient to determine Carr’s ineffective-assistance-of-counsel claim on the merits, we affirm his convictions and preserve the issue of ineffective assistance of counsel for future postconviction-relief proceedings.

Case No. 17-1807:  In re the Marriage of Olson

Filed Sep 26, 2018

View Opinion No. 17-1807

            Appeal from the Iowa District Court for Pocahontas County, Kurt L. Wilke, Judge.  AFfirmed.  Heard by Vogel, P.J., Tabor, J., and Blane, S.J.  Opinion by Vogel, P.J. (9 pages)

            Amanda Reese asked the court to modify the physical-care and child-support provisions of the decree dissolving her marriage to Brian Olson.  Amanda’s petition alleged a substantial change in circumstances regarding the care and well-being of the children and a failure to communicate as changes since the entry of the decree.  OPINIONS HOLDS: Because we conclude Amanda failed to show a substantial change in circumstances since the original decree, we affirm the district court’s denial of the petition to modify physical care and child support.  We also affirm the district court’s failure to award Amanda attorney fees and decline to award her appellate attorney fees.

Case No. 17-1811:  Matthew Michael DeAngelo v. JLG Industries, Inc.

Filed Sep 26, 2018

View Opinion No. 17-1811

            Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            JLG Industries appeals the district court’s denial of a motion to dismiss for lack of personal jurisdiction.  OPINION HOLDS: An allegation of a company doing business in the state is insufficient to establish a company is “at home” for purposes of general jurisdiction. 

Case No. 17-1895:  Ashley Van Zetten v. Iowa Board of Cosmetology Arts and Sciences

Filed Sep 26, 2018

View Opinion No. 17-1895

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (6 pages)

           Ashley Van Zetten appeals the district court’s dismissal of her petition for judicial review for failing to serve the Iowa Board of Cosmetology Arts and Sciences within the ten-day window required by Iowa Code section 17A.19(2) (2015).  OPINION HOLDS: Because Van Zetten substantially complied with the requirements of section 17A.19(2), the district court erred in granting the board’s motion to dismiss.  We reverse the district court’s ruling and remand the case for further proceedings consistent with this opinion.

Case No. 17-2092:  In re the Marriage of Herum

Filed Sep 26, 2018

View Opinion No. 17-2092

           Appeal from the Iowa District Court for Emmet County, Nancy L. Whittenberg, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Scott Herum appeals the district court’s denial of his motion for recusal and grant of his ex-wife’s application for distribution of support payments.  OPINION HOLDS: Because the district court judge properly declined to recuse herself and the distribution of support payments was not barred by res judicata or estoppel, we affirm. We assess appellate costs to Scott.

Case No. 17-2106:  In re the Marriage of Hockemeyer

Filed Sep 26, 2018

View Opinion No. 17-2106

            Appeal from the Iowa District Court for Grundy County, Joel A. Dalrymple, Judge.  AFFIRMED.  Heard by Vogel, P.J., Tabor, J., and Carr, S.J.  Opinion by Carr, S.J. (7 pages)

            A father appeals the physical care determination of a decree of dissolution.  OPINION HOLDS: Both parents are suitable custodians for the child, but geographical distance prevents joint physical care.  We affirm the dissolution decree.

Case No. 18-0049:  State of Iowa v. Shawn Howard Lurkens

Filed Sep 26, 2018

View Opinion No. 18-0049

            Appeal from the Iowa District Court for Linn County, Russell G. Keast and Angeline M. Wilson, District Associate Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            Shawn Lurkens appeals after pleading guilty to domestic abuse assault claiming his plea counsel was ineffective in allowing him to plead guilty because there was no factual basis for the plea.  OPINION HOLDS: Because there was a factual basis for the defendant’s guilty plea, we affirm the conviction.

Case No. 18-0265:  State of Iowa v. Robert Anthony Cooper

Filed Sep 26, 2018

View Opinion No. 18-0265

            Appeal from the Iowa District Court for Polk County, Odell G. McGhee II, District Associate Judge.  AFfirmed.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            Cooper appeals his conviction and sentence after he entered into an Alford plea for fourth-degree theft.  First, Cooper claims that he received ineffective assistance of counsel because his counsel allowed him to enter into the Alford plea even though there was no factual basis for the plea.  Second, Cooper argues that the district court erred by accepting the plea due to the lack of factual basis.  OPINION HOLDS: There was factual basis to support the entering and acceptance of an Alford plea for fourth-degree theft, thus we affirm.

Case No. 18-0372:  State of Iowa v. Gregory Earl Jordan

Filed Sep 26, 2018

View Opinion No. 18-0372

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (5 pages)

            The defendant appeals his conviction of theft in the third degree following a jury trial.  OPINION HOLDS: Because Jordan did not prove the outcome of trial would have been different had his counsel filed a motion to suppress evidence or objected to evidence of other bad acts, his ineffective-assistance-of-counsel claims fail, and we affirm.

Case No. 18-0444:  State of Iowa v. Jose Felipe Pena

Filed Sep 26, 2018

View Opinion No. 18-0444

            Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (3 pages)

            Jose Pena appeals the sentence imposed upon his conviction of child endangerment resulting in bodily injury, contending the district court improperly relied on unproven and unadmitted facts in sentencing.  OPINION HOLDS: We conclude the unchallenged portions of the presentence-investigation report, which were permissible considerations, are sufficient to establish the matter Pena complains the court relied on in denying his sentencing requests.  Accordingly, we affirm. 

Case No. 18-0963:  In the Interest of H.S., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-0963

           Appeal from the Iowa District Court for Harrison County, Amy L. Zacharias, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: I. Clear and convincing evidence establishes the grounds for terminating both the mother’s and the father’s parental rights under section 232.116(1)(h) (2017).  II. The mother failed to preserve error on her reasonable-efforts claim.  III. Termination is in the child’s best interests. 

Case No. 18-1029:  In the Interest of B.M., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-1029

           Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  Dissent by Vogel, J.  (20 pages)

            A mother appeals the juvenile court order terminating her parental rights. OPINION HOLDS: We find the State failed to prove the alleged statutory grounds for termination by clear and convincing evidence. We reverse the juvenile court’s termination order and remand for further proceedings.  DISSENT ASSERTS: I would affirm the termination of the mother’s parental rights.  I believe the State proved by clear and convincing evidence B.M. could not be returned to the care of the mother at the time of the termination hearing.

Case No. 18-1148:  In the Interest of M.W., M.C., T.C., D.C., G.C., and A.C., Minor Children

Filed Sep 26, 2018

View Opinion No. 18-1148

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  aFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: We find the State fulfilled its duty to make reasonable efforts to reunify the mother with her children under Iowa Code section 232.102(6)(b) (2018), and clear and convincing evidence establishes the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(h).  We affirm the decision of the juvenile court.

Case No. 18-1205:  In the Interest of A.S., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-1205

            Appeal from the Iowa District Court for Jefferson County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (6 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We find additional time to have the child placed in the father’s care is not warranted and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 18-1242:  In the Interest of M.M. and C.M., Minor Children

Filed Sep 26, 2018

View Opinion No. 18-1242

            Appeal from the Iowa District Court for Marion County, Steven W. Guiter, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because the State proved by clear and convincing evidence the children could not be returned at the time of the termination hearing, no permissive factor weighs against termination, and termination is in the children’s best interests, we affirm. 

Case No. 18-1246:  In the Interest of C.H.-B., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-1246

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (7 pages)

            The father appeals the termination of his parental rights to his child.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(b), (e), (h), and (l) (2018).  It also found termination was in the child’s best interests.  OPINION HOLDS: Upon our de novo review, we find clear and convincing evidence supports termination under section 232.116(1)(h), termination is in the child’s best interests, and there is no basis to support an extension.  Therefore, we affirm.

Case No. 18-1339:  In the Interest of L.H., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-1339

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother and father appeal the termination of their parental rights to a child, born in 2016.  The mother contends (A) the State failed to prove the grounds for termination cited by the district court, (B) the termination hearing should have been postponed, and (C) the district court should have declined to terminate her parental rights based on the closeness of the parent-child bond.  The father contends (A) the State failed to prove the grounds for termination cited by the district court and (B) termination was not in the child’s best interests given the closeness of the parent-child bond.  OPINION HOLDS: We affirm the termination of the parents’ rights to the child.

Case No. 18-1340:  In the Intereset of J.E., Minor Child

Filed Sep 26, 2018

View Opinion No. 18-1340

           Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (4 pages)

           A mother appeals the termination of her parental rights in her child.  OPINION HOLDS: The district court’s decision was supported by sufficient evidence, the State made reasonable efforts to reunify the mother with her child, and the termination of rights is in the child’s best interest.

Case No. 16-0757:  Habitat for Humanity v. Charity Lynn Rush

Filed Sep 12, 2018

View Opinion No. 16-0757

           Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, J.  (2 pages)

           Charity Rush appeals the district court’s decree foreclosing the mortgages on the property in question.  OPINION HOLDS: We conclude the district court properly rendered a judgment of foreclosure.

Case No. 16-0935:  State of Iowa v. Dustin Jerome Jefferson

Filed Sep 12, 2018

View Opinion No. 16-0935

           Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  Dissent by Potterfield, J. (29 pages)

           Dustin Jefferson appeals his conviction of aiding and abetting first-degree murder in violation of Iowa Code sections 707.2 (2013).  He argues there is insufficient evidence to support his conviction and his trial counsel was ineffective in a number of respects.  OPINION HOLDS: We find sufficient evidence supports Dustin’s conviction and trial counsel was not ineffective as alleged.  We affirm Dustin’s conviction of aiding and abetting murder in the first degree.  DISSENT ASSERTS:  The evidence here is insufficient to support the verdict.  I would reverse and remand for dismissal.

Case No. 16-1880:  In re the Marriage of Berg

Filed Sep 12, 2018

View Opinion No. 16-1880

            Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Amy Berg appeals the economic provisions of the decree dissolving her marriage to Mark Berg.  She contends (1) the district court should have assigned her one of the two tax exemptions for the children; (2) the district court’s property division was inequitable, and (3) she should have been awarded more trial attorney fees.  OPINION HOLDS: We affirm the dissolution decree as modified.  We order Mark to pay $2000 toward Amy’s appellate attorney-fee obligation.

Case No. 17-0435:  Sessions L. Harper v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-0435

           Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (20 pages)

           Sessions Harper appeals the denial of his application for postconviction relief (PCR).  In addition to his various pro se claims of ineffective assistance of counsel, he contends the district court erred in concluding his trial counsel did not render ineffective assistance of counsel in failing to object to an allegedly improper jury instruction on the crime of first-degree kidnapping and abused its discretion in declining to admit certain evidence in the PCR trial.  OPINION HOLDS: We affirm the denial of Harper’s PCR application. 

Case No. 17-0479:  State of Iowa v. Trisha Marie Goldensoph

Filed Sep 12, 2018

View Opinion No. 17-0479

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Trisha Goldensoph appeals following her convictions of one count of delivery of methamphetamine and one count of possession of methamphetamine, challenging (1) the sufficiency of the evidence supporting the jury’s findings of guilt and (2) the district court’s denial of her motion for new trial premised on an allegation that “three jurors” were “sleeping” during trial.  OPINION HOLDS: We affirm the jury findings of guilt for delivery of methamphetamine and possession of methamphetamine, and we affirm the court’s denial of the motion for new trial.

Case No. 17-0599:  In the Matter of the Estate of LaVerne E. Workman, Deceased

Filed Sep 12, 2018

View Opinion No. 17-0599

            Appeal from the Iowa District Court for Muscatine County, Thomas G. Reidel, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Per Curiam.  Separate Writing by Potterfield, J.  Partial Dissent by Vaitheswaran, P.J.  (8 pages)

            Dennis Workman appeals, contending the district court should not have enforced the “no-contest” provision because he acted with probable cause and in good faith in filing his will-contest action.  OPINION HOLDS: While we affirm the revocation of Dennis’ interest, we reverse as to Dennis' son.  SEPARATE WRITING STATES: I agree with the majority that Dennis’s interest in his father’s will should be revoked, as he failed to establish good faith and probable cause for filing the will-contest action relating to his father’s will; I write separately to explain why I take a different position on this issue in this action than I did in In re Estate of Workman, No. 16-0908, 2017 WL 706342, at *7 (Iowa Ct. App. Feb. 22, 2017).  DISSENT ASSERTS: I concur in affirmance of the revocation of Dennis’ shares and interest in LaVerne’s estate but I respectfully dissent from the majority’s conclusion that Dennis’ minor son is entitled to receive his bequest.

Case No. 17-0655:  State of Iowa v. Akuk Atak Alem Akok

Filed Sep 12, 2018

View Opinion No. 17-0655

            Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            Akuk Akok appeals his convictions for first-degree burglary, assault while participating in a felony, and child stealing.  OPINION HOLDS: Because the State made a sufficient prima facie case concerning the authenticity of Akok’s Facebook messages, the district court did not abuse its discretion in admitting the messages into evidence.  We preserve Akok’s ineffective-assistance claim to allow full development of the record during postconviction proceedings. 

Case No. 17-0831:  In re the Marriage of Demmer

Filed Sep 12, 2018

View Opinion No. 17-0831

           Appeal from the Iowa District Court for Delaware County, Monica Wittig, Judge.  AFFIRMED AS MODIFIED.  Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.  Opinion by Danilson, C.J. (20 pages)

            Jacquelyn (Jacque) Demmer appeals from the custody, support, and property distribution provisions of the decree dissolving her marriage to Joshua (Josh) Demmer.  Jacque contends the trial court erred in granting sole legal custody and physical care of the parties’ three children to Josh, asserts the court improperly placed restrictions on visitation with her parents, erred in not awarding her spousal support, failed to divide the marital property equitably, erred in awarding Josh with the tax dependency exemptions, and improperly calculated child support.  OPINION HOLDS: I. Because the parties agreed to joint legal custody, the trial court should not have granted sole legal custody to Josh.  II. We find no reason to disturb the placement of the children in Josh’s physical care.  III. Josh did not seek any restriction or supervision of Jacque’s parenting time and the trial court gave no reviewable reason for restricting the maternal grandparents’ access to the children.  We strike these restrictions from the decree.  IV. We find no failure to do equity in the district court’s distribution of marital assets and debts and its refusal to award spousal support.  V. The trial court properly awarded the tax exemptions to Josh, but providing that should Jacque have sufficient annual income to benefit from the tax exemptions, she would be entitled to use the second of the three children as an exemption.  VI. We affirm the child-support calculation. VII. The trial court did not abuse its discretion in denying Jacque trial attorney fees.  VIII. We award no appellate attorney fees.  IX. Costs are taxed one-quarter to Josh and three-quarters to Jacque.

