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2019 Archive | Most Recent Court of Appeals Summaries

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

Opinion Summaries

Case No. 18-0222:  Michelle Lynn Kehoe v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-0222

            Appeal from the Iowa District Court for Buchanan County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (24 pages)

            Michelle Kehoe appeals from the denial of her application for postconviction relief (PCR), following her 2009 convictions for murder in the first degree, attempted murder, and child endangerment resulting in serious injury.  Kehoe argues she received ineffective assistance from trial counsel when counsel failed to 1) move to suppress the incriminating statements she made to police while in the hospital without first receiving Miranda warnings, 2) secure a different, more remote change of venue, and 3) raise the issue of Kehoe’s competency to stand trial.  In her supplemental pro se brief, Kehoe joins some of the arguments made by counsel and also lists a number of errors she believes the PCR court made in its ruling.  OPINION HOLDS: Because Kehoe has not proved any of her claims of ineffective assistance have merit, we affirm the denial of her application for PCR.  As for her pro se claims, she makes no cognizable legal claims and her supplemental pro se brief fails to comport with the appellate rules of procedure; we do not consider any of those issues.

Case No. 18-0328:  State of Iowa v. Joshua Richard Cory

Filed Dec 18, 2019

View Opinion No. 18-0328

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

            Joshua Cory appeals his conviction, following a guilty plea, of possession of methamphetamine with intent to deliver and the sentence imposed.  OPINION HOLDS: We affirm Cory’s conviction and sentence. 

Case No. 18-0536:  State of Iowa v. Chad Leroy Wilson

Filed Dec 18, 2019

View Opinion No. 18-0536

            Appeal from the Iowa District Court for Mills County, James S. Heckerman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  Special concurrence by Tabor, P.J. (11 pages)

           

            Chad Wilson appeals his convictions, following a jury trial, of one count of sexual abuse in the third degree, two counts of lascivious acts with a child, and two counts of indecent contact with a child.  He also challenges the sentences imposed.  He argues (1) the court abused its discretion in denying his motions for a mistrial and new trial upon complaints about the presentation of prior-bad-acts evidence; (2) his trial counsel rendered ineffective assistance in failing to object to a jury instruction; (3) his stipulation to a prior conviction for sentencing-enhancement purposes was not entered knowingly and voluntarily; (4) the provision in the sentencing order requiring him to pay court costs, including attorney fees, fails to conform with the oral pronouncement of sentence or, alternatively, was improperly ordered without a determination of his reasonable ability to pay; and (5) the court’s entry of a lifetime sentencing no-contact order was illegal.  OPINION HOLDS: We affirm Wilson’s guilty verdicts but reverse the district court’s findings in support of the enhancements under sections 901A.2(1) and 902.14 and remand for further proceedings under Iowa Rule of Criminal Procedure 2.19(9).  Having reversed the prior-conviction findings, we likewise vacate the sentences imposed and the court’s written sentencing order.  Having vacated the sentences imposed and the court’s written sentencing order, we find it unnecessary to address Wilson’s restitution challenge.  Because we have vacated the sentences and the sentencing order, the no-contact order included in the sentencing order is likewise vacated.  For protection of the victim, we direct the previously issued temporary no-contact order be reinstated.  After further proceedings on remand and upon resentencing, the court may enter a no-contact order.  SPECIAL CONCURRENCE ASSERTS: I would preserve the claim of ineffective assistance of counsel for failing to object to the jury instruction equating out-of-court admissions by a party opponent with in-court testimony.  As I discussed in two previous dissents, I believe this instruction is flawed and misleads the jurors. 

Case No. 18-0586:  State of Iowa v. Dmarithe Culbreath

Filed Dec 18, 2019

View Opinion No. 18-0586

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (2 pages)           

            Dmarithe Culbreath appeals the sentences imposed following his guilty pleas in two criminal cases and his stipulation to probation violations in two other criminal cases.  OPINION HOLDS: We affirm the sentences imposed but preserve Culbreath’s due process claims for postconviction relief.

Case No. 18-0606:  State of Iowa v. Untril D. Overstreet

Filed Dec 18, 2019

View Opinion No. 18-0606

           Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (5 pages)           

            Untril Overstreet appeals multiple criminal convictions stemming from a traffic stop.  He raises two arguments on appeal: (1) the district court abused its discretion in denying his request to continue trial for the purpose of filing a motion to suppress and (2) his attorneys rendered ineffective assistance in failing to move for suppression of evidence obtained following the stop on the basis that the stop was pretextual and therefore in violation of article I, section 8 of the Iowa Constitution.  OPINION HOLDS: We conclude the district court did not abuse its discretion in denying Overstreet’s motion to continue and Overstreet’s attorneys were not ineffective as alleged.  We affirm Overstreet’s convictions.

Case No. 18-0672:  Terry Daniels v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-0672

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Bower, C.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J.  (15 pages)

            Terry Daniels challenges the denial of his application for postconviction relief, following his 2014 convictions for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver and failure to possess a drug tax stamp.  As he did before the PCR court, Daniels claims he received ineffective assistance from trial counsel when counsel failed to 1) object to incomplete jury instructions on aiding and abetting and 2) challenge the two amendments to the trial information.  Daniels also claims he received ineffective assistance from his direct appeal counsel, maintaining counsel should have challenged the district court’s ruling there was sufficient evidence to include Latasha Daniels as a co-conspirator in the marshalling instruction.  In his pro se brief, Daniels joins the arguments made by counsel and also argues 1) trial counsel was ineffective for allowing him to waive his right to be tried within one year after the one-year deadline had already passed, 2) there was insufficient evidence to support the alternative theories presented to the jury, and 3) the verdict against him was not unanimous.  OPINION HOLDS: Because trial counsel breached an essential duty in failing to object to incomplete jury instructions and Daniels was prejudiced by it, we reverse his conviction for possession of or conspiracy to possess more than fifty grams of cocaine base with the intent to deliver.  We remand for new trial.

Case No. 18-0733:  State of Iowa v. Fontae C. Buelow

Filed Dec 18, 2019

View Opinion No. 18-0733

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (14 pages)

            Fontae Buelow appeals his conviction for second-degree murder.  At trial, Buelow claimed the decedent committed suicide.  He argues the district court erred by excluding evidence concerning the decedent’s mental health.  OPINION HOLDS: The district court erred by improperly excluding evidence supportive of Buelow’s suicide defense.  The error was not harmless.  So we must reverse and remand.

Case No. 18-0899:  State of Iowa v. Cliff Allen Lowe

Filed Dec 18, 2019

View Opinion No. 18-0899

            Appeal from the Iowa District Court for Appanoose County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (3 pages)

            Cliff Lowe appeals his conviction of third-offense possession of a controlled substance, as a habitual offender, claiming his counsel rendered ineffective assistance in failing to move for suppression of evidence obtained following an allegedly illegal pretextual stop and subsequent inventory search of a vehicle in which he was a passenger.  OPINION HOLDS: We find counsel was under no duty to pursue the meritless arguments and Lowe was not prejudiced.  We affirm Lowe’s conviction.

Case No. 18-0949:  State of Iowa v. Gary Dean Terry, Jr.

Filed Dec 18, 2019

View Opinion No. 18-0949

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

            Gary Dean Terry appeals his judgment and sentence for domestic abuse assault with intent to inflict serious injury, arguing that the evidence was insufficient to support the jury’s finding of guilt and his trial attorney was ineffective in failing to move for new trial on the ground the finding was against the weight of the evidence.  OPINION HOLDS: Because a reasonable juror could have found Terry committed an act that was meant to cause pain or injury and he intended to cause a serious bodily injury, and because we are not convinced there is a reasonable probability the district court would have granted a motion for a new trial, we affirm.

Case No. 18-1299:  State of Iowa v. Lynne Ann Gillen

Filed Dec 18, 2019

View Opinion No. 18-1299

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Lynne Gillen appeals the restitution ordered following her guilty plea to operating a motor vehicle while intoxicated, first offense, arguing the district court erred in ordering her to pay restitution at the time of sentencing.  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–63 (Iowa 2019), we vacate the restitution part of the sentencing order and remand the case to the district court.

Case No. 18-1304:  State of Iowa v. Frank John Nucaro

Filed Dec 18, 2019

View Opinion No. 18-1304

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J. (9 pages)

            Frank Nucaro appeals the denial of his application for postconviction relief.  OPINION HOLDS: We find Nucaro has failed to establish the requisite prejudice on his claims.  We affirm.

Case No. 18-1315:  Nationwide Agribusiness Insurance Company, as subrogee of Farmers Cooperative Company v. PGI International; Cox Manufacturing Company d/b/a Dalton AG Products, Inc., and CNH Corp. a/k/a CNH America, LLC, a/s/o DMI, Inc.

Filed Dec 18, 2019

View Opinion No. 18-1315

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (16 pages)

            Nationwide Agribusiness Insurance Company (Nationwide) appeals the district court’s decision denying its motion for a new trial in this action for contribution from PGI International (PGI), Dalton Ag Products, Inc. (Dalton Ag), and CNH Corporation.  OPINION HOLDS: We conclude (1) the district court did not abuse its discretion in determining evidence of an OSHA violation by FCC was relevant to the issue of FCC’s negligence; (2) Nationwide has not preserved error on its claims concerning other similar incidents because it did not make an offer of proof; (3) the district court did not err in granting a directed verdict to Dalton Ag on Nationwide’s design defect claim; (4) the district court did not err in granting a directed verdict to PGI on Nationwide’s claim of breach of an implied warranty of fitness for a particular purpose; and (5) the district court did not err by including the Shaws on the special verdict form.  We affirm the decision of the district court.

Case No. 18-1344:  State of Iowa v. Roy Dean Dewitt

Filed Dec 18, 2019

View Opinion No. 18-1344

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Roy DeWitt appeals his sentence following a guilty plea to eight counts of invasion of privacy.  OPINION HOLDS: Because the plea agreement was conditioned on the district court’s concurrence and the court rejected the plea agreement, DeWitt was entitled to withdraw his plea.  We vacate DeWitt’s sentence and remand for further proceedings consistent with the opinion.   

