November 2018 Archive | Most Recent Court of Appeals Summaries

            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.

            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.

            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. 

            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.

            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.

            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.

            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.

           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. 

            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.

            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.

            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.

            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.

            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.

            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.

            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. 

            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.

            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.

           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.

            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.

            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. 

            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.

            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.

            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.

            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.

           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. 

            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.

           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.  

            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.

            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.

            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. 

            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.

            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.

            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.

            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. 

            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. 

            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.

            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.

           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. 

            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.

            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. 

            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. 

            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.

            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.

            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. 

            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.

           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.

            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.

            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.  

           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. 

            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.

            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. 

            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.

            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.

            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.

            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.

            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.

            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.

            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.

           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.

           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. 

            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.

            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.

            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. 

            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.

           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.

           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.

            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.

           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.

            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.

            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.

            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.

            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.

            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.

            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.

            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.        

            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.

            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.

            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.

            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.

            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.

            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.

            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.

            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.

           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. 

            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.

            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. 

            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. 

            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.  

            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.

            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.