Case No. 17-1026:  David Eugene Maddox v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1026

           Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (13 pages)

           David Maddox appeals from the denial of his application for postconviction relief, asserting his trial counsel rendered ineffective assistance and his appellate counsel was ineffective in failing to raise trial counsel’s ineffectiveness on Maddox’s first appeal.  OPINION HOLDS: Because we conclude Maddox has not established trial or appellate counsel rendered ineffective assistance, we affirm.

Case No. 17-1054:  State of Iowa v. Ethen Eddie Richard Ayers

Filed Sep 12, 2018

View Opinion No. 17-1054

            Appeal from the Iowa District Court for Lee County, Ty Rogers, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (10 pages)

            Ethen Ayers appeals his conviction of assault on a correctional officer causing bodily injury.  He contends (1) his trial counsel was ineffective in failing to object to several instances of alleged prosecutorial misconduct and (2) the district court erred in declining to instruct the jury on a justification defense.  OPINION HOLDS: We conclude trial counsel was not ineffective as alleged and the district court appropriately declined to instruct the jury on a justification defense.  We affirm Ayers’s conviction of assault on a correctional officer causing bodily injury.

Case No. 17-1066:  Leon Edward Goedken v. Alliance Pipeline, L.P.

Filed Sep 12, 2018

View Opinion No. 17-1066

           Appeal from the Iowa District Court for Buchanan County, Stephanie C. Rattenborg, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J. (8 pages)

           Alliance Pipeline, L.P., appeals the district court’s dismissal of its small claims appeal as untimely because its original electronic submission prior to the deadline mistakenly designated a brief as a second notice of appeal.  OPINION HOLDS: We find resubmission of the notice of appeal relates back to the original submission one day earlier for the purposes of meeting the appellate deadline.  Accordingly, we reverse the dismissal and remand for further proceedings on the merits.

Case No. 17-1067:  Joseph James Paris v. Alliance Pipeline, L.P.

Filed Sep 12, 2018

View Opinion No. 17-1067

           Appeal from the Iowa District Court for Buchanan County, Stephanie C. Rattenborg, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J. (4 pages)

            Alliance Pipeline, L.P., appeals the district court’s dismissal of its small claims appeal as untimely because its original electronic submission prior to the deadline mistakenly designated a brief as a second notice of appeal.  OPINION HOLDS: We find resubmission of the notice of appeal relates back to the original submission one day earlier for the purposes of meeting the appellate deadline.  Accordingly, we reverse the dismissal and remand for further proceedings on the merits.

Case No. 17-1188:  State of Iowa v. Rogelio Pablo Morales

Filed Sep 12, 2018

View Opinion No. 17-1188

           Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (7 pages)

           Rogelio Morales was convicted of second-degree murder and now appeals from the denial of his motion to suppress statements he made to police officers.  OPINION HOLDS: Under the totality of the circumstances, we agree with the district court that Morales’s nods and subsequent action in answering questions were sufficient to indicate a knowing and voluntary waiver of his Miranda rights. 

Case No. 17-1221:  In re the Marriage of Archer

Filed Sep 12, 2018

View Opinion No. 17-1221

           Appeal from the Iowa District Court for Warren County, John D. Lloyd, Judge.  AFFIRMED AS MODIFIED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (28 pages)

           Victoria Archer appeals the court’s modification of a dissolution decree placing her three minor children in the physical care of their father, Bruce Archer.  She contends the court erred in: (1) denying her multiple requests for continuances due to her health; (2) allowing the guardian ad litem (GAL) to testify and admitting the GAL’s written report into evidence; (3) precluding her from presenting evidence at trial which then led to the erroneous conclusion that Bruce met his burden of proof to modify custody; (4) relying  on facts which predated the prior modification decree; (5) concluding Bruce could provide superior care; and (6) placing onerous conditions on her parenting time in the modified custody decree.  Bruce requests an award of appellate attorney fees.  OPINION HOLDS: We find the court did not abuse its discretion in denying Victoria’s motions for continuances.  We conclude the court erred in admitting the GAL’s report into evidence so we do not consider it in our de novo review.  We affirm Bruce’s request to modify physical care of the three minor children, but modify the visitation schedule to allow Victoria visitation when she is in Iowa.  We find no abuse of discretion and affirm the court’s award of trial attorney fees to Bruce.  We do not award appellate attorney fees to Bruce.

Case No. 17-1319:  Lance Brooks v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1319

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  affirmed.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (11 pages)

            Lance Brooks appeals the denial of his postconviction-relief application, raising claims of error by the postconviction court and alleging ineffective assistance of counsel.  OPINION HOLDS: We affirm the postconviction court’s denial of Brooks’ postconviction-relief application. 

Case No. 17-1391:  In re the Marriage of Ware

Filed Sep 12, 2018

View Opinion No. 17-1391

           Appeal from the Iowa District Court for Jasper County, Bradley McCall, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (12 pages)

Doug Ware appeals the order to pay traditional spousal support, citing the parties’ fourteen-year separation during their twenty-five-year marriage.  Doug also requests an award of appellate attorney fees.  OPINION HOLDS: Based on the statutory factors, the district court did not fail to do equity in awarding Kristi Ware traditional spousal support.  We affirm.  We deny Doug’s request for attorney fees.

Case No. 17-1394:  State of Iowa v. Joel Enrique Herrarte Jr.

Filed Sep 12, 2018

View Opinion No. 17-1394

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            Joel Herrarte Jr. challenges the district court’s determination that kidnapping in the third degree was a lesser-included offense of kidnapping in the second degree.  Alternatively, he claims his trial counsel provided ineffective assistance for urging the court to determine that it was a lesser-included offense.  Additionally, he maintains the trial court relied upon an improper factor during sentencing.  OPINION HOLDS: Herrarte failed to preserve error regarding whether third-degree kidnapping is a lesser-included offense of kidnapping in the second degree, and we do not consider it.  The record is not adequate to decide his alternative argument, raised under the ineffective-assistance framework, so we preserve it to allow for further development of the record in postconviction-relief proceedings.  Because the district court did not rely on an improper factor during sentencing, we affirm Herrarte’s sentences.

Case No. 17-1396:  Betty Andrews v. Alice Carter, Anthony Carter, Cassius Robinson and Dena Robinson

Filed Sep 12, 2018

View Opinion No. 17-1396

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (7 pages)

             Betty Andrews appeals the district court decision quieting title to certain real property in Alice Carter.  OPINION HOLDS: We find Ruby Smiley intended for Alice to have present title to the property, without any reservation of control, when she gave Alice a quit claim deed to the property.  We also find Betty has not established the right to establish a constructive trust by clear, convincing, and satisfactory evidence.  We affirm the decision of the district court.

Case No. 17-1425:  Mario Guerrero-Cordero v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1425

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

           Mario Guerrero Cordero appeals the district court’s denial of his application for postconviction relief. He argues his trial counsel was ineffective in failing to adequately investigate the possibility of using an expert witness to support an intoxication defense.  OPINION HOLDS: We conclude trial counsel diligently pursued an intoxication defense. We affirm the denial of Guerrero Cordero’s application for postconviction relief.

Case No. 17-1433:  In the Interest of S.B., Minor Child

Filed Sep 12, 2018

View Opinion No. 17-1433

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            A father appeals the juvenile court’s decision terminating his parental rights in a private termination action brought by the child’s legal guardian.  OPINION HOLDS:  There is sufficient evidence in the record to show the father abandoned the child and termination of the father’s parental rights is in the child’s best interests.  We affirm the juvenile court.

Case No. 17-1458:  The Carroll Airport Commission (Operating the Arthur N. Neu Municipal Airport) v. Loren W. Danner and Pan Danner

Filed Sep 12, 2018

View Opinion No. 17-1458

           Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (9 pages)

           The defendants, Loren and Pan Danner, appeal from the district court ruling granting the Carroll Airport Commission’s petition for abatement of a nuisance.  The court determined the grain leg built by the Danners on their property, near the Arthur E. Neu Airport, was a nuisance, as it violated local and state zoning ordinances and statutes and ordered the Danners to “abate said nuisance by either removing the grain leg structure or modifying the height of the grain leg structure to be in compliance with the regulations and law concerning the Airport’s protect[ed] airspace.”  On appeal, the Danners contend the “no hazard” letter they obtained from the Federal Aviation Administration (FAA) in July 2013 preempted the district court’s enforcement of state law.  OPINION HOLDS: Because the application of local and state provisions defining the Danners’ grain leg as an airport hazard and a nuisance is not preempted by the FAA’s determination that the grain leg is not a hazard, we affirm the district court’s order requiring the Danners to abate the nuisance. 

Case No. 17-1525:  Christine Keeran v. Quaker Oats Company, Indemnity Insurance Company of North America and Second Injury Fund of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1525

           Appeal from the Iowa District Court for Polk County, Lawrence P. McClellan, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (8 pages)

            Christine Keeran appeals the denial of her request for workers’ compensation benefits for cumulative injuries to her knees.  She alleges the workers’ compensation commissioner used the wrong legal standard regarding causation and the commissioner’s factual findings were not supported by substantial evidence.  OPINION HOLDS: The commissioner used the correct legal standard for causation and substantial evidence supported the commissioner’s factual findings.

Case No. 17-1556:  State of Iowa v. Jason Shimar Keys

Filed Sep 12, 2018

View Opinion No. 17-1556

            Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (3 pages)

            The defendant appeals the district court’s denial of his motion for new trial.  OPINION HOLDS: Because the district court did not abuse its discretion under weight-of-the-evidence standard, we affirm.

Case No. 17-1559:  In the Matter of the Guardianship of D.B., L.B., and A.B.

Filed Sep 12, 2018

View Opinion No. 17-1559

           Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. Dissent by McDonald, J. (14 pages)

            A father, Edward, appeals the district court’s appointment of guardians for three of his children following the death of the custodial mother.  OPINION HOLDS: We find substantial evidence in the record supports the district court’s determination that a guardianship is warranted and the appointment of guardians.  DISSENT ASSERTS: The nonparent guardians failed to rebut the presumption favoring placement with the biological parent.  The district court erred in viewing the nonparent guardians and biological father as holding equal interests in the children.  The father has demonstrated an ability to parent the children by maintaining a relationship with them and providing them with financial support.  His past criminal history does not impair his ability to parent in the present; and post incarceration, the father rehabilitated himself.

Case No. 17-1568:  In re the Marriage of Mack

Filed Sep 12, 2018

View Opinion No. 17-1568

           Appeal from the Iowa District Court for Audubon County, James S. Heckerman, Judge.  AFFIRMED AS MODIFIED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J. (21 pages)

            Eddie Mack appeals from the decree of dissolution of his marriage to Kathy Mack.  He raises four claims: 1) the district court should have imposed discovery sanctions when Kathy failed to turn over business records; (2) the property division was inequitable; (3) the court should have ordered Kathy to pay trial attorney fees; and (4) the decree improperly included a noncompetition clause; limiting Eddie’s future business prospects.  OPINION HOLDS: After our de novo review of the trial record, we find Eddie failed to preserve error on the first issue.  On the remaining claims, we find the decree to be equitable—with two small exceptions.  Due to a mathematical error, we modify Kathy’s equalization payment slightly in Eddie’s favor.  We also order Kathy to pay $7000 toward Eddie’s trial attorney fees.  We affirm the decree as modified. 

Case No. 17-1573:  Craig Helmick and Rita Adam v. Louisa County Board of Supervisors

Filed Sep 12, 2018

View Opinion No. 17-1573

           Appeal from the Iowa District Court for Louisa County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Doyle, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J. (6 pages)

           Craig Helmick and Rita Adam appeal the dismissal of their writ of certiorari challenging the procedure used to remove them from a county board of health.  OPINION HOLDS: The county board of supervisors complied with the correct statutorily-required removal procedure when removing Helmick and Adam.

Case No. 17-1622:  State of Iowa v. Destiny Sumpter

Filed Sep 12, 2018

View Opinion No. 17-1622

            Appeal from the Iowa District Court for Boone County, James B. Malloy and Paul G. Crawford, District Associate Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Destiny Sumpter appeals her convictions for possession of methamphetamine (second offense) and possession of marijuana (second offense).  OPINION HOLDS: We conclude the seizure of Sumpter’s cell phone was supported by probable cause and exigent circumstances.  Accordingly, we affirm the district court’s denial of Sumpter’s suppression motion.

Case No. 17-1646:  Anthony S. Jones v. Great River Medical Center and Maria Schnitzer, M.D.

Filed Sep 12, 2018

View Opinion No. 17-1646

           Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Anthony Jones appeals the district court’s dismissal of his medical malpractice action against Great River Medical Center on statute-of-limitations grounds because Jones’s original electronic filing before expiration of the limitations period omitted counsel’s signature.  OPINION HOLDS: While we find Jones’s resubmission relates back to his original filing, Jones did not serve Great River within ninety days after filing the petition.  Jones did not show good cause for the delay. Accordingly, we affirm the district court’s dismissal.

Case No. 17-1664:  In re the Marriage of Woodhouse

Filed Sep 12, 2018

View Opinion No. 17-1664

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (11 pages)

            Dr. Donald Woodhouse appeals the economic provisions of the decree dissolving his marriage to Dr. Mary Lou Ernst-Woodhouse.  OPINION HOLDS: I. A. We modify the decree to set off $253,730 of the value of the Warren County farm to Mary Lou as inherited property and award each party $245,385 of the remaining value.  B. We decline to set off $90,000 of the Edward Jones account’s value to Donald as inherited property and affirm its award to Mary Lou.  C. To provide a more equitable division of the marital property, we modify the decree to order Mary Lou to make a $300,000 payment to Donald.  II. Because the visitation schedule set forth in the decree provides Donald with more than 167 overnight visits with the parties’ minor child, Donald is entitled to a credit for extraordinary visitation under Iowa Court Rule 9.9.  III. Donald failed to preserve error on his claim concerning Mary Lou’s overpayment of taxes.