Case No. 18-1424:  Betty Ann Nall v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1424

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Betty Nall appeals from the district court’s dismissal of her application for postconviction relief following her convictions of theft and forgery.  OPINION HOLDS: Nall’s claims, while raised under an ineffective-assistance-of-counsel rubric, implicate the identical sentencing question decided by the supreme court in State v. Nall, 894 N.W.2d 514 (Iowa 2017).  We affirm the postconviction court’s grant of the State’s motion for summary judgment.

Case No. 18-1471:  State of Iowa v. Michael Lee Syperda

Filed Dec 18, 2019

View Opinion No. 18-1471

            Appeal from the Iowa District Court for Henry County, Mark Kruse, Judge.  JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (29 pages)

            This is a murder case without a body.  Elizabeth Syperda has been missing since July 2000.  She was married to Michael Syperda, but she had recently left him to pursue a relationship with a co-worker.  Elizabeth’s friends and family testified to Michael’s long history of physical abuse and death threats towards Elizabeth.  Michael was charged and convicted of first-degree murder.  He now appeals.  OPINION HOLDS: Because the totality of evidence supports a second-degree murder conviction and the State did not prove beyond a reasonable doubt that Michael acted with the specific intent to kill, we reverse the first-degree murder conviction and remand for entry of judgment and sentence on second-degree murder.  Also, we find that the suppression hearing magistrate had a substantial basis for concluding that probable cause existed to support the search warrant.  Next, we find that no abuse in discretion in the district court’s admission of prior acts evidence.  Also, we may consider Michael’s pro se brief filed before the effective date of a recent statutory amendment prohibiting pro se filings.  Finally, we find Michael cannot show he was prejudiced by counsel allowing a witness to testify by video deposition and that the record is not adequate to address other claims of ineffective assistance of counsel.

Case No. 18-1504:  State of Iowa v. Chad Richard Chapman

Filed Dec 18, 2019

View Opinion No. 18-1504

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (7 pages)

            Chad Chapman appeals following his guilty plea to child endangerment, arguing the district court erred in (1) imposing the special sentence and law-enforcement-initiative surcharge; (2) ordering restitution of court costs “without first determining his reasonable ability to pay such costs”; and (3) determining his offense was sexually motivated, a predicate to placement on the sex offender registry.  OPINION HOLDS: (1) The State concedes error on the first point and agrees we must “vacate those parts of Chapman’s sentence.”  (2) Based on State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate the order for payment of court costs pending completion of a final restitution order.  (3) Because the record contains insufficient evidence to support the district court’s finding that Chapman’s offense was sexually motivated, we vacate the portion of the sentencing order requiring him to register as a sex offender and remand for resentencing. 

Case No. 18-1548:  State of Iowa v. Deirdre Laine Witham

Filed Dec 18, 2019

View Opinion No. 18-1548

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (2 pages)

            Deirdre Laine Witham appeals her sentence following a guilty plea to operating a motor vehicle while intoxicated, third offense.  OPINION HOLDS: We vacate the restitution part of the sentencing order and remand the case to the district court to order restitution in a manner consistent with State v. Albright, 925 N.W.2d 144 (Iowa 2019).

Case No. 18-1563:  State of Iowa v. Jodie Marie Hill

Filed Dec 18, 2019

View Opinion No. 18-1563

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Jodie Hill appeals the imposition of consecutive sentences following her guilty pleas.  She contends the district court violated Iowa Rule of Criminal Procedure 2.23(3)(d) by failing to state on the record the reasons for its decision to impose consecutive sentences.  OPINION HOLDS: The court complied with rule 2.23(3)(d) in checking the box on the written form sentencing order giving its reasons for imposition of consecutive sentences. 

Case No. 18-1702:  In re the Marriage of Christy

Filed Dec 18, 2019

View Opinion No. 18-1702

            Appeal from the Iowa District Court for Warren County, Bradley McCall, Judge.  MODIFICATION REVERSED; WRIT ANNULLED IN PART AND SUSTAINED IN PART.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (13 pages)

            Jamie Plambeck appeals the district court’s order modifying the physical-care award in her divorce decree with Mathew Christy.  Jamie also appeals the district court’s findings that she is in contempt for denying Matthew’s spring break visitation with their daughter P.L.C., for refusing to allow Matthew telephone contact with P.L.C for two weeks, and for failing to communicate regarding the child’s preschool enrollment.  OPINION HOLDS: Because we find Matthew did not prove a substantial and material change in circumstances, we reverse the modification ruling.  Also, because Matthew did establish beyond a reasonable doubt that Jamie violated the decree by refusing him communication with P.L.C. and not providing timely updates on her preschool enrollment, we affirm two of the three contempt findings.   

Case No. 18-1745:  State of Iowa v. Daniel Lynn Smith

Filed Dec 18, 2019

View Opinion No. 18-1745

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

            Daniel Smith appeals his conviction of possession of methamphetamine with intent to deliver, second or subsequent offense, and the sentence imposed.  OPINION HOLDS: We affirm Smith’s conviction and sentence. 

 

Case No. 18-1806:  State of Iowa v. Donnie Ray Thurman

Filed Dec 18, 2019

View Opinion No. 18-1806

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Donnie Ray Thurman appeals his sentence following a guilty plea to driving while barred as a habitual offender.  OPINION HOLDS: We discern no abuse of discretion in the district court’s sentencing decision.

Case No. 18-1813:  Dwight Murray v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1813

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            Dwight Murray appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: Murray identified no new ground of law to excuse his filing beyond the three-year statute of limitations for postconviction-relief actions.

Case No. 18-1942:  State of IOwa v. Alex Gregory Welch

Filed Dec 18, 2019

View Opinion No. 18-1942

            Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (3 pages)

            Alex Welch appeals the sentences imposed upon two felony drug convictions.  OPINION HOLDS: We affirm the sentences imposed.

Case No. 18-1945:  Eduardo Artemio Rodriguez Lopez v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-1945

            Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            Eduardo Rodriguez Lopez appeals from the order denying his application for postconviction relief (PCR).  OPINION HOLDS: Rodriguez Lopez’s claim of ineffective assistance of PCR counsel is too general to address on appeal.  He claims his trial counsel was ineffective by admitting he was ready for trial and misusing time and resources fail because he is unable to show prejudice.  He waived a third claim of ineffective assistance of trial counsel, and his claim that the trial court erred in overruling his motion for judgment of acquittal is procedurally barred. 

Case No. 18-1997:  State of Iowa v. Eric Chandler Parmenter

Filed Dec 18, 2019

View Opinion No. 18-1997

            Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Potterfield, J.  (18 pages)

            Defendant Eric Parmenter appeals from the judgment and sentence imposed following his conviction on two counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).   On appeal, Parmenter argues (1) the State’s abandonment of the charged timeframe for both counts deprived him of his due process rights; (2) the State committed prosecutorial misconduct by telling the jury to ignore the dates of the alleged incidents specified in the jury instructions; (3) Parmenter’s right to a fair trial was violated when the district court admitted the testimony of a non-sequestered rebuttal witness; and (4) the verdict was contrary to the weight of the evidence.  OPINION HOLDS: Parmenter’s prosecutorial misconduct, fair trial, and weight of the evidence claims were preserved; his due process claim related to the prosecutor’s statement during closing arguments was not.  Parmenter has not shown the prosecutor committed misconduct by arguing the dates listed in the jury instructions were irrelevant during rebuttal argument.  We cannot say the district court’s admission of the rebuttal witness’s testimony was clearly untenable.  Because the district court failed to exercise its discretion when weighing the evidence, we reverse and remand this case to the district court for proceedings consistent with this opinion.

Case No. 18-2013:  In re the Marriage of Brockman

Filed Dec 18, 2019

View Opinion No. 18-2013

            Appeal from the Iowa District Court for Page County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Jessalyn Brockman appeals the child custody provisions of the decree dissolving her marriage to Matthew Brockman.  OPINION HOLDS: Like the district court, we find that awarding Matthew physical care is in the child’s best interests.  We affirm the custody provisions of the dissolution decree and the district court’s decision to deny an award of trial attorney fees.  We decline to award Jessalyn her attorney fees on appeal. 

Case No. 18-2083:  State of Iowa v. Wildor Juste

Filed Dec 18, 2019

View Opinion No. 18-2083

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (22 pages)

            Wildor Juste appeals his conviction of sexual abuse in the second degree.  Juste argues the district court erred in (1) admitting testimony alleged to have improperly vouched for the complaining witness, (2) admitting hearsay statements alleged to bolster out-of-court statements made by the complaining witness, (3) submitting a jury instruction naming a date range in which the alleged abuse took place, (4) denying access to department of human services records relied upon by testifying witnesses, and (5) admitting employment records and related testimony over hearsay objections.  OPINION HOLDS: We affirm Juste’s conviction. 

Case No. 18-2085:  Benjamin Elliott Lane v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-2085

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (14 pages)

            Lane is serving two indeterminate, consecutive twenty-five year prison terms on his convictions for sexual abuse in the second degree and burglary in the first degree.  Lane contends that the guarantee of assistance of counsel should be set to a higher standard and his trial counsel was remiss in numerous ways.  He also claims his sentence is cruel-and-unusual punishment.  OPINION HOLDS: Our court is without authority to reach the merits of Lane’s novel legal approach to set a higher standard for assistance of counsel.  In addition, we find that counsel did not breach his duty with respect to his assistance in legal counseling.  Finally, we do not find Lane’s argument satisfies the threshold test to show that his sentence constituted cruel-and-unusual punishment.

Case No. 18-2098:  State of Iowa v. Jeremy Rutter

Filed Dec 18, 2019

View Opinion No. 18-2098

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman and David P. Odekirk, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J. (9 pages)

            Jeremy Rutter appeals his conviction and sentence for two counts of possession with intent to deliver and one drug tax stamp violation.  Rutter argues a warrantless search of the master bedroom of his home was unconstitutional under the federal and state constitutions.  OPINION HOLDS: We conclude the warrantless search of the bedroom was based on voluntary consent and the district court properly denied Rutter’s motion to suppress. 

Case No. 18-2155:  Karen Lee Doren v. State of Iowa

Filed Dec 18, 2019

View Opinion No. 18-2155

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (3 pages)

            Karen Doren appeals from the summary dismissal of her application for postconviction relief (PCR).  OPINION HOLDS: The PCR court correctly dismissed Doren’s PCR application because she filed beyond the statute of limitations and no exception applied.