Case No. 17-1665:  Steve Gustafson and Janelle Gustafson v. The Board of Adjustment of Buena Vista County, Iowa and Mark Snyder

Filed Sep 12, 2018

View Opinion No. 17-1665

           Appeal from the Iowa District Court for Buena Vista County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (10 pages)

           Steve and Janelle Gustafson appeal the denial of a writ of certiorari of the decision by the county board of adjustment approving a building permit on a nonconforming lot.  OPINION HOLDS: The district court did not err in its denial of the writ of certiorari or in its ordinance interpretation.

Case No. 17-1698:  Max Thorndike v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1698

           Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  Special concurrence by McDonald, J. (9 pages)

            Max Thorndike appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: We find trial counsel was not ineffective, and therefore neither were appellate or PCR counsel.  We affirm the district court.  SPECIAL CONCURRENCE ASSERTS: I concur in the judgment on the ground the applicant failed to preserve error on his claim.

Case No. 17-1736:  State of Iowa v. Kassaun L. Brown

Filed Sep 12, 2018

View Opinion No. 17-1736

            Appeal from the Iowa District Court for Jones County, Chad A. Kepros and Paul D. Miller, Judges.  conviction affirmed and sentence vacated in part.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            Kassaun Brown appeals his conviction and sentence after pleading guilty to one count of assault causing bodily injury.  OPINION HOLDS: I. We preserve Brown’s claim that the district court failed to substantially comply with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(b) for postconviction relief because the record on direct appeal is insufficient.  II. We vacate the portion of Brown’s sentence imposing a criminal fine because the court assessed this amount as a civil penalty when it deferred judgment. 

Case No. 17-1770:  Austin Lee Murray v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 17-1770

           Appeal from the Iowa District Court for Story County, John J. Haney, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J. (6 pages)

           Austin Murray appeals the summary dismissal of his application for postconviction relief.  OPINION HOLDS: Because Murray seeks to challenge his special sentences, which are not yet in effect, the issue is not yet ripe for review, and summary dismissal was appropriate.

Case No. 17-1774:  Ronald William Brinck v. Siouxland Mental Health Center and The Cincinnati Insurance Company

Filed Sep 12, 2018

View Opinion No. 17-1774

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (14 pages)

            Ronald Brinck appeals the dismissal of his petition for judicial review affirming the Workers’ Compensation Commissioner’s denial of his petition to review-reopen a prior action.  OPINION HOLDS: Substantial evidence by way of an expert’s reasonable opinion supports the agency’s determination that Brinck failed to establish his psychosis was proximately caused by his 2009 injury.  Moreover, the district court did not err in affirming the agency’s conclusion that, even if Brinck could establish causation, his claim is barred by res judicata because he could have litigated the issue at the time of his settlement but did not.  Accordingly, we affirm the district court’s ruling denying Brinck’s petition for judicial review.

Case No. 17-1828:  State of Iowa v. Derek E. Ueligger

Filed Sep 12, 2018

View Opinion No. 17-1828

            Appeal from the Iowa District Court for Adair County, Martha L. Mertz and Terry R. Rickers, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (7 pages)

            Derek Ueligger appeals his sentences for two counts of vehicular homicide.  OPINION HOLDS:  Counsel’s failure to object to the admission of a victim impact statement not admissible under statute did not result in a different outcome of the sentencing proceeding, so no prejudice occurred.  We affirm.

Case No. 17-1832:  State of Iowa v. Troy Worby

Filed Sep 12, 2018

View Opinion No. 17-1832

           Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            Troy Worby appeals his sentence for animal neglect.  He alleges the district court imposed unlawful special terms and conditions of probation.  Additionally, he argues he was denied a meaningful right to allocution.  OPINION HOLDS: The special terms and conditions of his probation were lawful, and the court afforded Worby a meaningful allocution.

Case No. 17-1839:  State of Iowa v. Saivon Isaiah McGruder

Filed Sep 12, 2018

View Opinion No. 17-1839

            Appeal from the Iowa District Court for Polk County, Paul Scott and Karen A. Romano, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            Saivon McGruder appeals his convictions of theft in the first and third degrees and robbery in the first degree.  McGruder claims the district court erred in denying his motion for substitute counsel.  OPINION HOLDS: McGruder waived his claim in regard to both theft convictions by pleading guilty to the theft charges and affirming his satisfaction with counsel during his plea.  McGruder did not provide any ground supporting appointment of new counsel in regard to the robbery charge.

Case No. 17-1849:  In re the Marriage of Jensen

Filed Sep 12, 2018

View Opinion No. 17-1849

            Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (15 pages)

            Noah Jensen appeals from the decree dissolving his marriage to Elizabeth (Beth) Stulgies, which modified certain provisions contained in the parties’ separate maintenance decree.  Noah argues the district court acted improperly by treating the petition as a modification, finding a substantial change in circumstances, modifying the custody and care provisions to award joint legal custody and physical care to Beth, and ordering him to pay child support.  He also contends the district court should not have found Beth and her witnesses credible, failed to give proper weight to his expert witness, and decided the issues based on religious grounds.  OPINION HOLDS: We agree with the court’s treatment of the petition as a modification and its determinations of witness credibility, and we find the court did not improperly consider religion.  We also agree Beth showed a substantial change in circumstances warranting modification, and we agree with the court’s awards of joint legal custody, physical care, and child support.  Finally, we award appellate attorney fees to Beth.

Case No. 17-1876:  In the Matter of the Estate of Thomas James Klein, deceased

Filed Sep 12, 2018

View Opinion No. 17-1876

            Appeal from the Iowa District Court for Sac County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  Special Concurrence by Danilson, C.J.  (9 pages).

In this will-contest action, Thomas Klein’s children, Kari Klein Borroel and Matthew Klein, argue the district court erred in granting the executor’s motion for summary judgment.  OPINION HOLDS: Because the witness’s deposition establishes the essential elements to formally execute a will, the district court did not err in granting summary judgment in favor of the estate.  SPECIAL CONCURRENCE ASSERTS: I conclude there is no credibility issue that must be determined by the jury.  The nonmoving party should not be able to avoid summary judgment by raising a credibility issue that does not exist. I agree the district court should be affirmed.

Case No. 17-1987:  Simon Seeding & Sod, Inc. v. Dubuque Human Rights Commission and Jermaine Stapleton

Filed Sep 12, 2018

View Opinion No. 17-1987

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Jermaine Stapleton appeals the district court’s ruling denying his application for appellate attorney fees.  OPINION HOLDS: We reverse the denial of Stapleton’s request for appellate attorney fees.  We remand for consideration of the attorney-fee request on the merits.

Case No. 17-2028:  In re the Marriage of Ficek

Filed Sep 12, 2018

View Opinion No. 17-2028

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  Partial Dissent by Danilson, C.J.  (9 pages)

            Christi Ficek appeals from a decree dissolving her marriage to Lawrence Ficek.  Christi argues the district court erred by granting the parties joint physical custody of their child and awarding Lawrence part of Christi’s retirement account and pension account.  OPINION HOLDS: Because joint physical care is in the best interests of the child, we affirm the decree’s physical care arrangement.  Also, because of Lawrence’s financial and nonfinancial contributions to the marriage, we affirm the district court’s property distribution.  We decline to award either party appellate attorney fees and tax costs to both parties equally.  PARTIAL DISSENT ASSERTS: I respectfully dissent on the issue of physical care but concur in all other respects. I would reverse in part to award Christi physical care of the minor child.

Case No. 17-2034:  In re the Marriage of Widdison

Filed Sep 12, 2018

View Opinion No. 17-2034

            Appeal from the Iowa District Court for Woodbury County, Nancy L. Whittenburg, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Carr, S.J., takes no part.  Opinion by Doyle, J. (9 pages)

            Harold Widdison appeals the order modifying the child-visitation and child-support provisions of the decree dissolving his marriage to Amy Widdison, now known as Amy Dendy.  OPINION HOLDS: I. The slight decrease in Harold’s visitation during the school year is in the children’s best interests.  II. We reverse the portion of the order increasing the amount of Harold’s child-support obligation because Amy did not request any increase.  III. We do not consider Harold’s claim regarding the district court’s failure to disclose information, which he raised for the first time in his reply brief.  IV. Because the district court acted within its discretion in awarding Amy trial attorney fees, we affirm.  Considering the income disparity between the parties, we award Amy $3400 of her appellate attorney fees.

Case No. 17-2055:  In re the Marriage of Bailey

Filed Sep 12, 2018

View Opinion No. 17-2055

            Appeal from the Iowa District Court for Audubon County, Susan L. Christensen, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (19 pages)

            Amie Jo Russell (formerly Bailey) appeals from the district court’s modification of the decree dissolving her marriage to Lee Bailey.  OPINION HOLDS:  Upon our de novo review, we agree with Amie that it is necessary to use Lee’s earning capacity in calculating Amie’s child support obligation under the child support guidelines to provide for the needs of the parties’ minor children and do justice between the parties under the special circumstances of this case.  Consequently, we modify the court’s order and remand for the district court to recalculate Amie’s child support obligation.  We affirm in all other respects.  We do not retain jurisdiction.  Any costs are assessed equally to the parties.

Case No. 17-2104:  State of Iowa v. Benjamin T. Gordon

Filed Sep 12, 2018

View Opinion No. 17-2104

           Appeal from the Iowa District Court for Jasper County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

           Benjamin Gordon appeals his convictions, following guilty pleas, of second-degree theft and third-degree burglary.  He claims his trial counsel was ineffective in allowing him to plead guilty when there was a lack of a factual basis for the charges, specifically the requisite intent.  OPINION HOLDS: We find there is an adequate factual basis in the record. 

Case No. 18-0006:  Miranda Petithory-Metcalf v. State of Iowa

Filed Sep 12, 2018

View Opinion No. 18-0006

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

           Miranda Petithory-Metcalf (Petithory) appeals the district court decision denying her application for postconviction relief from her conviction for second-degree murder.  OPINION HOLDS:  We conclude Petithory has not shown she received ineffective assistance due to defense counsel’s strategic decision to withdraw the motion to suppress a videotape.  We affirm the district court’s decision denying Petithory’s application for postconviction relief.

Case No. 18-0025:  In the Interest of K.C., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0025

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler and Cheryl E. Traum, District Associate Judges.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            K.C. appeals his adjudication as a delinquent for lascivious acts with a child under Iowa Code section 709.8 (2016).  He argues that the district court’s determination was not supported by sufficient evidence because the alleged victim, A.A., was not a credible witness and K.C. lacked the requisite specific intent.  OPINION HOLDS: The district court’s adjudication of K.C. for the delinquent act of lascivious acts with a child is supported with sufficient evidence, thus we affirm.

Case No. 18-0027:  Estate of Lucas Lodermeier v. John L. Timmons

Filed Sep 12, 2018

View Opinion No. 18-0027

            Appeal from the Iowa District Court for Story County, Kurt L. Wilke, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            The estate of Lucas Lodermeier appeals the directed verdict in a legal malpractice claim against John Timmons.  OPINION HOLDS: Because we find no evidence of collectability against the initial defendant to support causation or damages in the malpractice claim, we affirm.

Case No. 18-0046:  State of Iowa v. Elgin Shabazz Richmond Sr.

Filed Sep 12, 2018

View Opinion No. 18-0046

            Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            Elgin Richmond Sr. appeals from the district court’s judgment and sentence, ordering him to pay $3255.20 for expert-witness fees.  He argues the court was wrong to order him to pay his expert-witness fees and failed to determine whether he had the reasonable ability to the pay the fee.  In the alternative, he maintains he received ineffective assistance from trial counsel because counsel failed to request authorization to obtain an expert at public expense and failed to contest Richmond’s ability to pay fees and costs.  OPINION HOLDS: Because we find no error in the court’s decision ordering Richmond to pay his expert-witness fees, we affirm the court’s judgment and sentence.  We preserve Richmond’s claims of ineffective assistance for later postconviction-relief proceedings.

Case No. 18-0056:  Dolgorsuren Schmidt v. James Quinn

Filed Sep 12, 2018

View Opinion No. 18-0056

           Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (7 pages)

           A mother appeals the denial of her petition to modify the physical-care and child support provisions of her dissolution decree.  OPINION HOLDS: Because the mother could not show a material and substantial change in circumstance beyond the contemplation of the decretal court, modification is not warranted.

Case No. 18-0104:  Julie A. Embring v. OB-GYN Specialists, P.C. and Brett R. Richman, M.D.

Filed Sep 12, 2018

View Opinion No. 18-0104

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  affirmed.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            Julie Embring filed a medical malpractice action against Dr. Brett Richman and OB-GYN Specialists, P.C.  Dr. Richman and OB-GYN Specialists sought and were granted summary judgment on the ground that Embring’s lack of expert testimony on the standard of care prevented her from establishing a prima facie case of medical negligence.  OPINION HOLDS: Because there was not good cause to continue trial or to extend Embring’s expert witness deadlines, Embring could not produce an expert opinion to support her claim of medical negligence and the district court properly granted summary judgment for Dr. Richman and OB-GYN Specialists.

Case No. 18-0183:  In re the Marriage of Flaugh

Filed Sep 12, 2018

View Opinion No. 18-0183

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the physical care and visitation provisions of the parties’ dissolution decree.  OPINION HOLDS: We find the father is the more stable parent and he should have physical care of the child.  The mother’s proposed adjustment to the visitation schedule would not be in the child’s best interests.  We affirm the physical care and visitation provisions of the dissolution decree.

Case No. 18-0246:  In the Matter of M.R., Alleged to be Seriously Mentally Impaired

Filed Sep 12, 2018

View Opinion No. 18-0246

            Appeal from the Iowa District Court for Johnson County, Kevin Mckeever, Judge.  APPEAL DISMISSED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (4 pages)

            M.R. appeals an order of the district court finding he remains seriously mentally impaired.  M.R. argues the State failed to prove he lacked sufficient judgment to make reasonable decisions about his treatment, and there was not substantial evidence of dangerousness because there was no evidence of a recent overt act, attempt, or threat.  OPINION HOLDS: Because M.R.’s appeal was not timely filed, we lack jurisdiction and dismiss his appeal.

Case No. 18-0280:  In the Interest of G.M., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0280

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The father appeals the termination of his parental rights to his child, G.M.  The father maintains there is not clear and convincing evidence he abandoned his child within the meaning of Iowa Code section 600A.8(3)(b) (2017) and termination is not in the child’s best interests.  OPINION HOLDS: Because there is clear and convincing evidence the father abandoned the child and termination is in G.M.’s best interests, we affirm.

Case No. 18-0300:  State of Iowa v. Sam Chester Thomas II

Filed Sep 12, 2018

View Opinion No. 18-0300

            Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Sam Thomas appeals his convictions for operating a motor vehicle while intoxicated, third offense, and driving while barred, contending the district court abused its discretion in failing to honor a plea agreement without giving him an opportunity to withdraw his plea.  OPINION HOLDS: The court did not agree to be bound by the sentencing recommendation, and we discern no abuse of discretion in the district court’s decision to impose terms of incarceration.  We affirm.

Case No. 18-0465:  In the Interest of B.A., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0465

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the termination of his parental rights to his minor child contending the State failed to prove the grounds for termination cited by the district court.  OPINION HOLDS: We affirm the termination of the father’s parental rights to his minor child.

Case No. 18-0531:  In the Interest of L.C. and K.C., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0531

           Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Blane, S.J.  Opinion by Blane, S.J. (13 pages)

            A father appeals from termination of his parental rights to two children.  OPINION HOLDS: Clear and convincing evidence supports termination of the father’s parental rights under Iowa Code section 232.116(1)(h) (2018).  Termination is in the children’s best interests, and no statutory exception should be applied to prevent termination.  We find no grounds to support the father’s request for an additional six months or for a guardianship in his mother.  We affirm the juvenile court. 

Case No. 18-0558:  In the Interest of B.B. and E.B., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0558

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  Special Concurrence by Danilson, C.J.  (10 pages)

            A father appeals from the juvenile court order adjudicating two of his five children, E.B. and B.B., in need of assistance, pursuant to Iowa Code section 232.2(6)(b) (2017).  He contends the State did not present clear and convincing evidence of physical abuse or neglect or that physical abuse or neglect were imminently likely, and continued adjudication is not in the children’s best interests.  OPINION HOLDS: On our de novo review, we find adjudication was supported as to B.B. but not E.B.  Accordingly, we affirm in part and reverse in part.  SPECIAL CONCURRENCE ASSERTS: I write separately to expand upon why In re D.B., No.17-0740, 2017 WL 4317337, at *6 (Iowa Ct. App. Sept. 27, 2017), does not serve to support adjudication of E.B. in this case. 

Case No. 18-0696:  In the Interest of J.B., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0696

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  REVERSED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by Potterfield, P.J. (11 pages)

            The guardian ad litem for J.B., joined by the State, appeals both the district court order dismissing the State’s petition to terminate parental rights and the permanency order continuing reunification efforts with the mother.  OPINION HOLDS: Because we find the State proved the grounds for termination by clear and convincing evidence, we reverse the district court’s order dismissing the State’s petition and terminate the mother’s parental rights. 

Case No. 18-0851:  In the Interest of C.V. and J.V., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0851

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (8 pages)

            A mother and father separately appeal the termination of parental rights.  OPINION HOLDS:  Because we find clear and convincing evidence that grounds for termination of the mother’s parental rights were established under Iowa Code section 232.116(1)(h) (2017), termination of the parents’ parental rights is in the children’s best interests, reasonable services for reunification were provided, and an extension of time for reunification is not supported under the facts of the case, we affirm the juvenile court’s order terminating the parents’ parental rights.

Case No. 18-0855:  In the Interest of A.S., T.S., and K.R., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0855

           Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (10 pages)

           A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS:  We find the State made reasonable efforts to help the mother, demonstrated by clear and convincing evidence that the children could not be returned to the mother’s custody, an extension of time is unwarranted, and termination is in the best interests of the children.  We affirm.

Case No. 18-0890:  In the Interest of R.M. and K.M., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0890

            Appeal from the Iowa District Court for Mills County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            A mother and father appeal the termination of their parental rights to their children.  Both parents challenge the evidence supporting the grounds for termination cited by the district court.  The father also argues the State failed to make reasonable efforts toward reunification, termination was not in the children’s best interests, and the court should have declined to terminate his parental rights based on the strength of the parent-child bond.  OPINION HOLDS: We affirm the termination of the parents’ rights to the children.

Case No. 18-0921:  In the Interest of T.I. and M.I., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0921

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the order removing her children from her care.  OPINION HOLDS: Because the State presented sufficient evidence to justify the temporary removal of the children from the mother’s home, we affirm. 

Case No. 18-0934:  In the Interest of P.H., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0934

            Appeal from the Iowa District Court for Chickasaw County, David F. Staudt, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (5 pages)

            A mother appeals the termination of her parental rights under Iowa Code section 232.116(1)(f) (2018), arguing the State failed to prove P.H. could not be returned to the mother’s custody at the time.  OPINION HOLDS: We find the statutory grounds for termination were established by clear and convincing evidence.  We affirm the juvenile court order terminating the mother’s parental rights.

Case No. 18-0937:  In the Interest of A.H. and I.H., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-0937

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (7 pages)

            A father appeals the termination of his parental rights to his two children, contending: (1) the State failed to prove the statutory grounds for termination by clear and convincing evidence, (2) termination is not in the best interests of the children, and (3) the statutory exception contained in Iowa Code section 232.116(3)(c) (2018) should be applied to preclude termination.  OPINION HOLDS: Upon our de novo review, we affirm the termination of the father’s parental rights. 

Case No. 18-0986:  In the Interest of E.T., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-0986

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because we find the State proved the grounds for termination under Iowa Code section 232.116(1)(f) (2018) by clear and convincing evidence, the mother was provided reasonable efforts, and termination is in the child’s best interests, we affirm. 

Case No. 18-1023:  In the Interest of P.J., C.J., T.J., and G.J., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1023

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            A father appeals the child-in-need-of-assistance adjudication order temporarily removing his children from his care and the dispositional order continuing their removal.  OPINION HOLDS:  The father’s claim regarding the adjudication order is moot.  The children’s continued removal from the father’s care is supported by clear and convincing evidence.  We affirm.

Case No. 18-1028:  In the Interest of M.M., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1028

            Appeal from the Iowa District Court for Woodbury County, Mary L. McCollum Timko, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            Michelle appeals the termination of her parental rights in her child.  Michelle’s parents, as intervenors, appeal the placement of the child’s custody and control with the Iowa Department of Human Services (IDHS) instead of them.  OPINION HOLDS: The child could not be returned to the mother’s care without continued risk of harm.  Termination was appropriate.  Because the intervenors failed to show they could provide adequate care for the child, we conclude the juvenile court did not err in placing custody and control of the child with IDHS.

Case No. 18-1042:  In the Interest of N.Y. and F.Y., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1042

            Appeal from the Iowa District Court for Jones County, Deborah F. Minot, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights.  Termination of her rights is in the children’s best interests.  The mother has not met her burden to establish an exception to termination should be applied.  We affirm the decision of the juvenile court.

Case No. 18-1059:  In the Interest of B.C., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1059

           Appeal from the Iowa District Court for Decatur County, Monty W. Franklin, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (7 pages)

           The father appeals the termination of his parental rights to B.C., born in 2011, arguing he can care for his child at present.  OPINION HOLDS: We agree with the trial court that the child cannot be returned to the father at present without risk of adjudicatory harm.  Because there is clear and convincing evidence to support termination under Iowa Code section 232.116(1)(f) (2018) and termination is in the child’s best interest, we affirm the termination of the father’s parental rights.

Case No. 18-1070:  In the Interest of J.B. and O.B., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1070

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother and a father separately appeal the termination of their parental rights to their children.  OPINION HOLDS: On de novo review of the evidence admitted properly at the termination hearing, we conclude clear and convincing evidence supports the grounds for termination under Iowa Code section 232.116(1)(h) (2018) and delaying termination is contrary to the children’s best interests.  The record shows that in spite of the efforts made to preserve the family, the children could not be returned to the care of either the mother or the father at the time of the termination hearing.

Case No. 18-1071:  In the Interest of S.F. and T.S., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1071

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (7 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: The father’s parental rights were properly terminated under section 232.116(1)(h) (2018), no exceptions apply, and termination is in the child’s best interests.  We affirm.

Case No. 18-1095:  In the Interest of G.Y., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1095

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  conditionally affirmed and remanded.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            A father appeals the termination of his parental rights to his son, arguing the juvenile court erred in three respects: First, by failing to send the proper notice under the Iowa Indian Child Welfare Act (ICWA) to the Native American tribe of his claimed ancestry; second, by terminating his parental rights when the State failed to make reasonable efforts to reunify him with his son as required by Iowa Code section 232.102(6)(b) (2018); and third, by finding the State proved the child could not be returned to his custody.  OPINION HOLDS: We find the father’s affidavit regarding his Native American heritage places the court on alert the child may have Native American heritage, triggering the tribal notice requirements of the Iowa ICWA; but the father failed to preserve error on his reasonable-efforts claim, and the statutory grounds for termination were established by clear and convincing evidence. Accordingly, we conditionally affirm, but remand for the purpose of providing proper notice to any interested Indian tribe.

Case No. 18-1106:  In the Interest of A.W., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1106

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (12 pages)

            A mother and father separately appeal the termination of their parental rights to A.W., born in March 2017.  The father argues: (1) the State failed to present clear and convincing evidence of the grounds for termination, (2) termination is not in the child’s best interests, (3) statutory exceptions to termination apply, and (4) additional time for reunification should be granted.  The mother challenges only the court’s denial of a six-month extension.  OPINION HOLDS: We find by clear and convincing evidence the grounds for terminating the father’s rights, termination is in A.W.’s best interests, and no statutory exceptions to termination apply.  We decline to grant either parent an extension and affirm the decision of the juvenile court to terminate the father’s and mother’s parental rights.

Case No. 18-1116:  In the Interest of D.R., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1116

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            A mother appeals the termination of her parental rights in her child.  She challenges certain statutory grounds for termination and requests an additional six months to work toward reunification.  OPINION HOLDS: Because the mother does not challenge all statutory bases relied upon, we terminate based on those grounds she did not challenge without further consideration.  We find an additional six months would be inappropriate because the grounds for termination will likely remain.

Case No. 18-1130:  In the Interest of N.M., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1130

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (3 pages)

            The father appeals the termination of his parental rights to N.M.  He argues termination is not in the child’s best interests and he asks for additional time for reunification.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 18-1134:  In the Interest of K.N., L.N., and V.N., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1134

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (6 pages)

            A father appeals the termination of his parental rights to his three children.  OPINION HOLDS: We agree with the district court that the statutory grounds for termination were met and that termination was in the children’s best interests. 

Case No. 18-1139:  In the Interest of T.B., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1139

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (12 pages)

            A mother appeals the termination of her parental rights in her child.  OPINION HOLDS: The State established the statutory elements authorizing termination, the conditions giving rise to termination would not abate in six months, and termination is in the child’s best interest.  The State made reasonable efforts supporting reunification.  The State also complied with the Indian Child Welfare Act.  The mother did not preserve her challenge related to the social history report because she did not bring her challenge at the juvenile court.

Case No. 18-1159:  In the Interest of T.P., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1159

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED on both appeals.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (6 pages)

            The mother and father separately appeal the termination of their parental rights to their son, T.P.  They argue the statutory grounds for termination have not been met and termination is not in the child’s best interests.  OPINION HOLDS: The statutory grounds for termination have been met and the parents have not demonstrated they are capable of caring for T.P. now or in the future.  Therefore, we affirm. 

Case No. 18-1165:  In the Interest of L.B., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1165

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by McDonald, J.  (4 pages)

            A father appeals a dispositional order placing his child in the custody of the Iowa Department of Human Services  for placement in family foster care. He challenges both the juvenile court’s grant of custody to the Department and the Department’s placement of the child in foster care.  OPINION HOLDS: Because the Department was the preferable custodian, the juvenile court did not err in granting the Department custody of the child. We find that the father’s challenge to the Department’s placement of the child in foster care fails because the Department, as legal custodian of the child, has the authority to place the child in foster care.

Case No. 18-1167:  In the Interest of E.C., Minor Child

Filed Sep 12, 2018

View Opinion No. 18-1167

            Appeal from the Iowa District Court for Cass County, Amy L. Zacharias, District Associate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (13 pages)

            The father appeals the termination of his parental rights to his child, E.C.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(d), (h), and (i) (2018).  The father challenges the statutory grounds, maintains termination is not in E.C.’s best interests, and argues a permissive factor weighs against termination.  He asks us to reverse the termination and return E.C. to his care but argues in the alternative that the juvenile court should have given him an extension of time to work toward reunification.  OPINION HOLDS: Upon our de novo review of the record, there is not clear and convincing evidence to support any of the statutory grounds for termination.  We reverse the juvenile court’s termination of the father’s parental rights to E.C. and remand for dismissal of the termination petition as to the father.

Case No. 18-1177:  In the Interest of J.B., M.S., and A.S., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1177

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Intervenors R.W. and S.W., relatives of three siblings, contend the department of human services failed to make reasonable efforts to keep the three siblings together.  OPINION HOLDS: We reverse and remand for the department to satisfy its statutory obligation under Iowa Code section 232.108 (2018) to make reasonable efforts to keep the siblings together as well as its statutory obligation to give preference to relatives in the placement decision.  

Case No. 18-1193:  In the Interest of A.R., B.R., A.M., and R.T., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1193

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (10 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights and termination of her rights is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 18-1239:  In the Interest of J.K. and S.K., Minor Children

Filed Sep 12, 2018

View Opinion No. 18-1239

            Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            A mother appeals the termination of her parental rights to her two minor children, born in 2007 and 2011.  She argues: (1) the State failed to prove the statutory grounds for termination by clear and convincing evidence, (2) termination is not in the best interests of the children, (3) the juvenile court should have applied the statutory exception to termination contained in Iowa Code section 232.116(3)(c) (2018), and (4) the court erred in declining to grant her a six-month extension to work toward reunification.  OPINION HOLDS: We conclude the State presented sufficient evidence to support termination, termination is in the best interests of the children, the application of an exception to termination is unwarranted, and the mother is not entitled to an extension.  We affirm the juvenile court order terminating the mother’s parental rights. 

Case No. 16-1921:  Carlston Frederick Donald v. State of Iowa

Filed Aug 15, 2018

View Opinion No. 16-1921

           Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (9 pages)

           Carlston Donald appeals the district court’s denial of his application for postconviction relief.  He argues his appellate counsel was ineffective in failing to (1) challenge the weight of the evidence underlying the conviction and (2) file a proof brief or follow the protocol for frivolous appeals contained in Iowa Rule of Appellate Procedure 6.1005 (2009).  OPINION HOLDS: We conclude appellate counsel was not ineffective in declining to challenge the weight of the evidence and Donald did not preserve error on his claim concerning rule 6.1005.  We affirm the denial of his application for postconviction relief. 