Case No. 18-2202:  State of Iowa v. Troy J. Ford

Filed Dec 18, 2019

View Opinion No. 18-2202

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., Tabor, J., and Vogel, S.J.  Opinion by Tabor, J.  Dissent by Vogel, S.J.  (14 pages)

            Troy Ford appeals his conviction for third-offense possession of marijuana asserting the district court erred in denying his motion to suppress.  A police officer mistakenly arrested Ford based on an outstanding warrant for a different individual with the same name.  Ford contends the arrest was invalid so the search incident to arrest revealing the marijuana was unconstitutional and the district court should have suppressed it.  OPINION HOLDS: Because the officer did not act reasonably in searching Ford before verifying his identity as the person with the warrant, we reverse the suppression ruling and remand for further proceedings consistent with this opinion.  DISSENT ASSERTS: Because I believe the district court properly denied Ford’s motion to suppress based on the arresting officer reasonably matching Ford with the outstanding warrants, I would affirm his conviction and sentence.

Case No. 18-2215:  In the Matter of N.P., Alleged to Be Seriously Mentally Impaired

Filed Dec 18, 2019

View Opinion No. 18-2215

            Appeal from the Iowa District Court for Woodbury County, Jeffery L. Poulson and Zachary Hindman, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            N.P. appeals the district court’s findings of serious mental impairment, alleging her procedural due process rights were violated.  She raises two procedural due process issues: (1) an ex parte communication denied her a fair and impartial hearing and (2) the applicant’s attorney was prohibited from being present and participating at the hearings.  OPINION HOLDS: N.P.’s due process rights were not violated.  So reversal is not warranted.

Case No. 18-2249:  State of Iowa v. Jhamond McMullen

Filed Dec 18, 2019

View Opinion No. 18-2249

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell and David May, Judges.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  May, J., takes no part.  Opinion by Doyle, P.J. (12 pages)

            Jhamond McMullen appeals his convictions, sentences, and judgment following a bench trial and verdict finding him guilty of several drug-related offenses.  OPINION HOLDS:  Upon our review, we vacate and remand the district court’s sentencing order for changes consistent with the opinion, and we affirm in all other respects.

Case No. 19-0067:  In re the Marriage of Shirbroun

Filed Dec 18, 2019

View Opinion No. 19-0067

            Appeal from the Iowa District Court for Carroll County, Gary McMinimee, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            Joshua Shirbroun appeals the denial of his motion to set aside a default decree.  OPINION HOLDS: None of the factors weigh in favor of setting aside the default judgment.  Consequently, we find no abuse of discretion in the district court’s refusal to do so and affirm.

 

Case No. 19-0136:  In re the Marriage of Carter

Filed Dec 18, 2019

View Opinion No. 19-0136

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Jeffrey William Carter appeals the order awarding Lilliana Castano Carter attorney fees and costs incurred during the parties’ divorce proceedings.  OPINION HOLDS: The district court properly exercised its discretion in determining the attorney fee award, and we decline to disturb it on appeal.  We remand to the district court to determine a reasonable award of Lilliana’s appellate attorney fees.

Case No. 19-0250:  State of Iowa v. Alexander William Bertrand

Filed Dec 18, 2019

View Opinion No. 19-0250

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt and Carol L. Coppola, District Associate Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (7 pages)

            Alexander Bertrand appeals his conviction for operating while intoxicated (OWI), first offense, challenging the denial of his motion to suppress.  He maintains his constitutional right to be free from unreasonable searches and seizures was violated because there was no probable cause or reasonable suspicion for the traffic stop.  OPINION HOLDS: On our de novo review of the facts here, we find there was reasonable suspicion justifying the traffic stop.  The district associate court properly overruled Bertrand’s motion to suppress.  We affirm Bertrand’s conviction for first-offense OWI.

Case No. 19-0291:  In the Interest of S.S., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-0291

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

            J.S. appeals the termination of his parental rights to his minor child, S.S.  He argues he did not abandon S.S. under Iowa Code section 600A.8(3)(b) (2017) and termination is not in S.S.’s best interests.  OPINION HOLDS: Because the mother has shown by clear and convincing evidence the father abandoned the child and termination is in the child’s best interests we affirm the district court’s order terminating the father’s parental rights. 

Case No. 19-0560:  In the Matter of K.G., Alleged to be Seriously Mentally Impaired

Filed Dec 18, 2019

View Opinion No. 19-0560

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (10 pages)

            K.G. challenges the civil commitment order issues pursuant to Iowa Code chapter 229 (2018).  On appeal, K.G. argues (1) the State failed to meet its burden to prove by clear and convincing evidence that she was a danger to herself or others due to her mental illness; (2) the district court erred in not appropriately conducting a de novo hearing under Iowa Code section 229.21(3); and (3) the district court erred by taking judicial notice of two criminal complaints involving K.G. in violation of K.G.’s rights under the Fifth Amendment to the United States Constitution.  OPINION HOLDS: Sufficient evidence supports the district court’s determination that K.G. was likely to harm herself or others if released.  The district court did not err by taking judicial notice of the criminal complaints against K.G. 

Case No. 19-0606:  In re the Marriage of Tedrow

Filed Dec 18, 2019

View Opinion No. 19-0606

            Appeal from the Iowa District Court for Van Buren County, Shawn Showers, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Eric Tedrow appeals from the decree dissolving his marriage to Kelly Tedrow.  He argues the district court erred in granting Kelly physical care of their child.  OPINION HOLDS: Following our de novo review, we conclude physical care was properly awarded to Kelly.  So we affirm the district court.  But we decline to award Kelly appellate attorney fees.

Case No. 19-0623:  In re the Marriage of Minjares Simental

Filed Dec 18, 2019

View Opinion No. 19-0623

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Rogelio Minjares Simental appeals the denial of his petition to modify the child custody provisions of the decree dissolving his marriage to Maria Socorro Minjares.  OPINION HOLDS: Because there has not been a substantial change in circumstances that was not within the contemplation of the court when it entered the dissolution decree, we affirm the denial of the petition to modify.  We award Maria her appellate attorney fees.

Case No. 19-0736:  State of Iowa v. Antoine Mario Grisson, Jr.

Filed Dec 18, 2019

View Opinion No. 19-0736

            Appeal from the Iowa District Court for Dubuque County, Robert J. Richter, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            Antoine Grisson Jr. appeals his sentence for burglary in the third degree, arguing the district court based its sentence on improper factors and insufficient justifications.  OPINION HOLDS: The district court considered the parties’ sentencing recommendations—not rejected plea offers—as well as the facts of the case and the statutory sentencing factors when imposing the sentence.  Because the judge did not consider improper factors or abuse his discretion, we affirm Grisson’s sentence.

Case No. 19-0830:  Stacey L. Sherburne d/b/a G&S Lambs v. Ashton State Bank, a Nebraska Corporation

Filed Dec 18, 2019

View Opinion No. 19-0830

            Appeal from the Iowa District Court for Butler County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Stacey Sherburne appeals the district court’s dismissal of his action against Ashton State Bank for lack of jurisdiction.  OPINION HOLDS: A finding of sufficient minimum contacts was the only basis for establishing jurisdiction over Ashton State Bank.  Because those contacts were absent, we discern no error in the district court’s dismissal of Sherburne’s lawsuit.

Case No. 19-0991:  Kristin M. Potter v. Eric J. Smith

Filed Dec 18, 2019

View Opinion No. 19-0991

            Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            Eric Smith appeals from the district court order, which modified Eric’s visitation and denied Eric’s request for an award of physical care after the custodial parent moved to Arizona with the parties’ nine-year-old daughter.  OPINION HOLDS: On review of the entire record, we affirm the district court’s ruling.

Case No. 19-1289:  In the Interest of M.M., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1289

            Appeal from the Iowa District Court for Washington County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, asserting she has been denied due process, there has been no showing that termination of parental rights is in the child’s best interests, and she should have been granted an additional six months to seek reunification.  OPINION HOLDS: On our de novo review, we affirm. 

Case No. 19-1316:  In the Interest of B.B., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1316

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to one of her children, born in 2018.  She contends the State failed to prove the grounds for termination cited by the district court, termination was not in the child’s best interests, and the court should have declined to terminate her parental rights based on the parent-child bond.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 19-1384:  In the Interest of M.T., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1384

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A father appeals the juvenile court order waiving the requirement that the Iowa Department of Human Services make reasonable efforts to return his child to his care.  OPINION HOLDS:  The father could not care for the child after three years.  Extending the time to offer additional services will not correct the conditions that led to the child’s removal.  Because aggravated circumstances exist to warrant waiving the reasonable-efforts requirement, we affirm.

Case No. 19-1396:  In the Interest of H.B., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1396

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            Ravin, age twenty-two, appeals an order terminating her parental rights to H.B., her now three-year-old son.  She contends the State did not prove the statutory basis for termination and termination is not in H.B.’s best interests.  OPINION HOLDS: H.B.’s repeated removals are a heartbreaking reminder Ravin cannot overcome her addiction at the present time to provide her son with a safe home.  Termination of Ravin’s parental rights was proper under sections 232.116(1)(h) and 232.116(2) (2019).  We affirm. 

Case No. 19-1432:  In the Interest of J.M., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1432

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother appeals the termination of her parental rights pursuant to Iowa Code section 232.116(1)(d), (h), and (i) (2019).  OPINION HOLDS: Although the mother and child share a bond, it is not in the child’s best interests to continue to wait for permanency. 

 

Case No. 19-1539:  In the Interest of A.H., T.S., and T.S., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1539

            Appeal from the Iowa District Court for Mitchell County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            A mother appeals the termination of her parental rights to three minor children, arguing that an exception under Iowa Code section 232.116(3)(c) (2019) applies to prevent termination based on the closeness of the parent-child relationship.  OPINION HOLDS: The mother has failed to prove by clear and convincing evidence that the exception to termination applies.  We affirm.

Case No. 19-1679:  In the Interest of J.C., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1679

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: The State proved the grounds for termination under Iowa Code section 232.116(1)(h) (2019) where clear and convincing evidence shows the child could not be returned to the mother’s care at the time of the termination hearing because of her ongoing substance use.  Because the mother’s substance use prevents her from providing the child a safe and permanent home, termination is in the child’s best interests.