Case No. 17-0111:  State of Iowa v. Albert Garcia

Filed Aug 15, 2018

View Opinion No. 17-0111

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  Special Concurrence by Tabor and Potterfield, JJ.  (13 pages)

            Albert Garcia appeals his convictions for two counts of first-degree murder and two counts of first-degree robbery, contending: (1) a police detective lacked the qualifications to provide expert testimony about cell phone technology; (2) accomplice testimony was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in failing to object to an instruction informing the jury it could consider his out-of-court statements “just as if they had been made at trial”; and (4) his murder convictions and sentences should be vacated under a merger doctrine.  OPINION HOLDS: We affirm Garcia’s judgment and sentences.  SPECIAL CONCURRENCE ASSERTS: I would find counsel failed in an essential duty by not objecting earlier to the officer’s testimony regarding the use of cellular phone tower technology and data.  The State did not establish that the officer had specific knowledge of this technology.  I would also find the district court erred in instructing the jurors they could consider Garcia’s out-of-court statements “just as if they had been made at trial,” consistent with my prior dissenting opinions in State v. Yenger, No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018), and State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct. App. Mar. 7, 2018).  Nonetheless, I join the majority because Garcia cannot show he was prejudiced as a result of these failures. 

Case No. 17-0467:  In the Matter of the Estate of Donald G. Speck, deceased

Filed Aug 15, 2018

View Opinion No. 17-0467

           Appeal from the Iowa District Court for Warren County, Patrick W. Greenwood, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (10 pages)

           The children of Donald Speck appeal a district court order granting a petition to probate a lost will filed by Donald’s ex-son-in-law under which he was a beneficiary and co-executor and the majority of Donald’s children were disinherited.  The children argue the presumption of revocation was not rebutted by clear, satisfactory, and convincing evidence and assert the court erroneously shifted the burden of proof to them.  OPINION HOLDS:  We find substantial evidence supports the district court’s conclusion the presumption of revocation by the testator of his 2012 will was rebutted.  We affirm the decision of the district court.

Case No. 17-0539:  Michael Webster v. State of Iowa

Filed Aug 15, 2018

View Opinion No. 17-0539

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (12 pages)

            Michael Webster appeals the summary dismissal of his application for postconviction relief.  opinion holds: Upon our de novo review, we conclude Webster failed to establish he was similarly situated to persons convicted of second-degree robbery on or after July 1, 2016.  Moreover, Webster did not show a heightened-scrutiny analysis applied to his claim, nor did he establish there was no rational basis for the legislature’s determination not to make the sentencing provision at issue prospective only.  For all these reasons, we affirm the district court’s summary dismissal of Webster’s PCR application.

Case No. 17-0641:  In re the Detention of Cory Blake West

Filed Aug 15, 2018

View Opinion No. 17-0641

           Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Scott, S.J.  Opinion by Danilson, C.J. (10 pages)

           Cory West appeals from the jury verdict finding that his mental abnormality has not changed such that he is suitable for discharge from civil commitment as a sexually violent predator (SVP).  OPINION HOLDS: The jury was free to reject West’s expert’s opinion and accept the opinion of the State’s expert.  The record reveals substantial evidence from which the jury could find beyond a reasonable doubt that West remains subject to confinement as a SVP. 

Case No. 17-0695:  State of Iowa v. Isaiah T. Buchanan

Filed Aug 15, 2018

View Opinion No. 17-0695

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (26 pages)

            Isaiah Buchanan appeals from his convictions for first-degree robbery, being a felon in possession of a firearm, and carrying weapons.  Buchanan asserts the district court erred in instructing the jury that a claim of right is not a defense to theft because he did not raise the defense.  In the alternative, he maintains that if this court concludes the claim-of-right defense was implicated, his trial counsel was ineffective in failing to assert it affirmatively.  Buchanan also contends the court erred in denying Buchanan’s request to have three jurors removed for cause.  Finally, he claims the district court erred in allowing the State to play the recordings of his jailhouse phone calls.  OPINION HOLDS:  We are not convinced Buchanan has suffered any prejudice as a result of the claim-of-right jury instruction.  He cannot establish his trial attorney breached an essential duty in failing to raise a claim-of-right defense; this ineffective-assistance-of-counsel claim thus fails.  With respect to Buchanan’s juror challenge, Buchanan must show that the result was a juror being seated who was not impartial, which Buchanan has not attempted to do.  Finally, we find no prejudicial error in the admission of the recorded jail phone calls.  We therefore affirm his convictions.

Case No. 17-0805:  In re the Marriage of Balik

Filed Aug 15, 2018

View Opinion No. 17-0805

   

            Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.  AFFIRMED AS MODIFIED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Deborah Balik appeals the economic provisions of the decree dissolving her marriage to David Balik.  She contends (1) the district court inequitably divided their assets; (2) she should have been awarded spousal support; and (3) David should have been ordered to pay her trial attorney fees.  She also seeks an award of appellate attorney fees.  OPINION HOLDS: We affirm the dissolution decree in all respects except we modify the property division portion of the decree to award Deborah an additional $59,216, payable within 180 days after procedendo in this appeal issues.  We further modify the spousal support provision to grant Deborah $500 per month in spousal support until she becomes eligible for Medicare benefits.  We order David to pay $3500 towards Deborah’s appellate attorney fee obligation.

Case No. 17-0882:  State of Iowa v. Robert Powell, Jr.

Filed Aug 15, 2018

View Opinion No. 17-0882

           Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter and Michael J. Shubatt, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

           Robert Powell Jr. appeals the judgments and sentences entered following his guilty plea.  OPINION HOLDS: Because Powell failed to perform in accordance with the terms of the plea agreement, there is no merit to his claims of ineffective assistance of counsel based on counsel’s failure to argue that the plea agreement was “null and void” or to object to the prosecutor’s refusal to comply with the sentencing recommendation at the sentencing hearing. 

Case No. 17-0914:  State of Iowa v. Fernando Lopez-Aguilar

Filed Aug 15, 2018

View Opinion No. 17-0914

           Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (21 pages)

            Lopez-Aguilar appeals his convictions arising out of a traffic accident.  On appeal, he (1) argues the district court abused its discretion when denying his motion for mistrial, (2) challenges the sufficiency of the evidence of his reckless conduct, (3) and makes several claims of ineffective assistance.  OPINION HOLDS: The district court did not abuse its discretion in denying the motion for mistrial.  Sufficient evidence supported a finding of recklessness.  All but one of Lopez-Aguilar’s ineffective-assistance claims fails.  On the remaining claim alleging counsel should have objected to allegedly inconsistent verdicts, we preserve the claim so that a complete record may be developed.

Case No. 17-1062:  State of Iowa v. Eric Guadalupe Davila

Filed Aug 15, 2018

View Opinion No. 17-1062

           Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (9 pages)

            Eric Davila appeals his conviction and sentence for second-degree murder.  OPINION HOLDS: The district court did not abuse its discretion in denying a motion for mistrial based on a violation of a motion in limine because there was no violation.  Davila’s trial counsel was not ineffective for failing to object to a jury instruction because it accurately stated the law.  The district court considered his ability to pay before ordering restitution.

Case No. 17-1128:  State of Iowa v. Jill Tjernagel

Filed Aug 15, 2018

View Opinion No. 17-1128

           Appeal from the Iowa District Court for Hamilton County, James A. McGlynn, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mullins, J.  (5 pages)

           Jill Tjernagel appeals the district court’s denial of her motion to dismiss a criminal prosecution following a reversal of her conviction and remand for a new trial, contending the district court had authority and jurisdiction to consider the motion to dismiss and the court therefore erred in declining to entertain the merits of the motion.  The State agrees the court erred in declining to entertain the merits of the motion but argues the error was harmless because Tjernagel’s motion would have failed on the merits.  The State requests that we consider the merits of the dismissal motion for the first time on appeal, affirm the denial of the motion, and remand the case for a new trial.  OPINION HOLDS: We decline to consider the merits of the motion to dismiss for the first time on appeal.  We therefore reverse the district court’s denial of Tjernagel’s motion to dismiss and remand the matter to the district court for consideration of the motion on the merits.  We decline Tjernagel’s request that we instruct the district court to allow a subpoena on the prosecutors from her first trial for the purpose of developing a factual record. 

Case No. 17-1253:  Andreas Benford v. State of Iowa

Filed Aug 15, 2018

View Opinion No. 17-1253

           Appeal from the Iowa District Court for Jasper County, Bradley McCall, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

           Andreas Benford appeals the denial of his application for postconviction relief.  He argues the district court erred in finding he must pursue his claims through administrative action and he failed to exhaust his administrative remedies.  OPINION HOLDS: The Iowa Board of Parole has discretion to address Benford’s claims, but he did not appeal to the Board.  Therefore, the district court did not err in denying his application because he failed to exhaust his administrative remedies. 

Case No. 17-1277:  Shawn Deshay Hoosman v. State of Iowa

Filed Aug 15, 2018

View Opinion No. 17-1277

           Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., McDonald, J., and Blane, S.J.  Opinion by Blane, S.J. (7 pages)

           Shawn Hoosman appeals from the denial of his application for postconviction relief (PCR).  He maintains his PCR counsel committed structural error and asks that we remand for a new trial of his PCR application.  OPINION HOLDS: As trial counsel’s testimony could have no effect on most, if not all, of Hoosman’s PCR claims, we cannot conclude the failure to call trial counsel amounted to a structural error.  We affirm.

Case No. 17-1306:  In re the Detention of Dempsey

Filed Aug 15, 2018

View Opinion No. 17-1306

           Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (5 pages)

           Eric Dempsey appeals from the jury verdict finding him to be a sexually violent predator subject to civil commitment under Iowa Code chapter 229A (2015).  Dempsey challenges the sufficiency of the evidence showing that he is a sexually violent predator.  OPINION HOLDS: We conclude there is sufficient evidence and affirm.

Case No. 17-1372:  State of Iowa v. Paul Joseph Hopkins

Filed Aug 15, 2018

View Opinion No. 17-1372

            Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (8 pages)

            Paul Hopkins appeals his conviction for extortion, challenging (1) his trial attorney’s failure to request a jury instruction defining the “threat” required for extortion and (2) the district court’s colloquy to establish whether his post-trial waiver of his right to counsel was knowing, voluntary, and intelligent.  OPINION HOLDS: We affirm the jury’s finding of guilt.  We affirm the jury’s finding of guilt, which was obtained with counsel.  We reverse the uncounseled post-trial proceedings and remand for post-trial proceedings with the benefit of counsel or a knowing, intelligent and voluntary waiver of counsel. 

Case No. 17-1422:  Woodruff Construction, LLC v. K.W. "Casey" Clark

Filed Aug 15, 2018

View Opinion No. 17-1422

            Appeal from the Iowa District Court for Chickasaw County, James C. Bauch, Judge.  REVERSED AND REMANDED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (19 pages)

            Woodruff Construction, LLC, appeals the district court’s decision not to pierce the corporate veil of Clark Farms, Ltd. and enforce a judgment debt against K.W. Clark.  OPINION HOLDS: We find insufficient evidence of undercapitalization, but the corporation’s finances were commingled, it did not have separate books, and it did not observe the corporate formalities.  We determine the corporate veil should be pierced.

Case No. 17-1487:  J.R., a minor by her next friend, TaNeale Towner v. Michael G. Rush and Ann M. Rush

Filed Aug 15, 2018

View Opinion No. 17-1487

           Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (8 pages)

           J.R. appeals from the order denying her motion for summary judgment on her conversion claim and granting dismissal in favor of defendants.  OPINION HOLDS: Neither party has established entitlement to dismissal or summary judgment on the conversion claim.  Reading the petition in the light most favorable to J.R., we cannot conclude her claim could not be sustained under any state of facts provable under the petition.  Dismissal was not appropriate.  On the other hand, the facts presented establish, at least minimally, the existence of a disputed material fact regarding the conversion claim.  Summary judgment was not appropriate.  We reverse the district court order granting defendants’ motion to dismiss, affirm the denial of J.R.’s motion for summary judgment, and remand for further proceedings. 

Case No. 17-1531:  Chad Stechcon v. State of Iowa

Filed Aug 15, 2018

View Opinion No. 17-1531

            Appeal from the Iowa District Court for Benton County, Chad A. Kepros and Christopher L. Bruns, Judges.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J. (6 pages)

            Chad Stechcon appeals the district court’s summary dismissal of his application for postconviction relief as time-barred, seeking to circumvent the time bar by arguing his “court-appointed postconviction relief counsel was ineffective in failing to file his application for postconviction relief in a timely fashion.”  OPINION HOLDS: We conclude postconviction counsel breached an essential duty and the failure amounted to structural error.  We reverse and remand for adjudication of the merits of Stechon’s untimely filed postconviction-relief application. 

Case No. 17-1537:  Antonio Smith v. All Stor Fort Knox, LLC

Filed Aug 15, 2018

View Opinion No. 17-1537

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Antonio Smith appeals from the district court’s order granting summary judgment and dismissing his negligence and spoliation claims.  OPINION HOLDS:  We find the contractual limitation of liability provision is clear, unambiguous, unequivocal, and enforceable.  The district court correctly dismissed the claims. 

Case No. 17-1642:  James Lee Leiran v. Jeaneen Lynne Kleppe

Filed Aug 15, 2018

View Opinion No. 17-1642

           Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (10 pages)

           James Leiran appeals the district court’s denial of his petition to modify the physical-care determination regarding the three children he shares with Jeaneen Kleppe.  The district court found James established a material and substantial change in circumstances since the entry of the original decree but determined he had failed to establish that he could provide the children with care superior to that provided by Jeaneen.  OPINION HOLDS: We understand James’s concern regarding Jeaneen’s fiancé, but under these circumstances, we cannot say James established that he can provide the children superior care.  We affirm the district court’s denial of James’s petition to modify the physical-care arrangement.

Case No. 17-1674:  Jim Jamison d/b/a J&S AG Services v. Darrell J. Coddington and Wendy Coddington

Filed Aug 15, 2018

View Opinion No. 17-1674

           Appeal from the Iowa District Court for Wayne County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Vogel, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J. (10 pages)

           Plaintiff Jim Jamison d/b/a J & S Ag Services appeals from the district court’s grant of defendants Darrell and Wendy Coddington’s motion for summary judgment.  OPINION HOLDS: After our review of the record in this case, we find the district court properly found no dispute of material fact, correctly applied the law, and did not err in granting the Coddingtons’ motion for summary judgment.