Case No. 19-1711:  In the Interest of G.O., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1711

            Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  Dissent by Vaitheswaran, P.J.  (8 pages)

            The father of G.O. appeals the termination of his parental rights.  OPINION HOLDS: The father was notified in person and in writing of the date and time of the hearing and appeared with counsel, and the juvenile court did not abuse its discretion in denying his motion to continue the hearing.  The State proved the statutory grounds for termination by clear and convincing evidence.  We agree with the juvenile court that termination of the father’s parental rights is in G.O.’s best interests, and we find no impediments to termination.  DISSENT ASSERTS: I respectfully dissent.  I am not convinced the father’s whereabouts were unknown or could not be ascertained by a reasonably diligent search.  And the father’s awareness of the hearing date did not obviate the need to serve him with notice of the termination proceeding at least seven days before the termination hearing.  I would reverse and remand.

Case No. 19-1731:  In the Interest of L.E., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1731

            Appeal from the Iowa District Court for Winneshiek County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because there is clear and convincing evidence to support termination, termination is in the child’s best interests, and no permissive factor persuades us termination should not occur, we affirm.

Case No. 19-1736:  In the Interest of D.M., A.M., and A.L., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1736

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            The mother appeals the dispositional order continuing the removal of her three children.  OPINION HOLDS: We agree with the juvenile court and affirm without further opinion.

Case No. 19-1749:  In the Interest of D.B., A.B., and B.B., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1749

            Appeal from the Iowa District Court for Jackson County, Mark R. Fowler, Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Vogel, S.J.  Opinion by Schumacher, J.  (8 pages)

            A mother appeals the termination of her parental rights to her three daughters, D.B., born in 2010, and B.B. and A.B., both born in 2013.  OPINION HOLDS: The district court found, and we concur, that the grounds for termination were proven.  We further find the record does not support that an extension of time for reunification efforts is warranted and termination is in the best interest of the children.  We therefore affirm.

Case No. 19-1773:  In the Interest of S.C., J.C., A.C., and J.C., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1773

            Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to four children, contending that the record lacks clear and convincing evidence to support the grounds for termination, termination was not in the children’s best interests, and the district court should have afforded her six additional months to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-1796:  In the Interest of H.B. and Z.R., Minor Children

Filed Dec 18, 2019

View Opinion No. 19-1796

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (10 pages)

            A mother appeals the termination of her parental rights to two children.  She contends the court should have granted her request for a continuance, the State did not prove the statutory grounds, termination would be detrimental due to the parent-child bond, and the court should have given her more time to work toward reunification.  OPINION HOLDS: On our independent review, we find no basis for reversal.  The district court did not abuse its discretion in denying the mother a continuance.  The State proved the statutory grounds for termination as to each child, and the mother did not show termination would be detrimental.  Finally, given the mother’s long-standing unresolved substance abuse and instability, the record reveals no reason to conclude the problems will be resolved in six months.  We affirm. 

Case No. 19-1824:  In the Interest of P.D., Minor Child

Filed Dec 18, 2019

View Opinion No. 19-1824

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (6 pages)

            A mother appeals the termination of her parental rights to her minor child, born in 2015.  She challenges the sufficiency of the evidence supporting the statutory grounds for termination cited by the juvenile court, argues termination is not in the child’s best interests due to the parent child bond, requests the statutory exception to termination contained in Iowa Code section 232.116(3)(a) be applied and a guardianship be established in the maternal grandmother in lieu of termination, and claims the State failed to make reasonable efforts at reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 19-0454:  State of Iowa v. Jacob A. Boothby

Filed Dec 14, 2019

View Opinion No. 19-0454

            Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J. (3 pages)

            Jacob Boothby appeals from his convictions of assault with a dangerous weapon and third-degree criminal mischief.  He raises two ineffective-assistance claims.  OPINION HOLDS: We find the record insufficient to address either claim.  So we preserve the claims and affirm Boothby’s convictions.

Case No. 18-0209:  State of Iowa v. James Russell Walden Jr.

Filed Nov 27, 2019

View Opinion No. 18-0209

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (21 pages)

            James Walden Jr. appeals from his conviction for first-degree murder challenging an evidentiary ruling, a jury instruction, the sufficiency of the evidence, the weight of the evidence, and ineffectiveness of trial counsel.  OPINION HOLDS: We find the district court did not err in crafting an appropriate remedy when excluded evidence of sexual assault entered the record.  The court’s instruction was supported by the evidence, and the district court did not err in delivering it.  There was sufficient evidence to support the verdict, and it was not against the weight of the evidence.  Finally, we preserve the ineffective-assistance-of-counsel claim for a possible postconviction-relief proceeding.  We affirm. 

Case No. 18-0285:  Donovan F. Lincoln v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-0285

            Appeal from the Iowa District Court for Louisa County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Potterfield, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            Applicant appeals the district court’s denial of his application for postconviction relief (PCR).  In this appeal, he claims his PCR counsel was ineffective for failing to raise the issue that his criminal trial attorney was ineffective for failing to discover and object to the district court relying in part upon his previous conviction for theft in the fifth degree when unrepresented by counsel for denying his request for a deferred judgment on a subsequent charge of theft in the second degree.  OPINION HOLDS: Because this particular issue was not raised before the district court in this PCR proceeding and not ruled upon, we find it is not properly before us in this appeal, and it must be raised in a newly filed PCR application.

Case No. 18-0323:  State of Iowa v. Marlon Derell Harris, Jr.

Filed Nov 27, 2019

View Opinion No. 18-0323

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Marlon Harris Jr. appeals his convictions of first-degree robbery and second-degree theft, challenging the sufficiency of the evidence supporting the charges.  OPINION HOLDS: We affirm Harris’ judgment and sentence for first-degree robbery and second-degree theft.

Case No. 18-0789:  State of Iowa v. Randy Wayne Camden

Filed Nov 27, 2019

View Opinion No. 18-0789

            Appeal from the Iowa District Court for Marion County, Bradley M. McCall, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (3 pages)

            Randy Camden appeals following his guilty plea to four counts of lascivious acts with a child, contending the district court “considered an improper factor” when it relied on the sentencing recommendation in the presentence investigation report and abused its discretion “by refusing to consider placing [him] on probation based on a personal fixed policy.”  OPINION HOLDS: We affirm Camden’s sentence for four counts of lascivious acts with a child.

Case No. 18-0842:  North Skunk River Greenbelt Association, Inc. v. Allen

Filed Nov 27, 2019

View Opinion No. 18-0842

            Appeal from the Iowa District Court for Washington County, Randy S. DeGeest, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Bower, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (20 pages)

            The defendants appeal a bench ruling denying their claims and concluding they were not entitled to indemnification.  OPINION HOLDS: We conclude Scott Allen and Doris Park were not validly removed as directors of the nonprofit corporation and are therefore entitled to mandatory indemnification for reasonable expenses incurred while defending the lawsuit, and we remand to the district court for a calculation of those reasonable expenses.  We further conclude that the defendants failed to prove their conversion claims, they were not entitled to judicial dissolution of the nonprofit corporation, and they failed to establish an abuse of discretion with regard to the district court’s denial of sanctions.

Case No. 18-0846:  State of Iowa v. Larry Jerome Fairfax

Filed Nov 27, 2019

View Opinion No. 18-0846

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (3 pages)

            Larry Fairfax appeals his conviction for absence from custody, claiming his counsel provided ineffective assistance.  OPINION HOLDS: The record on appeal is not sufficient to resolve Fairfax’s ineffective-assistance-of-counsel claim.  We affirm.

Case No. 18-0951:  State of Iowa v. Dustin Eugene Pherigo

Filed Nov 27, 2019

View Opinion No. 18-0951

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            Defendant appeals from a district court order revoking his probation and imposing an indeterminate term of incarceration not to exceed two years.  OPINION HOLDS: We disagree with defendant’s allegations that the court made procedural errors and abused its discretion. 

Case No. 18-0957:  State of Iowa v. Jeremy Elton Batiste

Filed Nov 27, 2019

View Opinion No. 18-0957

            Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Jeremy Batiste appeals the judgment and sentence entered after he pleaded guilty to driving while barred as a habitual offender.  OPINION HOLDS: We find the record and Batitse’s argument too undeveloped to resolve his ineffective-assistance-of-counsel claims.  So we preserve them for postconviction relief and affirm. 

Case No. 18-1100:  Neil Conner, LinDa Stougard, and Dale Conner v. Eva Decker

Filed Nov 27, 2019

View Opinion No. 18-1100

            Appeal from the Iowa District Court for Lucas County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Tabor, J.  (14 pages)

            Three siblings appeal the district court’s order granting judgment notwithstanding the verdict, vacating an award of punitive damages, and granting a conditional new trial following the jury verdicts on their claims of tortious interference with inheritance, unjust enrichment, and mistake.  OPINION HOLDS: The defendant cannot have acted in good faith in regard to the joint accounts she held with the decedent (although the decedent acted freely, intelligently, and voluntarily) and simultaneously have interfered with the siblings’ inheritance of the funds in those accounts by committing acts of fraud or by exerting undue influence on the decedent.  In addition, even viewing the evidence in the light most favorable to the siblings, this record lacks substantial proof the defendant engaged in fraud or undue influence.  Next, because the siblings did not prove their claim of intentional interference, we affirm the district court’s decision to vacate the award of punitive damages.  Finally, the jury’s award of compensatory damages was not supported by substantial evidence.  We find no abuse of discretion in the court’s order for conditional new trial or remittitur.

Case No. 18-1211:  State of Iowa v. Brian Christner

Filed Nov 27, 2019

View Opinion No. 18-1211

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J. (3 pages)

              Brian Christner appeals his conviction of voluntary absence from custody and the sentence imposed.  OPINION HOLDS: We affirm Christner’s conviction and sentence. 

Case No. 18-1362:  State of Iowa v. Jairo Rodriguez

Filed Nov 27, 2019

View Opinion No. 18-1362

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Mullins and Greer, JJ.  Opinion by Bower, C.J.  (2 pages) 

            Jairo Rodriguez appeals from the district court’s judgment denying his motion to suppress evidence stemming from a traffic stop.  OPINION HOLDS: Because the same legal reasoning and opinion in a companion case, State v. Salcedo, ___ N.W.2d ___, No. 18-1353, 2019 WL 5849005 (Iowa 2019), recently filed by our supreme court, fully apply here, we reverse and remand.

Case No. 18-1397:  Kara Ganka, As Administrator of the Estate of Bronson Ganka, Kara Ganka, Individually and as Parent and Next Friend of D.G., M.G., and A.G., Minors v. Jeffrey Clark

Filed Nov 27, 2019

View Opinion No. 18-1397

            Appeal from the Iowa District Court for Johnson County, Andrew Chappell, Judge.  AFFIRMED ON APPEAL, CROSS-APPEAL DISMISSED AS MOOT.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (7 pages)

            Bronson Ganka died as a result of a workplace injury.  His widow, Kara Ganka, brought a gross negligence claim against his co-employee, Jeff Clark.  The jury found in favor of Kara.  Jeff moved for judgment notwithstanding the verdict.  The district court granted Jeff’s motion.  Kara appeals.  OPINION HOLDS: We find there was insufficient evidence to prove gross negligence.  So we affirm the grant of judgment notwithstanding the verdict. 

Case No. 18-1453:  Brenda J. Alcala v. Marriott International, Inc. and Courtyard Management Corporation d/b/a Quad Cities Courtyard Management Corporation

Filed Nov 27, 2019

View Opinion No. 18-1453

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (19 pages)

            A hotel appeals from a jury verdict giving the plaintiff a substantial damages award following a slip-and-fall on ice outside the hotel.  The hotel contends the verdict is excessive as a result of the plaintiff’s evidence inflaming the passions and prejudices of the jury.  The defendant hotel also contends the district court abused its discretion in various evidentiary objections.  OPINION HOLDS: The hotel has not shown the verdict is excessive as a result of the plaintiff inflaming the passions and prejudices of the jury.  The court did not abuse its discretion in permitting the objected-to evidence; other evidence improperly admitted was harmless.  We affirm.

Case No. 18-1637:  Joseph Andrew Leeper v. Pioneer Hi-Bred International, Inc., a/k/a DuPont Pioneer

Filed Nov 27, 2019

View Opinion No. 18-1637

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages)

            The claimant appeals from the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s denial of permanent disability benefits.  OPINION HOLDS: Having considered all arguments set forth in this appeal, whether or not specifically mentioned in this opinion, we affirm the district court’s ruling on judicial review affirming the agency’s denial of permanent disability benefits under Iowa Court Rule 21.26.

Case No. 18-1658:  In the Matter of the Estate of Charles H. Kline, Deceased.

Filed Nov 27, 2019

View Opinion No. 18-1658

            Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  Special Concurrence by Potterfield, P.J.  (21 pages)

            After a bench trial, the probate court concluded that Tom Kline had failed to establish that his sister, Mary Culp, unduly influenced their father or intentionally interfered with Tom’s inheritance when their father made her a joint owner of all of his bank accounts and certificates of deposit, thereby effectively disinheriting Tom.  OPINION HOLDS: The probate court failed to consider the proper burden of proof and factors when determining whether Mary stood in a confidential relationship to her father.  We conclude a confidential relationship existed between Mary and her father and the burden of proof should have shifted to Mary to rebut the presumption of undue influence by clear, convincing, and satisfactory evidence that she acted in good faith throughout the transaction and her father made the transfer knowingly and intelligently.  We also conclude that Mary failed to rebut the presumption of undue influence and the account assets should be distributed according to the father’s will.  Finally, we conclude that Tom proved Mary intentionally interfered with Tom’s inheritance and he is entitled to damages.  The case is remanded to the probate court for consideration of damages.  SPECIAL CONCURRENCE ASSERTS: I agree with the majority’s conclusion on the substantive issues presented here, but I write separately to quarrel with the formulation of the standard of review on the claim of intentional interference with an inheritance. I would not like to give our district court judges or lawyers the suggestion that a motion to bifurcate was necessary or useful in these circumstances.

Case No. 18-1672:  Panther Deng v. Curtis White, Family Plan 2000, and JACD-S Inc.

Filed Nov 27, 2019

View Opinion No. 18-1672

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

            Panther Deng appeals following the entry of a judgment by the district court in favor of the defendants following a trial to the bench.  OPINION HOLDS: We have jurisdiction to consider Deng’s appeal.  However, Deng did not establish by a preponderance of the evidence she suffered any actual damages as a result of the Defendants’ actions within the meaning of Iowa Code chapter 714H (2016).  On our de novo review, we agree with entering judgment in favor of the Defendants.  Accordingly, we affirm the ruling of the district court.

Case No. 18-1715:  Jenny Fishel v. Michael Redenbaugh

Filed Nov 27, 2019

View Opinion No. 18-1715

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (8 pages)

            Jenny Fishel appeals the district court’s refusal to award financial support as part of a civil domestic-abuse protective order.  OPINION HOLDS: Under Iowa Code section 236.5(1)(b)(6) (2018), the district court may require the defendant to pay “a sum of money for the separate support and maintenance of the plaintiff.”  The court may order this support even if the plaintiff is not otherwise entitled to support under another statutory provision, such as section 598.21A.

Case No. 18-1735:  State of Iowa v. Vickie Jo Williams

Filed Nov 27, 2019

View Opinion No. 18-1735

            Appeal from the Iowa District Court for Guthrie County, Terry R. Rickers, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Vickie Williams appeals the district court’s denial of her motion to suppress, arguing that her rights were violated under the Fourth Amendment to the United States Constitution and article 1, section 8 of the Iowa Constitution.  OPINION HOLDS: We conclude there was no seizure, reasonable suspicion existed regardless, and there was no custodial interrogation.  We affirm the district court’s denial of Williams’ suppression motion and her judgment and sentence.

Case No. 18-1868:  In the Matter of E.R., Alleged to Be Seriously Mentally Impaired

Filed Nov 27, 2019

View Opinion No. 18-1868

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (9 pages)

            E.R. appeals the district court decision finding she was seriously mentally impaired.  OPINION HOLDS:  E.R. has not shown she received ineffective assistance due to counsel’s failure to challenge the qualifications of a person signing a physician’s report.  We find there is sufficient evidence to show E.R. was not capable of making responsible decisions about her treatment.  We affirm the decision of the district court.

Case No. 18-1972:  Casey Dixon v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-1972

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages) 

            Casey Dixon appeals the denial of his postconviction-relief application.  OPINION HOLDS: The due process clauses of the federal and state constitutions do not require retrospective application of the ameliorative sentencing provision set forth in Iowa Code section 902.12(3) (Supp. 2016) to those persons sentenced before July 1, 2016.

Case No. 18-2038:  Nickolas L. Tank v. Holly Sexton n/k/a Holly Teepe

Filed Nov 27, 2019

View Opinion No. 18-2038

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            Holly Sexton, now known as Holly Teepe, appeals from the decree that decided physical care of D.T., her child with Nickolas Tank.  OPINION HOLDS: On our de novo review of the record, we agree with the district court’s decision to place physical care with Nickolas, and we affirm without further opinion.

Case No. 18-2059:  Thomas Kohn v. Joseph Muhr

Filed Nov 27, 2019

View Opinion No. 18-2059

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Thomas Kohn appeals the district court’s decision declaring him a debtor for purposes of a harvester lien claim.  OPINION HOLDS: We find Kohn was a debtor within the meaning of Iowa Code section 571.1B (2017) and affirm.

Case No. 18-2060:  Anthony Martin Collins, Jr. v. Veronica Marie Natera, n/k/a Veronica Marie Landals

Filed Nov 27, 2019

View Opinion No. 18-2060

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., Potterfield, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (14 pages)

            Anthony Collins Jr. (Tony) appeals the district court’s denial of his petition to modify the parties’ paternity decree to order physical care of the parties’ child with him rather than the child’s mother, Veronica Landals.  OPINION HOLDS: Upon our review, we affirm the order entered by the court, but we conclude equity requires that Veronica pay for the child’s travel costs necessary to facilitate visitation with Tony, and we modify the order in that regard.

Case No. 18-2082:  State of Iowa v. Joseph Ray William Frederick

Filed Nov 27, 2019

View Opinion No. 18-2082

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J. (9 pages)

            Joseph Frederick appeals multiple criminal convictions following a jury trial.  He argues the district court abused its discretion in allowing the presentation of prior-bad-acts evidence.  OPINION HOLDS: Finding no abuse of discretion, we affirm Frederick’s criminal convictions. 

Case No. 18-2118:  In re the Detention of Dewayne Bethke

Filed Nov 27, 2019

View Opinion No. 18-2118

            Appeal from the Iowa District Court for Mitchell County, Christopher Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Dewayne Bethke appeals from the district court ruling granting the State’s petition to civilly commit him as a sexually violent predator.  Bethke challenges the sufficiency of the evidence supporting the district court’s findings he suffers from a mental abnormality, as defined by Iowa Code section 229A.2(5) (2017), which makes it more likely than not he will commit another sexually violent act.  OPINION HOLDS: Because substantial evidence supports the district court’s determination Bethke is a sexually violent predator, we affirm the district court ruling granting the State’s petition to have him civilly committed.

Case No. 18-2120:  State of Iowa v. Christopher Michael Pate

Filed Nov 27, 2019

View Opinion No. 18-2120

            Appeal from the Iowa District Court for Lucas County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran, and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Christopher Pate appeals the district court’s denial of his motion for reconsideration of room-and-board assessment, arguing that he does not have the reasonable ability to pay the assessed restitution of $26,861.26.  OPINION HOLDS: The district court did not abuse its discretion in holding that Pate does have the reasonable ability to pay.

Case No. 18-2140:  In re the Marriage of Wilson

Filed Nov 27, 2019

View Opinion No. 18-2140

            Appeal from the Iowa District Court for Story County, Timothy J. Finn and Steven J. Oeth, Judges.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A former wife appeals the dissolution decree refusing to divide a substantial inheritance of the former husband and challenges the spousal support award.  OPINION HOLDS: The district court properly refused to divide the former husband’s inheritance, and achieved equity in the spousal support award.  We affirm all aspects of the decree except for a minor calculation error pointed out by the former husband.  We modify the decree only to correct this aspect of the equalization payment. 