Case No. 17-1757:  State of Iowa v. Derek Christopher Mills

Filed Aug 15, 2018

View Opinion No. 17-1757

           Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J. (13 pages)

Derek Mills appeals his conviction for criminal mischief in the fourth degree.  He argues the district court erred in allowing five prosecution exhibits into evidence over his authentication and hearsay objections.  Alternatively, he argues he received ineffective assistance of counsel when his attorney failed to object to other evidence the State offered.  OPINION HOLDS: Because three of the challenged exhibits were improperly admitted, and their admission was not harmless, we reverse the conviction and remand for a new trial.  We do not reach Mills’s claims concerning effectiveness of trial counsel.

Case No. 17-1791:  State of Iowa v. Kham Khiene Khoang

Filed Aug 15, 2018

View Opinion No. 17-1791

           Appeal from the Iowa District Court for Polk County, Karen A. Romano and David N. May, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (7 pages)

           Kham Khoang appeals the denial of his motion to suppress and subsequent conviction, claiming the interrogation violated his due process rights.  OPINION HOLDS:  We find the motion to suppress was properly denied and there is no constitutional right to a recorded interrogation.

Case No. 17-1794:  State of Iowa v. Jerald David Frost

Filed Aug 15, 2018

View Opinion No. 17-1794

           Appeal from the Iowa District Court for Linn County, Russell G. Keast, Nicholas L. Scott, and Casey D. Jones, District Associate Judges.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  Partial Dissent by Vogel, J.  (12 pages)

           Jerald Frost appeals the district court’s denial of a motion to suppress evidence prior to a guilty verdict for possession of methamphetamine.  He argues police violated his constitutional protection against unreasonable search and seizure when they removed and opened several closed containers discovered in his pocket during a patdown search.  OPINION HOLDS: The record shows police did not seize Frost and Frost voluntarily consented to a patdown search.  During the patdown search, police exceeded the scope of Frost’s consent by searching inside his pocket, removing the containers, and opening them.  Because the search of the pocket and containers was impermissible, the resulting evidence should have been suppressed.  We reverse the district court’s judgment of conviction and remand for a new trial in which the impermissible evidence is excluded.  PARTIAL DISSENT ASSERTS: I believe the record reveals that Frost consented to the search of his person.

Case No. 17-1840:  In re the Marriage of Lesline

Filed Aug 15, 2018

View Opinion No. 17-1840

           Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (10 pages)

           Jimmy Lesline appeals the custody, child-support, and division-of-assets determinations of a decree of dissolution.  OPINION HOLDS: We affirm the physical care, child support, and economic provisions of the dissolution decree.  We deny the requests for appellate attorney fees.

Case No. 17-1861:  State of Iowa v. Cody Aldean Logan

Filed Aug 15, 2018

View Opinion No. 17-1861

           Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (5 pages)

            Cody Logan appeals his conviction for possession of marijuana, second offense.  He argues a search warrant was not supported by probable cause.  OPINION HOLDS: Viewing the totality of the circumstances, we conclude the warrant was supported by probable cause.

Case No. 17-1862:  In the Interest of L.T., K.T., E.T., T.T., and J.T., Minor Children

Filed Aug 15, 2018

View Opinion No. 17-1862

            Appeal from the Iowa District Court for Woodbury County, Mary J. Sokolovske, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A father appeals the private termination of his parental rights in his five children.  OPINION HOLDS: Termination of the father’s rights is appropriate because he sexually abused three of the children, has had no contact with the children for several years, and is serving a life sentence.

Case No. 17-1921:  State of Iowa v. Patrick Earl Sumerall

Filed Aug 15, 2018

View Opinion No. 17-1921

           Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (6 pages)

           Patrick Sumerall appeals the sentences imposed upon his guilty pleas to conspiracy to commit a forcible felony and carrying weapons, contending the district court considered impermissible sentencing factors.  OPINION HOLDS:  The sentences imposed by the district court were based on valid and permissible considerations.  We affirm.

Case No. 17-1946:  In re the Marriage of McConnelee

Filed Aug 15, 2018

View Opinion No. 17-1946

           Appeal from the Iowa District Court for Buchanan County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (8 pages)

           Brian McConnelee appeals from an order modifying the visitation and tax-dependency provisions of the decree dissolving his marriage to Malinda McConnelee.  OPINION HOLDS: Brian’s unresolved substance-abuse issues, denial that his drug use was a problem, unresolved criminal proceedings, and extended unemployment constitute a change of circumstances warranting modification of the visitation schedule.  For the same reasons, a substantial change of circumstances has been proved to modify the tax-exemption provisions.  The use of the tax exemption is of little to no benefit to Brian as long as he is unemployed.  Finding no failure to do equity, we affirm.

Case No. 17-1972:  In re the Marriage of Tarrence

Filed Aug 15, 2018

View Opinion No. 17-1972

           Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

           Joseph Tarrence appeals from the decree dissolving his marriage to Shelby Tarrence.  He asks us to award physical care of their children to him or award joint physical care and to make a corresponding change in his child support obligation.  Both parties request appellate attorney fees.  OPINION HOLDS: We find the district court’s factual determinations are supported by the record and affirm the physical care award and child support calculation.  We also find Shelby is entitled to partial appellate attorney fees.

Case No. 17-2107:  State of Iowa v. Daman Julian

Filed Aug 15, 2018

View Opinion No. 17-2107

           Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor and Mark R. Lawson, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by Bower, J.  (6 pages)

           Daman Julian appeals his convictions for sponsoring a gathering where a controlled substance was used and two counts of possession of methamphetamine.  OPINION HOLDS:  We find the court did not abuse its discretion in sentencing Julian because its decision was supported by the evidence.  We affirm Julian’s convictions.

Case No. 18-0011:  In re the Marriage of Rodasky

Filed Aug 15, 2018

View Opinion No. 18-0011

            Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (3 pages)

            Daniel Rodasky appeals from the district court’s order modifying his and Marsha Rodasky’s dissolution decree.  OPINION HOLDS: Because the district court properly declined to retroactively decrease Daniel’s child support order and equitably alternated the dependency deduction, we affirm.

Case No. 18-0031:  State of Iowa v. Brandon Howard Cornelison

Filed Aug 15, 2018

View Opinion No. 18-0031

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Brandon Cornelison appeals his sentence following his guilty plea to second-degree theft, claiming the district court applied a fixed policy against imposition of deferred judgments.  OPINION HOLDS: The court exercised its discretion, and we discern no abuse of discretion in the court’s sentencing decision.

Case No. 18-0263:  State of Iowa v. Michael Alexander LaJeunesse

Filed Aug 15, 2018

View Opinion No. 18-0263

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            Michael LaJeunesse challenges his restitution plan of payment.  He contends the district court erred in failing to make a finding that LaJeunesse had the reasonable ability to pay restitution.  OPINION HOLDS: The district court found LaJenunesse had the reasonable ability to pay the payment plan installments.

Case No. 18-0384:  In the Interest of J.C.W., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0384

            Appeal from the Iowa District Court for Sioux County, Brian L. Michaelson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (3 pages)

            A mother appeals the termination of her parental rights under Iowa Code chapter 600A (2017).  OPINION HOLDS: Because the mother abandoned the child by failing to maintain substantial and continuous or repeated contact with the child as defined in section 600A.8(3)(b), we affirm the termination of the mother’s parental rights.

Case No. 18-0415:  In the Interest of I.M., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0415

           Appeal from the Iowa District Court for Marion County, Steven W. Guiter, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (11 pages)

           The mother appeals the termination of her parental rights to her child, I.M., who was born in 2007.  The mother maintains there is not clear and convincing evidence to support the termination of her rights pursuant to Iowa Code section 232.116(1)(f) (2017) as I.M. could be returned to her care at the time of the termination hearing.  She also contends termination is not in I.M.’s best interests.  OPINION HOLDS: Because I.M. could not be returned to his mother’s care at the time of the termination hearing, termination is in his best interests, and no permissive factor weighs against it, we affirm the termination of the mother’s parental rights to I.M. 

Case No. 18-0432:  In the Interest of S.P., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0432

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED IN PART AND VACATED IN PART.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            The maternal grandmother and guardian of a child, C.P., appeals the termination of the mother’s parental rights and the termination of her guardianship.  OPINION HOLDS: We do not address C.P.’s claims regarding the permanency order.  We affirm the juvenile court’s order terminating the rights of the parents.  We vacate the portion of the termination order addressing C.P.’s guardianship because the juvenile court did not have subject matter jurisdiction to address the issue.

Case No. 18-0494:  In the Interest of H.P., M.P., and M.P., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0494

            Appeal from the Iowa District Court for Buena Vista County, Mary L. McCollum Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(b) (2017) due to her abandonment of the children.  Termination is in the children’s best interests, and we decline the mother’s request for additional time. 

Case No. 18-0534:  In the Interest of M.Q. and C.Q., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0534

           Appeal from the Iowa District Court for Buena Vista County, Mary L. McCollum Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (7 pages)

            A father appeals from termination of his parental rights to two children.  OPINION HOLDS: On our de novo review of the record, we reach the same conclusion as the juvenile court which said the father’s actions “are the epitome of the word abandonment.”  We further conclude it is in the children’s best interests to terminate the father’s parental rights. 

Case No. 18-0650:  In the Interest of M.G., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0650

           Appeal from the Iowa District Court for Pottawattamie County, Gary K. Anderson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (8 pages)

            A mother and father appeal the termination of their parental rights in their child.  OPINION HOLDS: Termination was appropriate under Iowa Code section 232.116(1)(i) (2017) due to life-threatening physical abuse by the father.  Given the father’s refusal to admit to the abuse and the mother’s commitment to remain involved with the father, additional reunification services would not eliminate the need for removal.  Additionally, no permissive factors weigh against termination.

Case No. 18-0727:  In the Interest of S.L. and K.C., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0727

           Appeal from the Iowa District Court for Pottawattamie County, Gary K. Anderson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (4 pages)

           A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: We affirm the juvenile court order terminating both parents’ parental rights to the children in interest.   

Case No. 18-0775:  In the Interest of M.G., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0775

           Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.  Tabor, J., takes no part.  Opinion by Scott, S.J. (7 pages)

           A mother and father each appeal the juvenile court’s decision terminating their parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the parental rights of the mother and father.  The court properly denied the mother’s request for additional time to work toward reunification.  The State engaged in reasonable efforts to reunite the father and the child.  On our de novo review, we give weight to the juvenile court’s credibility determinations.  The court properly determined termination of the parents’ rights was in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 18-0786:  In the Interest of A.S., K.S., K.S., and K.S., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0786

           Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (6 pages)

           Two fathers appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of each father’s parental rights and termination is in the best interests of the children.  We affirm the juvenile court’s decision terminating the fathers’ parental rights.

Case No. 18-0835:  In the Interest of H.B. and L.G., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0835

           Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J. (8 pages)

           A mother appeals the termination of her parental rights to her children, born in 2012 and 2014.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to these children.

Case No. 18-0840:  In the Interest of B.D. and N.D., Minor Children

Filed Aug 15, 2018

View Opinion No. 18-0840

           Appeal from the Iowa District Court for Jones County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mulilns,  J. (13 pages)

           A mother appeals the termination of her parental rights.  OPINION HOLDS: We find the statutory grounds for termination under Iowa Code section 232.116(1)(f) (2018) were established by clear and convincing evidence, termination is in the best interests of the children, and an extension of time is unwarranted.  We affirm the juvenile court’s order terminating the mother’s parental rights.

Case No. 18-0912:  In the Interest of L.M., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0912

           Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J. (4 pages)

           The juvenile court terminated the mother’s and father’s parental rights to their child, L.M., pursuant to Iowa Code section 232.116(1)(d) and (h) (2017).  The mother only nominally appeals the termination, while the father challenges the sufficiency of the evidence supporting one of the grounds for termination, whether termination was in the child’s best interests, and the juvenile court’s determination no permissive factor should be applied to save the parent-child relationship.  OPINION HOLDS:  We affirm the termination of the mother’s and the father’s parental rights to L.M.

Case No. 18-0919:  In the Interest of N.H., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0919

           Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J. (6 pages)

           Maternal grandmother-intervenor appeals from the juvenile court’s order denying her motion to modify placement.  OPINION HOLDS: Upon our review, we affirm.

Case No. 18-0933:  In the Interest of M.R., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-0933

           Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (6 pages)

           The minor child appeals from a provision of the dispositional order in this child-in-need-of-assistance proceeding.  He challenges the requirement that he “participate in and complete a second psychosexual evaluation.”  OPINION HOLDS: The order of a second evaluation is not clearly unreasonable or for untenable reasons.  Finding no abuse of discretion, we affirm.

Case No. 18-1055:  In the Interest of A.F., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-1055

            Appeal from the Iowa District Court for Boone County, James B. Malloy, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            The mother and father separately appeal the termination of their parental rights to their child, A.F., who was born in October 2011.  Each parent challenges the determination that termination is in A.F.’s best interests and claims the court should have found that a permissive factor precludes termination and should have saved the parent-child relationships by placing A.F. in a guardianship with her paternal grandmother rather than terminating the parental rights.  OPINION HOLDS: The paternal grandmother’s willingness to enter into a guardianship does not make the arrangement the best choice for A.F., who has struggled for want of stability.  As each parent may spend the rest of A.F.’s childhood in prison, termination of their parental rights is in A.F.’s best interests and no permissive factor outweighs termination.  We affirm on both appeals.

Case No. 18-1062:  In the Interest of J.H., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-1062

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (5 pages)

            The mother appeals the district court’s termination of her parental rights to her son, J.H.  She argues the statutory grounds for termination were not met, termination was not in J.H.’s best interests, and she should have additional time for reunification.  OPINION HOLDS: Due to the mother’s untreated mental-health and substance-abuse problems, we affirm the termination.

Case No. 18-1079:  In the Interest of X.M., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-1079

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (9 pages)

            The mother appeals the district court’s termination of her parental rights to her son, X.M.  She argues the State did not prove X.M. could not be safely returned to her custody, the State did not make reasonable efforts to return X.M. to her custody, and termination is not in X.M.’s best interest.  OPINION HOLDS: The district court properly terminated the mother’s parental rights under paragraph (f) because she is unable to provide the supervision he needs.  Termination is in X.M.’s best interests, and no factors preclude termination.