Case No. 18-2151:  State of Iowa v. Robert Evan Bruce

Filed Nov 27, 2019

View Opinion No. 18-2151

            Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff and Kathleen A. Kilnoski, Judges.  AFFIRMED.  Considered by Mullins, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            Robert Bruce appeals from a district court ruling excluding evidence that a passenger was not wearing a seatbelt when he drove his truck into a ditch while intoxicated, resulting in her serious injury.  He contends, under the “but-for” test, the jury should have heard the evidence and been able to determine whether the passenger’s conduct was a “but-for” cause of her injuries.  OPINION HOLDS: The district court did not abuse its discretion in ruling such evidence was not relevant.  Accordingly, we affirm the ruling and conviction. 

Case No. 18-2181:  Dorothy Hollinger v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 18-2181

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (9 pages)

            The State of Iowa appeals the order entering judgment for Dorothy Hollinger on her claim of employment discrimination based on disability.  OPINION HOLDS: Our decision in a prior appeal of this case determined that squatting and kneeling are major life activities under the Iowa Civil Rights Act.  Because that decision is the law of the case, the district court relied on it in finding Hollinger is substantially limited in those major life activities and thus is a person with a disability under the statute. 

Case No. 19-0031:  Slashfrog, LLC d/b/a All Day Homes v. Ethan Quick and Jordan Quick

Filed Nov 27, 2019

View Opinion No. 19-0031

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (13 pages)

            Slashfrog, LLC appeals and Ethan and Jordan Quick cross-appeal from the rulings of the district court related to the contract terms and resulting breaches.  On appeal, Slashfrog argues the court erred in finding it breached the contract and in excluding most of its damages evidence as speculative.  On cross-appeal, Quicks contend the court erred in finding the contract was not unconscionable and in finding they also breached the contract.  OPINION HOLDS: We find no error in granting summary judgment for Slashfrog on Quicks’ unconscionability claim and in finding Slashfrog breached the contract.  However, we find Quicks substantially performed their obligations under the contract and award them the earnest money.  Because of its cancellation of the contract, we do not reach Slashfrog’s arguments about its damages.  We thus affirm the rulings of the district court with some modification.

Case No. 19-0084:  In the Matter of T.M., Alleged to Be Seriously Mentally Impaired

Filed Nov 27, 2019

View Opinion No. 19-0084

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (5 pages)

            T.M. appeals the district court order finding him to be seriously mentally impaired.  OPINION HOLDS: We find there is sufficient evidence to conclude T.M. (1) is mentally ill, (2) lacks sufficient judgment to make responsible decisions with respect to his treatment, and (3) is likely to physically injure himself or others if allowed to remain at liberty without treatment, is likely to inflict serious emotional injury on a designated class of persons, and is unable to satisfy his need for nourishment, clothing, essential medical care, or shelter so that it is likely that he will suffer physical injury, physical debilitation, or death.  We affirm the decision of the district court.

Case No. 19-0253:  In re the Marriage of Goble

Filed Nov 27, 2019

View Opinion No. 19-0253

            Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (10 pages)

            Derek Goble appeals from the district court’s ruling denying his application to modify the physical care provisions of his decree dissolving his marriage to Danielle Goble, now known as Danielle Fenton.  OPINION HOLDS: On our de novo review, we conclude Derek has established a substantial change of circumstances which warrant the modification of the physical care provisions of the decree dissolving his marriage to Danielle.  We therefore reverse and remand for entry of a modified decree.

Case No. 19-0365:  In re the Marriage of Ruba

Filed Nov 27, 2019

View Opinion No. 19-0365

            Appeal from the Iowa District Court for Johnson County, Andrew B. Chappell, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Bart Ruba appeals the district court’s ruling dissolving his marriage with Andrea Ruba.  Bart disputes the physical care of his son and daughter granted to Andrea.  Bart also contests the income the district court imputed to calculate his monthly child support.  Finally, Bart disputes an equalization payment of $60,000 to Andrea.  OPINION HOLDS: Because the approximation of care before the divorce favors placing physical care with Andrea, we affirm the custody provisions of the decree.  Next, we affirm the district court’s child support calculation because the district court’s imputation of income to each parent was reasonable given the evidence presented.  Finally, because we cannot trace the equity in Bart’s pre-marital house to his sole efforts we affirm the district court’s calculation of the equalization payment.

Case No. 19-0447:  James Earl Shepard v. State of Iowa

Filed Nov 27, 2019

View Opinion No. 19-0447

            Appeal from the Iowa District Court for Clinton County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            James Shepard appeals following the denial of his second application for postconviction relief.  Shepard argues the postconviction court erred in finding he was not prejudiced by trial counsel’s and first postconviction counsel’s ineffective assistance.  He also argues his second postconviction counsel was ineffective in not raising an equal protection challenge.  OPINION HOLDS: We agree with the district court that Shepard has not proved the requisite prejudice.  Because the ineffective assistance of second postconviction counsel was not raised below, we do not address it here. We affirm.

Case No. 19-0471:  In re the Marriage of Semerad

Filed Nov 27, 2019

View Opinion No. 19-0471

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (12 pages)

            Cassie Semarad, now Cassie Jordan, appeals from the order modifying the decree dissolving her marriage to Austin Semerad.  Cassie argues the court’s ruling, which modified not only the visitation provisions of the decree but also the child-support and legal-custody provisions, went beyond the relief requested by either party.  She also challenges the visitation graduated timeline and the amount of child support ordered.  OPINION HOLDS: We strike the provision concerning legal custody, affirm the court’s graduated visitation ruling, and remand for necessary child support findings.

Case No. 19-0546:  Kai Andreas Skye, a/k/a Brian E. Andreas v. Mathew Trust, C. Jay Hamilton, as Trustee, David Quinn Andreas, Matthew Shea Andreas, and Ellen Rockne

Filed Nov 27, 2019

View Opinion No. 19-0546

            Appeal from the Iowa District Court for Winneshiek County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Plaintiff appeals from the district court order that entered judgment for attorney fees against him in favor of his the defendants, who are his sons, in the amount of $32,000, plus interest.  OPINION HOLDS: Finding no abuse of discretion, we affirm the trial court.

Case No. 19-0589:  Marvin Mitchell v. Tammy Christensen

Filed Nov 27, 2019

View Opinion No. 19-0589

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  May, J., takes no part.  Opinion by Doyle, J.  (6 pages)

            Marvin Mitchell appeals the denial of his motion to vacate the order granting summary judgment for the defendants.  OPINION HOLDS: Because Mitchell presented no newly discovered evidence, the district court properly exercised its discretion in denying Mitchell’s motion to vacate the summary judgment ruling. 

Case No. 19-0590:  In re the Marriage of Kirsch

Filed Nov 27, 2019

View Opinion No. 19-0590

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED AS MODIFIED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (7 pages)

            Heidi Kirsch challenges provisions of a dissolution decree awarding spousal support to William and the set-aside as an inheritance of an investment account.  OPINION HOLDS: We modify the inheritance set-aside and affirm the spousal support award.

Case No. 19-0636:  In the Interest of S.P., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-0636

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  Dissent by Greer, J.  (13 pages)

            The mother of twelve-year-old S.P. appeals from the termination of her parental rights in a private action brought by the father.  The mother challenges the district court’s determinations she abandoned S.P., pursuant to Iowa Code section 600A.8(3)(b) (2018), and that termination of her parental rights is in S.P.’s best interests.  OPINION HOLDS: Because termination of the mother’s parental rights is not in S.P.’s best interests, we reverse the district court decision terminating the mother’s parental rights and remand for dismissal of the father’s petition.  DISSENT ASSERTS: I would affirm the district court ruling that terminated the mother’s parental rights.  The record here contains no explanation for the mother’s disappearance from S.P.’s life for over ten months.  To extend that history is not in the best interests of this child.

Case No. 19-1097:  In the Interest of S.G. and L.B.-A., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1097

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals a permanency review order entered in the child-in-need-of-assistance proceeding.  OPINION HOLDS: Clear and convincing evidence supports a finding that the Iowa Department of Human Services made reasonable efforts to return the children to the mother’s care.  We cannot find the need for removal will disappear if we delay permanency for six more months, and we therefore decline to continue placement.  We affirm the permanency review order transferring sole custody of S.G. to her father and guardianship and custody of L.B.-A. to his foster parents.  

Case No. 19-1126:  In the Interest of C.S. and A.S., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1126

            Appeal from the Iowa District Court for Guthrie County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (9 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1128:  In the Interest of D.F., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1128

            Appeal from the Iowa District Court for Page County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (8 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, we find the State proved the child could not be safely returned to the mother’s care at the time of the termination-of-parental-rights hearing given her relapses and dishonesty about her alcohol use.  We agree with the juvenile court that termination of the mother’s parental rights was in the child’s best interests and the bond between the parent and child did not outweigh the child’s need for permanency, given the time the mother had been provided and her long history of alcohol use.  For those reasons, we agree with the juvenile court that no additional time was warranted.  So we affirm the juvenile court’s ruling in all respects.

Case No. 19-1169:  In the Interest of P.R., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1169

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., May, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (5 pages)

            The mother and father of P.R. separately appeal the termination of their parental rights.  OPINION HOLDS: Because we agree with the district court that neither parent has the ability to care safely for the child and termination is in the child’s best interests, we affirm.

Case No. 19-1210:  In the Interest of R.E., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1210

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (9 pages)

            A mother appeals the termination of her parental rights to one child arguing the State failed to prove the statutory grounds for termination, termination is not in the child’s best interests, and the Department of Human Services (DHS) failed to provide reasonable efforts toward reunification.  OPINION HOLDS: We conclude the State proved statutory grounds for termination under Iowa Code section 232.116(1)(h) (2019) with regard to the mother, termination was in the child’s best interests, and DHS provided reasonable efforts toward reunification.  We affirm.

Case No. 19-1292:  In the Interest of T.N., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1292

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Carr, S.J.  Tabor, J., takes no part.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the mother’s parental rights and none of the statutory provisions to avoid termination applies.  Termination of the mother’s rights is in the child’s best interests.  We affirm the juvenile court.

Case No. 19-1296:  In the Interest of J.W. and J.W., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1296

            Appeal from the Iowa District Court for Polk County, Lynn Poschner and Kimberly Ayotte, District Associate Judges.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (8 pages)

            A father appeals the child-in-need-of-assistance adjudication concerning his children.  OPINION HOLDS:  The father did not preserve error on his claim a forensic interview was improperly admitted into evidence.  We affirm the juvenile court decisions adjudicating the children to be in need of assistance and denying the father’s request to cancel a protective order.

Case No. 19-1303:  In the Interest of W.L., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1303

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            A mother appeals the modification of the permanency goal in child-in-need-of-assistance proceedings.  OPINION HOLDS: The juvenile court did not specifically rule on the mother’s request for additional time for the permanency hearing, but the court extended the time originally scheduled for the hearing and we conclude the court’s decision to proceed with the hearing did not result in injustice to the mother.  We conclude the modification of the permanency goal to remain in the father’s care rather than reunification with the mother is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1307:  In the Interest of G.G., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1307

            Appeal from the Iowa District Court for Osceola County, David C. Larson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother and father appeal the termination of their parental rights to their child, arguing the grounds for termination cited by the juvenile court were not supported by clear and convincing evidence, termination was not in the child’s best interests, and that an exception to termination should have been invoked that would have placed the child with his aunt.  OPINION HOLDS: We affirm the termination of parental rights to the child.

Case No. 19-1361:  In the Interest of A.C., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1361

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (8 pages)

            Macey, mother of one-year-old A.C., appeals the termination of her parental rights.  Macey argues it is not in A.C.’s best interests, that breaking their bond is detrimental, that the State failed to make reasonable efforts to reunite mother and daughter, and she should be given an additional six months to work toward assuming custody.  OPINION HOLDS: On our review of the record, we affirm termination of Macey’s rights.  The best interests, including consideration of the parent-child bond, requires termination.  The State made reasonable efforts toward reuniting the pair.  And an additional six months of time will not be enough to resolve Macey’s ongoing issues with drugs and instability.

Case No. 19-1375:  In the Interest of P.M. and A.V., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1375

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (5 pages)

            A mother appeals the termination of her parental rights to her children, arguing termination is contrary to the children’s best interests, termination should have been averted by way of the permissive exception to termination contained in Iowa Code section 232.116(3)(c) (2019), and she should have been allowed an additional six months to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-1410:  In the Interest of R.Q., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1410

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We find the court properly determined in the permanency order the child should remain in foster care with his half-sibling rather than moving to the home of the father’s cousin.  We find termination of the father’s parental rights is in the child’s best interests and none of the exceptions to termination should be applied.  We affirm the decision of the juvenile court.

Case No. 19-1422:  In the Interest of A.H., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1422

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-1455:  In the Interest of J.R., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1455

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (5 pages)

            The mother appeals the termination of her parental rights to J.R.  OPINION HOLDS: Because the mother has not overcome her years of substance abuse such that she can safely care for J.R., we affirm.

Case No. 19-1460:  In the Interest of K.W., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1460

            Appeal from the Iowa District Court for Iowa County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child, born in 2015.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-1553:  In the Interest of M.L., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1553

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            A father seeks reversal of the juvenile court’s order terminating his parental relationship with his seven-year-old son.  While the father recognizes he cannot care for the child at the present time, he argues termination is not in his best interests and the court should exercise its discretion not to terminate based on the strong bond and the child’s relative placement.  OPINION HOLDS:  After considering the upheaval in the child’s home life and the toll it has taken on him, we decline to reverse the termination order.  Prolonging uncertainty about the child’s life will likely worsen his mental-health condition, and neither of the permissive factors weigh against termination in this case.  We affirm the termination order. 

Case No. 19-1562:  In the Interest of A.M., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1562

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., May, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals adjudicatory and dispositional orders in a child-in-need-of-assistance action, contending (A) “[t]he first removal was premised solely on circumstances regarding the mother” and (B) his “constitutional right to care for his child should not have been infringed based upon his failure to submit to a worker’s request for drug testing.”  OPINION HOLDS: Upon our review, we affirm the juvenile court’s orders.   

Case No. 19-1564:  In the Interest of J.K., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1564

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (11 pages)

            A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: We affirm on both appeals.

Case No. 19-1575:  In the Interest of A.H., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1575

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A mother and father separately appeal the termination of their parental rights to a child.  The mother contends the State failed to prove the grounds for termination cited by the district court, termination was not in the child’s best interests, and she should have been afforded additional time to work toward reunification with the child.  The father contends the department failed to make reasonable efforts to reunify him with his child and the district court should have afforded him additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of parental rights to the child.

Case No. 19-1630:  In the Interest of V.K., C.K., and I.K., Minor Children

Filed Nov 27, 2019

View Opinion No. 19-1630

            Appeal from the Iowa District Court for Madison County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights to her three children, arguing termination is contrary to the children’s best interests and the court should have established a guardianship in the children’s maternal grandparents rather than terminate her parental rights.  OPINION HOLDS: We conclude termination of the mother’s parental rights is in the children’s best interests and the establishment of a guardianship in lieu of termination is inappropriate under the circumstances of this case.  We affirm the termination of the mother’s parental rights.  

Case No. 19-1671:  In the Interest of L.B., Minor Child

Filed Nov 27, 2019

View Opinion No. 19-1671

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Mullins, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A father appeals the juvenile court order adjudicating his daughter a child in need of assistance.  OPINION HOLDS: Finding the adjudication is supported under paragraph (c)(2) of Iowa Code section 232.2(6) (2019), we affirm on that ground but reverse adjudication under paragraph (n).

Case No. 17-2091:  Addison Insurance Company v. MEP Co.

Filed Nov 06, 2019

View Opinion No. 17-2091

            Appeal from the Iowa District Court for Lee (North) County, John G. Linn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            MEP Co. appeals the district court’s declaratory judgment in favor of Addison Insurance Company.  OPINION HOLDS: The district court’s findings are supported by substantial evidence, and we discern no error in the court’s conclusion.  We affirm.

Case No. 18-0033:  State of Iowa v. Elisa Marie Walker a/k/a Montgomery

Filed Nov 06, 2019

View Opinion No. 18-0033

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

            Elisa Walker appeals after entering written pleas to fourth-degree theft and fourth-degree fraudulent practices, claiming she failed to understand fully the plea and its consequences.  OPINION HOLDS: Walker failed to preserve her challenge to the plea based on her alleged lack of understanding for our review.  So we affirm.

Case No. 18-0081:  State of Iowa v. Kamie Jo Schiebout

Filed Nov 06, 2019

View Opinion No. 18-0081

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott and Jeffrey A. Neary, Judges.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J. (16 pages)

            The defendant appeals her conviction and sentence for theft by check in the second degree contending the State failed to prove (1) that she knew the checks would not be paid and (2) that she received property, services, or money from the transactions.  She also alleges the court improperly instructed the jury on aggregation.  Lastly, she challenges the district court’s ruling that a sheriff’s reimbursement claim for $28,136 in medical aid under Iowa Code section 356.7 (2018) be listed as a civil judgment against her, when she was not represented by counsel at the hearing on the claim.  OPINION HOLDS: Sufficient evidence supports her conviction, and we affirm the verdict.  But on the medical aid, we remand for a hearing on the sheriff’s claim where the defendant is afforded the right to the assistance of counsel.

Case No. 18-0208:  State of Iowa v. Tait Otis Purk

Filed Nov 06, 2019

View Opinion No. 18-0208

            Appeal from the Iowa District Court for Tama County, Ian K. Thornhill, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (18 pages)

            Tait Purk appeals his conviction and sentence for second-degree murder following a bench trial.  He raises numerous claims, including many ineffective-assistance claims.  OPINION HOLDS: We affirm his conviction and sentence.  And we preserve all but one of his ineffective-assistance claims for future postconviction proceedings.

Case No. 18-0421:  State of Iowa v. Kenneth Curtis Shaw

Filed Nov 06, 2019

View Opinion No. 18-0421

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J. (9 pages)

            Kenneth Shaw appeals his conviction and sentence for first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (2017).  Shaw was sentenced to a twenty-five year prison sentence, with 70% mandatory incarceration.  On appeal, Shaw argues: (1) the State did not provide sufficient evidence to show Shaw committed the robbery; and (2) the jury pool was not a fair cross-section of the community in violation of his rights under the Sixth Amendment to the United States Constitution and Article I, section 10 of the Iowa State Constitution.  OPINION HOLDS: Sufficient evidence supports the jury’s determination that Shaw committed the robbery.  The district court correctly determined Shaw failed to meet his burden to establish a prima facie case of fair cross-section violation.  But because the parties did not have the benefit of recent refinements to Iowa law, we remand the matter to the district court to give Shaw an opportunity to develop his arguments that his constitutional right to an impartial jury was violated; if the court finds a violation occurred, it shall grant Shaw a new trial.

Case No. 18-0603:  In re the Marriage of Rath

Filed Nov 06, 2019

View Opinion No. 18-0603

            Appeal from the Iowa District Court for Benton County, Patrick R. Grady, Judge.  DIRECT APPEAL AFFIRMED; WRIT ANNULLED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (3 pages)

            Keith Rath appeals from the district court’s refusal to hold his former wife, Melinda Gordon, in contempt for failure to comply with property provisions of their divorce decree.  Although it refused to find Melinda in contempt, the court did find Keith in contempt for his own failure to comply with the decree.  Keith filed an appeal to the joint order.  OPINION HOLDS: Although an appeal lies from the refusal of the court to find Melinda in contempt, the proper mode of review for the finding Keith was in contempt was petition for writ of certiorari.  We treat the appeal as though Keith requested the proper form of review.  And, after a careful review of the record, briefs, and applicable law, we affirm the district court’s ruling without opinion under Iowa R. App. P. 6.1203(a) and (d).  We affirm.   

Case No. 18-0757:  State of Iowa v. Berlou Joe Barnard

Filed Nov 06, 2019

View Opinion No. 18-0757

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Potterfield, J.  (14 pages)

            Defendant Berlou Barnard appeals his conviction of four separate counts of sexual abuse in the second degree and one count of obstruction of justice based on error in two evidentiary rulings.  Barnard argues (1) his Sixth Amendment rights were violated when a videotaped interview with the child complaining witness was admitted over his objection; (2) the district court erred by admitting the interview over his hearsay objection; and (3) the district court erred by granting the State’s motion in limine to prevent him from introducing evidence that the child complaining witness had made false allegations of sexual abuse against another family member before. OPINION HOLDS: The district court did not err by admitting the videotaped interview or by granting the State’s motion in limine.  We affirm. 