Case No. 18-1081:  In the Interest of D.C., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-1081

           Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to a child, born in 2010.  She contends the State failed to prove the grounds for termination cited by the district court and termination was not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her child.

Case No. 18-1115:  In the Interest of D.P., Minor Child

Filed Aug 15, 2018

View Opinion No. 18-1115

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            A father appeals the termination of his parental rights to his child, contending (1) the State failed to prove the ground for termination cited by the district court and (2) termination should have been deferred for six months.  OPINION HOLDS: We affirm the termination of the father’s parental rights to his child.

Case No. 16-1328:  Duane Yates v. State of Iowa

Filed Aug 01, 2018

View Opinion No. 16-1328

Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (4 pages)

Duane Yates appeals the district court order dismissing his motion to reopen a postconviction-relief (PCR) action that was dismissed ten years earlier due to his counsel’s failure to prosecute the matter.  OPINION HOLDS: Following the dismissal of his first PCR action, Yates had the opportunity to have his claims heard and decided on the merits.  He cannot relitigate those claims.  Accordingly, we affirm the denial of Yates’s motion to reopen the first PCR proceeding.

Case No. 17-0312:  Cynthia Pesce v. City of Des Moines and The Animal Rescue League of Iowa, Inc.

Filed Aug 01, 2018

View Opinion No. 17-0312

           Appeal from the Iowa District Court for Polk County, Bradley McCall, Judge.  AFFIRMED ON APPEAL.  WRIT ANNULLED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  McDonald, J., takes no part.  Per Curiam.  (13 pages)

           Cynthia Pesce appeals the district court’s actions in reassigning her seized-property claim to a civil matter, dismissing her second seized-property claim, and holding a hearing after she filed a motion to dismiss and notices of appeal.  Her attorney, Jaysen McCleary, petitions for writ of certiorari regarding the district court’s imposition of sanctions for his actions in the proceeding.  OPINION HOLDS: The district court did not err or abuse its discretion in managing Pesce’s seized-property claims or in holding the hearing.  Additionally, the district court did not abuse its discretion in imposing sanctions

Case No. 17-0382:  Michael Kelly v. State of Iowa

Filed Aug 01, 2018

View Opinion No. 17-0382

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., McDonald, J., and Blane, S.J.  Opinion by Potterfield, P.J. (10 pages)

           Michael Kelly appeals the dismissal of his third application for postconviction relief (PCR).  OPINION HOLDS: Kelly’s claim that he received an illegal sentence is a claim that can be brought at any time; thus, we reverse the PCR court’s dismissal of that claim and remand to the PCR court.  As for the rest of his third PCR application, Kelly has not established that any exception to the three-year statute of limitations applies, and we agree with the PCR court that it is time-barred and must be dismissed. 

Case No. 17-0668:  State of Iowa v. Jeffrey Ure Murdock

Filed Aug 01, 2018

View Opinion No. 17-0668

           Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (5 pages)

           Jeffrey Murdock appeals his conviction following his guilty plea for failure to comply with sex offender registry requirements, second or subsequent offense, in violation of Iowa Code sections 692A.104 and 692A.111 (2016).  He contends his trial counsel was ineffective in allowing him to plead guilty when there was no factual basis for the plea.  The State asserts the record establishes a factual basis.  OPINION HOLDS: Because we agree the record contains a factual basis for Murdock’s guilty plea, we affirm.

Case No. 17-0744:  State of Iowa v. Darrell Lee McBride

Filed Aug 01, 2018

View Opinion No. 17-0744

Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.  Opinion by Potterfield, P.J. (19 pages)

           Darrell McBride appeals from his convictions for two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(1)(b)(2) (2016).  McBride maintains there is insufficient evidence to support either conviction.  He also challenges two of the district court’s evidentiary rulings and maintains he should have been granted a new trial due to juror bias.  OPINION HOLDS: Because substantial evidence supports both of McBride’s convictions, he has not established that the district court wrongly decided his evidentiary objections, and the district court did not abuse its discretion in denying his motion for new trial on the basis of juror bias, we affirm. 

Case No. 17-0812:  State of Iowa v. Desmond D. Reeves

Filed Aug 01, 2018

View Opinion No. 17-0812

            Appeal from the Iowa District Court for Jackson County, Thomas G. Reidel and Nancy S. Tabor, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  Tabor, J., takes no part.  (10 pages)

            Desmond Reeves appeals his convictions for robbery in the first degree and assault with intent to inflict serious injury.  OPINION HOLDS: We find substantial evidence supports the jury’s verdict, including evidence of Reeves’s intent to commit theft as an element of the offense of robbery.  We conclude the district court did not abuse its discretion in concluding character evidence concerning a witness was not admissible because it was not relevant.  We find Reeves’s pro claims were not preserved or not supported by argument in his brief.  We affirm Reeves’s convictions.

 

Case No. 17-0898:  State of Iowa v. Ryan Lee Stockbauer

Filed Aug 01, 2018

View Opinion No. 17-0898

           Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (5 pages)

      Ryan Stockbauer appeals his convictions for operating while intoxicated and possession of methamphetamine.  Stockbauer argues his trial counsel was ineffective in failing to object to alleged prosecutorial error or misconduct during voir dire, opening statement, presentation of evidence, and closing argument.  OPINION HOLDS: Because the record is inadequate to assess the merits of the ineffective-assistance claims, we uphold the conviction but preserve the ineffective-assistance claims for possible postconviction-relief proceedings.

Case No. 17-0913:  State of Iowa v. Mejdil Ahmetovic

Filed Aug 01, 2018

View Opinion No. 17-0913

      Appeal from the Iowa District Court for Polk County, David N. May, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (11 pages)

            Mejdil Ahmetovic appeals his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp.  He asserts the district court erred in denying his motion to suppress evidence, contending the warrantless traffic stop and subsequent searches of his pocket and an automobile in which he was a passenger violated his constitutional rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.  OPINION HOLDS: We affirm in all respects the district court’s denial of Ahmetovic’s motion to suppress.

Case No. 17-1034:  State of Iowa v. Elijah Javon Wilson

Filed Aug 01, 2018

View Opinion No. 17-1034

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Elijah Wilson appeals his conviction for first-degree robbery, in violation of Iowa Code section 711.2 (2016).  OPINION HOLDS:  Wilson claims the district court abused its discretion by sentencing him to prison instead of placing him on probation.  Wilson also claims he received ineffective assistance because defense counsel permitted him to plead guilty, thereby waiving his claim the matter should be transferred to juvenile court.  We affirm the district court, but determine Wilson’s claim of ineffective assistance should be preserved for possible postconviction proceedings.

Case No. 17-1043:  State of Iowa v. Abel Quijas, Jr.

Filed Aug 01, 2018

View Opinion No. 17-1043

           Appeal from the Iowa District Court for Fayette County, David P. Odekirk and Richard D. Stochl, Judges.  REVERSED AND REMANDED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (7 pages)

           Abel Quijas, Jr. appeals the district court’s dismissal of his petition to modify restitution.  On appeal, Quijas argues (1) he is entitled to assistance of counsel to challenge the restitution order, (2) the imposition of room-and-board restitution without a hearing creates an illegal sentence—entitling him to assistance of counsel, and (3) he is entitled to a hearing to determine if he has the reasonable ability to pay the ordered restitution.  OPINION HOLDS: Because Quijas filed his petition more than thirty days after judgment entry his claim is civil in nature, and he is not entitled to assistance of counsel.  The imposition of room-and-board restitution without a hearing does not amount to an illegal sentence.  Because on its face, Quijas’s petition is not frivolous, the district court abused its discretion in denying the petition without a hearing.

Case No. 17-1060:  LM Construction LLC v. Altoona Hospitality LLC

Filed Aug 01, 2018

View Opinion No. 17-1060

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A contractor appeals from the district court decision to strike an amended resistance to summary judgment and grant of summary judgment on a petition to foreclose a mechanic’s lien.  OPINION HOLDS:  We conclude the amended resistance was untimely and LM Construction did not follow statutory requirements for a mechanic’s lien.  We affirm the district court.

Case No. 17-1095:  State of Iowa v. Steven Chaney

Filed Aug 01, 2018

View Opinion No. 17-1095

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  AFFIRMED.  Opinion by Mullins, J.  (7 pages)

            Steven Chaney appeals his convictions, following a jury trial, of assault on a peace officer and interference with official acts, contending the district court abused its discretion in denying his motion in limine requesting exclusion of a portion of a video displaying the circumstances of his arrest.  Chaney specifically argues the evidence’s probative value was substantially outweighed by the danger of unfair prejudice.  OPINION HOLDS: We conclude the danger of unfair prejudice, if any, did not substantially outweigh the challenged evidence’s probative value.  In the alternative, we conclude any possible prejudice flowing from the challenged evidence was harmless, as the jury’s mixed verdict reveals it was not unduly inflamed and the convictions were supported by overwhelming evidence of guilt.  We affirm Chaney’s convictions.

Case No. 17-1147:  State of Iowa v. Rodney L. Hanneman

Filed Aug 01, 2018

View Opinion No. 17-1147

           Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (9 pages)

           Rodney Hanneman appeals from his conviction for theft in the second degree, claiming there is insufficient evidence to support the verdict.  OPINION HOLDS: We find Hanneman’s claim of insufficient evidence was properly preserved and substantial evidence supports the jury’s determination Hanneman took property owned by another with the intent to permanently deprive. 

Case No. 17-1179:  State of Iowa v. Marco Imanuel Martinez

Filed Aug 01, 2018

View Opinion No. 17-1179

           Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Carr, S.J.  Opinion by Vogel, P.J. (7 pages)

           Marco Martinez appeals his conviction for criminal mischief in the second degree.  He argues the evidence is insufficient to support his conviction, and the district court abused its discretion when it admitted a photograph as evidence.  OPINION HOLDS: Substantial evidence supports Martinez’s conviction, and the district court did not abuse its discretion in finding a proper foundation to admit the photograph. 

Case No. 17-1187:  State of Iowa v. Daniel Haywood

Filed Aug 01, 2018

View Opinion No. 17-1187

           Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Danilson, C.J., McDonald, J., and Mahan, S.J.  Opinion by Danilson, C.J.  Special concurrence by McDonald, J. (6 pages)

           Daniel Haywood entered a guilty plea to three of five counts of forgery and the remaining two counts were dismissed.  He challenges as illegal the sentence imposing court costs related to the dismissed charges.  OPINION HOLDS: The plea agreement specifically provided for Haywood to pay restitution for the dismissed counts and restitution includes payment of court costs.  Finding no legal error, we affirm.  SPECIAL CONCURRENCE ASSERTS: I concur in the conclusion the defendant failed to prove he was assessed any costs not attributable to his convictions.

Case No. 17-1210:  State of Iowa v. Matthew A. McCanna

Filed Aug 01, 2018

View Opinion No. 17-1210

Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J. (5 pages)

            Matthew McCanna appeals his judgment and sentence following his guilty plea to absence from custody.  OPINION HOLDS: We affirm McCanna’s judgment and sentence for absence from custody.

Case No. 17-1236:  State of Iowa v. Nora Pettyjohn

Filed Aug 01, 2018

View Opinion No. 17-1236

           Appeal from the Iowa District Court for Marion County, James D. Birkenholz, District Associate Judge, Terry L. Wilson, Judge, and Steven W. Guiter, District Associate Judge.  CONVICTIONS AFFIRMED.  SENTENCES VACATED.  REMANDED FOR RESENTENCING.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (12 pages)

           Nora Pettyjohn appeals her convictions for operating while intoxicated and possession of methamphetamine, second offense.  She argues the court erred in denying her motion to suppress, imposing an illegal sentence, and imposing consecutive sentences without stating the reasons for doing so.  She also argues generally the evidence is insufficient to support her convictions and her counsel was ineffective for failing to file a motion to amend or enlarge the court’s findings.  OPINION HOLDS: We find the court correctly denied her motion to suppress and her sentence was not illegal but rather a procedural sentencing issue not preserved on appeal.  We further find sufficient evidence supports her convictions, and her counsel was not ineffective for failing to request the trial court to amend or enlarge its findings.  However, the court erred in failing to state its reasoning for consecutive sentences. 

Case No. 17-1255:  LM Construction LLC v. HGIK Hospitality LLC

Filed Aug 01, 2018

View Opinion No. 17-1255

            Appeal from the Iowa District Court for Story County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A contractor appeals from the district court’s grant of summary judgment on a petition to foreclose a mechanic’s lien.  OPINION HOLDS:  We find LM Construction did not preserve error on the question of a contract with the general contractor and did not follow statutory requirements for a mechanic’s lien as a sub-subcontractor.  We affirm the district court.

Case No. 17-1275:  Susan Sheeler v. Nevada Community School District, Dr. Steve Gray, Justin Gross, and Brian Schaeffer

Filed Aug 01, 2018

View Opinion No. 17-1275

              Appeal from the Iowa District Court for Story County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Susan Sheeler appeals the district court’s grant of a directed verdict in favor of defendants on her constitutional claims.  OPINION HOLDS:  We find Sheeler was not deprived of her right to due process in her termination hearing and did not have her right against self-incrimination infringed upon, affirming the district court. 

Case No. 17-1290:  State of Iowa v. Leon Chevelle Anderson

Filed Aug 01, 2018

View Opinion No. 17-1290

Appeal from the Iowa District Court for Buchanan County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

           Leon Anderson appeals from his conviction of second-degree burglary, claiming there is insufficient evidence to show he entered an occupied structure without right, license, or privilege to enter.  OPINION HOLDS: Substantial evidence supports the victims were occupants of the apartment and had revoked Anderson’s access to the apartment at the time of his entry.  Therefore, Anderson entered the apartment with no right, license, or privilege to enter, and his conviction for burglary in the second degree is affirmed.

Case No. 17-1318:  State of Iowa v. Eduardo Cano

Filed Aug 01, 2018

View Opinion No. 17-1318

           Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple and Bradley J. Harris, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

           Eduardo Cano appeals after pleading guilty to assault with intent to commit serious injury, asserting a claim of ineffective assistance for counsel’s failure to advise him of certain immigration consequences of his plea.  OPINION HOLDS: Because we find the record on direct appeal inadequate to resolve Cano’s ineffective-assistance-of-counsel claim, we affirm his conviction, judgment, and sentence, and we preserve his claim for possible postconviction-relief proceedings to allow the record to be developed.

Case No. 17-1359:  State of Iowa v. Oscar Marco Gipson

Filed Aug 01, 2018

View Opinion No. 17-1359

Appeal from the Iowa District Court for Polk County, Robert J. Blink and Scott D. Rosenberg, Judges.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J. (6 pages)

           Oscar Marco Gipson contends the State did not show substantial evidence to support a jury verdict that he committed the offense of going armed with intent.  He argues there was insufficient evidence he intended to shoot another person.  OPINION HOLDS: Ample evidence in the record, along with the reasonable inferences from that evidence, shows Gipson shot into an occupied bar with the intent to shoot his girlfriend, with whom he was having relationship problems.  Gipson confronted and argued with her at a bar and watched her leave and go to another bar.  He then sprayed the bar with bullets from a semiautomatic weapon.  Substantial evidence supports the jury verdict.  Therefore we affirm. 

Case No. 17-1403:  State of Iowa v. Amy Lee Howell

Filed Aug 01, 2018

View Opinion No. 17-1403

Appeal from the Iowa District Court for Marshall County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (7 pages)

            Amy Howell appeals her judgment and sentence following a guilty plea.  OPINION HOLDS: We affirm Howell’s judgment and sentence for ongoing criminal conduct and unauthorized use of a credit card. 

Case No. 17-1464:  Amanda L. Luck v. Michael F. Salmon

Filed Aug 01, 2018

View Opinion No. 17-1464

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J. (7 pages)

           Michael Salmon, father of K.S., appeals the district court’s award of physical care to the mother, Amanda Luck.  He contends his request for shared care is in K.S.’s best interests.  In the alternative, he asks for additional visitation time.  He also seeks reduction or elimination of his obligation to pay Amanda’s trial attorney fees.  OPINION HOLDS: Reviewing the facts anew, we reach the same conclusions about the physical care and visitation provisions: Michael’s history of violence against Amanda and their contentious relationship make a shared care arrangement untenable and not in K.S.’s best interests.  The attorney fee award is also in the sound discretion of the district court, and we see no reason to disturb it given the income disparity between the parties and the reasonable efforts of counsel.  We also find Amanda is entitled to some reasonable appellate attorney fees and remand to the district court to determine an appropriate award.

Case No. 17-1492:  Diana Verdught v. Lee County, Iowa

Filed Aug 01, 2018

View Opinion No. 17-1492

           Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (8 pages)

           A plaintiff appeals the district court judge's denial of a motion for recusal.  OPINION HOLDS: The court did not abuse its discretion in denying the motion for recusal because there was no conflict of interest and plaintiff did not establish resulting prejudice.

Case No. 17-1529:  State of Iowa v. Paul Mark Kingery

Filed Aug 01, 2018

View Opinion No. 17-1529

           Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR ENTRY OF CORRECTED SENTENCING ORDER.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (11 pages)

           Paul Kingery appeals the convictions entered following his Alford pleas to two counts of lascivious acts with a child.  On appeal, he claims his pleas lacked factual bases and the court therefore erred in accepting them.  He also claims his Alford pleas were involuntary and unknowing, and the court failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b) by failing to advise him of applicable surcharges before accepting his plea.  Finally, Kingery claims the imposition of Iowa Code section 911.2B (2015) surcharges violated the ex post facto clauses of the United States and Iowa Constitutions.  OPINION HOLDS:  Upon our review, we conclude: (1) each charge was supported by a factual basis in the record, (2) Kingery failed to preserve error on his claim that his plea was involuntary and unknowing, and (3) the imposition of a sexual abuse surcharge violated the ex post facto clauses.  We affirm Kingery’s convictions but partially vacate his sentence and remand for entry of a corrected sentencing order. 

Case No. 17-1541:  State of Iowa v. Joseph Eugene Shade

Filed Aug 01, 2018

View Opinion No. 17-1541

Appeal from the Iowa District Court for Polk County, Karen A. Romano and Carla T. Schemmel, Judges.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (9 pages)

            Joseph Shade appeals his sentence for first-degree robbery.  Shade argues he received ineffective assistance of counsel because his attorney did not argue the sentencing court was required to hold a Miller hearing before sentencing.  He also claims the court erred in imposing a law-enforcement-initiative surcharge.  OPINION HOLDS: Because the court did not sentence Shade to a mandatory-minimum term of incarceration, a Miller hearing was not required, and counsel was not ineffective for failing to request one.  The court erred in imposing the law-enforcement-initiative surcharge because it is not authorized by statute for this offense.

Case No. 17-1543:  Bruce Evan Martin v. State of Iowa

Filed Aug 01, 2018

View Opinion No. 17-1543

Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (5 pages)

           Bruce Martin appeals the order granting summary disposition of his fifth application for postconviction relief (PCR).  OPINION HOLDS: The “newly discovered evidence” claims Martin raised in his fifth PCR application were either litigated in an earlier PCR proceeding or not proven to be newly discovered.  Accordingly, we affirm the order granting the State’s motion for summary disposition of his PCR action.  Because the result of the PCR proceeding would not have changed had PCR counsel performed as Martin suggests, his claim of ineffective assistance of PCR counsel also fails.

Case No. 17-1582:  State of Iowa v. Scott Robert Sandstrom

Filed Aug 01, 2018

View Opinion No. 17-1582

           Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (8 pages)

           Scott Sandstrom appeals from the sentence imposed following his guilty pleas, contending he did not voluntarily waive use of the presentence investigation.  He also asserts the court failed to consider letters filed with the court, made an erroneous reference to matters outside the record, and gave inadequate reasons for the sentence imposed.  OPINION HOLDS: Finding no legal errors or abuse of the court’s discretion, we affirm.

Case No. 17-1630:  Tracie Prier v. Mary Billhymer

Filed Aug 01, 2018

View Opinion No. 17-1630

           Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J. (5 pages)

           Tracie Prier appeals the district court decision dismissing her action for failure to timely serve notice on Mary Billhymer.  OPINION HOLDS: Prier did not serve Billhymer with notice of the lawsuit within ninety days after the petition was filed and did not file a motion for an extension of time to serve notice.  We conclude Prier has not shown good cause for the delay in serving Billhymer.  We affirm the district court’s decision dismissing the action.

Case No. 17-1672:  Wanda Horn v. Timothy Arnold Horn

Filed Aug 01, 2018

View Opinion No. 17-1672

Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.  REVERSED AND REMANDED.  Considered by Danilson, C.J., Mullins, J., and Blane, S.J.  Opinion by Blane, S.J. (10 pages)

            Timothy Horn appeals from the district court order modifying a consent protective order.  The protected party is his estranged wife, Wanda.  Tim contends the court applied the wrong standard in modifying the consent order and the evidence did not warrant modification.  Wanda contends the court applied the correct standard but the appeal is moot.  OPINION HOLDS: On our review, we find the district court applied an incorrect legal standard in determining the order should be modified and insufficient evidence supported the modification.  We reverse the modification and reinstate the prior protective order, excluding a now moot provision that ended prior to the appeal. 

Case No. 17-1886:  In the Matter of D.B., Alleged to be Seriously Mentally Impaired

Filed Aug 01, 2018

View Opinion No. 17-1886

           Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge. AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (5 pages)

           D.B. appeals a district court’s civil commitment order.  He argues the State failed to demonstrate he would physically injure himself or others if allowed to remain at liberty.  OPINION HOLDS: Substantial evidence was presented supporting the district court’s finding of serious mental impairment.  We affirm the civil commitment order.

Case No. 17-1928:  State of Iowa v. Marvella Ann Harms

Filed Aug 01, 2018

View Opinion No. 17-1928

Appeal from the Iowa District Court for Hancock County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Danilson, C.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J. (3 pages)

           Marvella Harms appeals the sentence imposed upon her conviction of second-degree arson, contending the district court abused its discretion in sentencing her to a term of incarceration.  OPINION HOLDS: Finding no abuse of discretion, we affirm Harms’s sentence.

Case No. 17-2002:  In re the Marriage of Anderson

Filed Aug 01, 2018

View Opinion No. 17-2002

Appeal from the Iowa District Court for Story County, John J. Haney, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (8 pages)

           Abby Anderson appeals, and Michael Anderson cross-appeals, from the decree dissolving their marriage.  OPINION HOLDS: We affirm the district court’s thorough and well-reasoned decree in its entirety. 

Case No. 18-0474:  In the Interest of P.K., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0474

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (5 pages)

           A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: The grounds for termination under Iowa Code section 232.116(1)(h) (2017) have been satisfied because clear and convincing evidence shows the court could not return the child to either parent’s care at the time of the termination hearing without exposing the child to harm that would lead to a child-in-need-of-assistance adjudication.  Because termination is in the child’s best interests and application of any of the exceptions to the termination statute is not, we affirm on both appeals.

Case No. 18-0600:  In the Interest of C.M., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0600

           Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

           A father appeals the termination of his parental rights to his minor child, contending termination is not in the child’s best interests.  OPINION HOLDS: We agree with the juvenile court that termination is in the child’s best interests.  We affirm the termination of the father’s parental rights. 

Case No. 18-0609:  In the Interest of A.T., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0609

           Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (5 pages)

           A mother appeals the termination of her parental rights.  OPINION HOLDS:  We find there is substantial evidence in the record to support termination of the mother’s parental rights.  We conclude termination of the mother’s parental rights is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 18-0614:  In the Interest of W.B., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0614

Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (7 pages)

           A mother appeals the termination of her parental rights to her child, born in 2008.  She contends (1) the record lacks clear and convincing evidence the child could not be returned to her custody; (2) termination was not in the child’s best interests; (3) termination was inappropriate, given the child’s preferences and objection to termination and the closeness of the parent-child bond; and (4) the court should have placed the child in a guardianship in lieu of terminating her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her child.

Case No. 18-0681:  In the Interest of A.B., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0681

            Appeal from the Iowa District Court for Woodbury County, Mary L. McCollum Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J.  (7 pages)

            A mother appeals from the termination of her parental rights to her child, A.B., pursuant to Iowa Code section 232.116(1)(b), (d), (e), (g), (h), and (l) (2018).  She does not contest the grounds for termination, but rather asserts the juvenile court made mistakes of fact and misapplied the law.  OPINION HOLDS: Based on the evidence reflecting the mother has not maintained contact with A.B. and has not demonstrated a likelihood of long-standing sobriety, we find termination of the mother’s parental rights to A.B. is in A.B.’s best interest.  We therefore affirm.

Case No. 18-0869:  In the Interest of J.R., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0869

Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J. (9 pages)

           A father appeals the juvenile court order adjudicating his child a child in need of assistance.  OPINION HOLDS: We find the juvenile court’s adjudication of the child as a child in need of assistance under Iowa Code section 232.2(6)(b) and (c)(2) (2018) is not supported by clear and convincing evidence and reverse the ruling of the juvenile court.

Case No. 18-0913:  In the Interest of J.H. and V.J., Minor Children

Filed Aug 01, 2018

View Opinion No. 18-0913

            Appeal from the Iowa District Court for Monona County, Mark C. Cord III, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother appeals the juvenile court’s child-in-need-of-assistance permanency order and the termination of her parental rights.  OPINION HOLDS:  We affirm the juvenile court’s permanency order and termination of the mother’s parental rights.

Case No. 18-0943:  In the Interest of K.K., K.K., and R.K., Minor Children

Filed Aug 01, 2018

View Opinion No. 18-0943

Appeal from the Iowa District Court for Crawford County, Mary L. McCollum Timko, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (10 pages)

            A mother and father appeal the termination of their parental rights in their child, and the father also appeals the termination of his rights to two additional children.  OPINION HOLDS: As to the father, the district court properly terminated his parental rights due to his substance-related disorder.  As to the mother, the district court properly terminated her rights because the same issues supporting prior terminations of her older children remain, and she is unlikely to resolve the identified issues.  The district court also properly denied both parents an additional six months to work toward reunification because there is no indication that grounds for termination will no longer exist in six months’ time.

Case No. 18-0947:  In the Interest of M.D., K.T., G.A., E.A. and S.A., Minor Children

Filed Aug 01, 2018

View Opinion No. 18-0947

Appeal from the Iowa District Court for Ida County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (4 pages)

A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: Because the juvenile court did not abuse its discretion in denying the mother’s motion to continue the termination hearing and the termination hearing procedure was good enough to meet minimum due process requirements, we affirm.

Case No. 18-0961:  In the Interest of R.E., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-0961

           Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (9 pages)

            A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: Because Iowa is R.E.’s “home state,” the district court had jurisdiction over termination proceedings.  Also, because of each parent’s individual pending criminal proceedings and lack of participation in visitation or other offered services, R.E. could not be returned at the time of the termination hearing.  Further, termination was in the child’s best interests, no factors precluded termination, the DHS made reasonable efforts towards reunification, and a six-month extension was not warranted for either parent.

Case No. 18-1000:  In the Interest of M.W., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-1000

Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J. (5 pages)

           A father appeals a permanency order transferring guardianship and custody of his child to her maternal aunt.  He contends (1) the child should have been placed with him during the child-in-need-of-assistance proceedings and (2) the district court erred in ordering a guardianship with the aunt.  OPINION HOLDS: We affirm the district court’s refusal to transfer the child to the father’s custody during the proceedings as well as the court’s transfer of guardianship and custody to the maternal aunt following the permanency hearing.

Case No. 18-1017:  In the Interest of L.B., B.B., J.A., and A.E., Minor Children

Filed Aug 01, 2018

View Opinion No. 18-1017

Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (9 pages)

            Alicia and Andrew appeal the termination of their parental rights in their two children.  Alicia also appeals the termination of her parental rights in two additional children.  OPINION HOLDS: The children cannot be returned to Alicia’s care due to her persistent drug use and lack of home or employment.  Her parent-child bond with the children is not so strong as to preclude termination, and an additional six months to work toward reunification is unlikely to resolve Alicia’s parenting issues.  Andrew’s children cannot be returned to him due to his substance abuse and incarceration. 

Case No. 18-1030:  In the Interest of P.W., Minor Child

Filed Aug 01, 2018

View Opinion No. 18-1030

           Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (6 pages)

            A mother and father separately appeal the termination of their parental rights to their son, P.W., born April 2017.  OPINION HOLDS: Because of the parents’ lack of participation in offered services, P.W. could not be returned at the time of the termination hearing.  Also, termination was in the child’s best interests and no factors precluded termination. 

© 2020 Iowa Judicial Branch. All Rights Reserved.