Case No. 18-0862:  State of Iowa v. Michael David Dawson

Filed Nov 06, 2019

View Opinion No. 18-0862

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman and Bradley J. Harris, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (9 pages)

            Michael Dawson appeals his convictions for various drug crimes, eluding, and driving while barred.  OPINION HOLDS: The district court did not abuse its discretion in not ruling on pro se motions that did not articulate claims with any clarity.  Sufficient evidence supports Dawson’s possession conviction.  We preserve Dawson’s ineffective-assistance claims for possible future postconviction-relief proceedings.

Case No. 18-0892:  Alonzo Stokes v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-0892

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Alonzo Stokes appeals the district court order denying his application for postconviction relief from his first-degree-robbery conviction.  OPINION HOLDS: Because the jury’s verdict finding Stokes guilty of first-degree robbery while acquitting him of first-degree burglary was not inconsistent, Stokes has failed to show his trial counsel was ineffective by failing to object on this basis. 

Case No. 18-0918:  Napa Valley Owners Association v. John Barton Goplerud and Leslie Clemenson

Filed Nov 06, 2019

View Opinion No. 18-0918

            Appeal from the Iowa District Court for Dallas County, Dustria A. Relph, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (16 pages)

            John Barton Goplerud and Leslie Clemenson (“Gopleruds”) appeal district court orders enjoining Lyle and Dorothy Hale from using an outbuilding on the Gopleruds’ property as a residential dwelling; ordering removal of structures and restoration of the lot to pre-construction condition; and awarding attorney fees and costs to the Napa Valley Owner’s Association (“Association”).  The Gopleruds argue the district court erred in: (1) concluding they violated restrictive covenants because the Association (a)  lacked authority to enforce the covenants and (b) unreasonably enforced the covenants, (2) ordering injunctive relief, and (3) awarding attorney fees to the Association.  OPINION HOLDS: Because the Association ratified the actions of the Board and Architectural Control Committee (ACC), and that ratification was retroactive, the Board was entitled to enforce the restrictive covenants.  Our de novo review of the record reveals the Board and ACC’s findings regarding the covenant violations are not unreasonable, arbitrary, or capricious.  The contractual nature of the covenants also justify the imposition of injunctive relief mandating removal of offending structures and barring prohibited use.  Finally, we find there was no abuse of discretion in awarding attorney fees and costs to the Association.

Case No. 18-1027:  In re the Marriage of Pontier

Filed Nov 06, 2019

View Opinion No. 18-1027

            Appeal from the Iowa District Court for Warren County, Richard B. Clogg, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Matthew Pontier appeals several provisions of the decree dissolving his marriage to Jessica Pontier: (1) the spousal support provision; (2) the parenting schedule associated with the court’s award of joint physical care of their three children; (3) a child support award of $350 per month; and (4) a provision requiring him to pay Jessica’s portion of a custody-evaluation fee.  OPINION HOLDS: We affirm on all issues, but we modify that portion of the dissolution decree ordering child support of $350 and remand for recalculation of child support with the spousal support added and deducted as prescribed by Iowa Court Rule 9.5(1)(a)(1).  On remand, the court should also determine the appropriate amount of appellate attorney fees.

Case No. 18-1220:  State of Iowa v. Jehu Purnell

Filed Nov 06, 2019

View Opinion No. 18-1220

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Greer, J. (7 pages)

           

            Jehu Purnell challenges his conviction of one count of willful injury causing serious injury, arguing there is insufficient evidence to prove identity and specific intent.  OPINION HOLDS: There was sufficient evidence to convince a rational jury beyond a reasonable doubt that Purnell committed the offense and that he had the specific intent to cause serious injury.  We affirm.

Case No. 18-1433:  In the Interest of K.C., Minor Child

Filed Nov 06, 2019

View Opinion No. 18-1433

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A father appeals from the private termination of his parental rights, contending the evidence of abandonment is insufficient.  He also maintains his retained counsel provided ineffective assistance.  OPINION HOLDS: Despite his subjective interest in the child, there is clear and convincing evidence the father did not attempt to maintain any contact with the child from 2010 to 2017.  The father has failed to prove counsel was ineffective.  We therefore affirm the termination of the father’s rights.

Case No. 18-1436:  State of Iowa v. Daniel Joseph Buenneke

Filed Nov 06, 2019

View Opinion No. 18-1436

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  ROBBERY AND THEFT CONVICTIONS and sentences VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J. (6 pages)

            Daniel Buenneke challenges the factual basis for his pleas to second-degree robbery and first-degree theft, which he entered as part of a plea agreement involving multiple charges.  OPINION HOLDS: Because there is an insufficient factual basis for Buenneke’s robbery and theft pleas, we vacate the district court’s judgment of conviction and sentence on both the robbery and theft charges.  We remand to allow the State an opportunity to establish a factual basis for the guilty plea. 

Case No. 18-1438:  State of Iowa v. Nicholas Andrews

Filed Nov 06, 2019

View Opinion No. 18-1438

            Appeal from the Iowa District Court for Webster County, Bethany J. Currie and Kurt L. Wilke, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Nicholas Andrews claims the State breached its plea agreement with him and his attorney was ineffective in not objecting.  OPINION HOLDS: The record is not developed enough for us to decide whether Andrews received ineffective-assistance-of-counsel.  So we affirm his conviction and preserve the ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings. 

Case No. 18-1473:  Richard J. Holman and Becky S. Holman, individually, as father and mother and next friend of C.L.H., a minor v. DAC, Inc.

Filed Nov 06, 2019

View Opinion No. 18-1473

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (11 pages)

            The plaintiffs appeal the order granting summary judgment on their negligence claims in favor of the defendant, a group home for persons with intellectual disabilities.  They contend the defendant owed a legal duty to protect third parties from harm posed by a resident who tried to sexually assault a minor.  OPINION HOLDS: Because the relationship between the parties and public policy considerations weigh against finding the defendant had a legal duty to protect third parties from harm posed by one of its residents, we affirm the order granting summary judgment.

Case No. 18-1643:  State of Iowa v. Rudy Danilo Depaz Colocho

Filed Nov 06, 2019

View Opinion No. 18-1643

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Rudy Colocho was convicted for third-offense operating a vehicle while intoxicated.  During a traffic stop, a police officer accommodated Colocho’s request to urinate before he performed field sobriety tests.  The officer took Colocho to the police station, but after he used the restroom, he still refused sobriety testing.  Instead, Colocho started speaking Spanish and requested an attorney.  The officer rejected the request.  After an interpreter was brought in Colocho still refused sobriety testing.  The officer then arrested Colocho and advised him his Iowa Code section 804.20 (2018) rights.  The officer estimated Colocho had just a little under an hour to make a phone call before the officer invoked implied consent.  Colocho refused to take the DataMaster test.  Colocho now appeals. OPINION HOLDS: We agree with the district court’s additional finding that the officer remedied the situation by later advising Colocho of his rights.  Also, because no excludable evidence emerged between the alleged violation and the officer’s giving of the advisory, we need not apply a fruits analysis.  Also, because Colocho refused the DataMaster test nearly an hour after receiving the advisory, the test refusal was admissible evidence in his stipulated bench trial.  Also, because the stipulated record contained strong evidence Colocho was operating while under the influence, we find any violation of Colocho’s rights under section 804.20 was harmless error.  Colocho is not entitled to new trial.

Case No. 18-1704:  Odell Everett Jr. v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1704

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Odell Everett Jr. appeals from the summary dismissal of his third application for postconviction relief in which he challenges his 2005 conviction for first-degree robbery.  OPINION HOLDS: We agree with the district court’s conclusions that Everett’s reliance on Schmidt v. State, 909 N.W.2d 778 (Iowa 2018), was “misplaced because there is no allegation of newly discovered evidence upon which any claim of actual innocence could be made,” and that Everett’s “claims have been fully adjudicated and are time barred.”  We find no error and therefore affirm.

Case No. 18-1727:  State of Iowa v. Jaevon Tramere Holmes

Filed Nov 06, 2019

View Opinion No. 18-1727

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (7 pages)

            Jaevon Holmes appeals his conviction for escape under Iowa Code section 719.4(1) (2017).  He contends the evidence at his bench trial supported only the lesser offense of absence from custody under Iowa Code section 719.4(3).  OPINION HOLDS: Because ample evidence backs the district court’s determination Holmes intentionally and without permission left the work-release facility where he was held after violating parole on his felony convictions, we affirm.

Case No. 18-1763:  State of Iowa v. Eddie Donovan Delong

Filed Nov 06, 2019

View Opinion No. 18-1763

            Appeal from the Iowa District Court for Cherokee County, David A. Lester, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (5 pages)

            Eddie DeLong appeals his restitution order, claiming there is not an adequate causal connection between the ordered restitution and his crimes.  OPINION HOLDS: We find substantial evidence supports the district court’s findings and affirm.

Case No. 18-1810:  Milligan v. Ottumwa Civil Service Commission

Filed Nov 06, 2019

View Opinion No. 18-1810

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  REVERSED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (17 pages)

            Appellants Ottumwa Civil Service Commission, City of Ottumwa, and Ottumwa Police Department appeal from the district court ruling that reversed the suspension and termination of Sergeant Mark Milligan and awarded him back pay.  The appellants argue Sergeant Milligan’s suspension and termination were appropriate and the court erred by refusing to reduce his damages by income he received from other sources.  OPINION HOLDS: We find Sergeant Milligan violated department rules and uphold the suspension and termination.  Given this determination, the damage question is moot. 

Case No. 18-1817:  Oliver Fenceroy v. Gelita USA, Inc., Bob Kersbergen, Tom Haire, Jeff Tolsma, and Jeremy Kneip

Filed Nov 06, 2019

View Opinion No. 18-1817

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (10 pages)

            Oliver Fenceroy appeals the district court’s granting of summary judgment in favor of defendants Gelita USA, Inc., Tom Haire, and Jeff Tolsma to dismiss his claims of racial harassment, racial discrimination, and intentional infliction of emotional distress.  OPINION HOLDS: We find Fenceroy did not show Gelita had the requisite knowledge to support the harassment claims, did not establish an adverse employment action for his discrimination claim, and the evidence did not support a finding of severe emotional distress.  We affirm.

Case No. 18-1824:  Benjamin E. Schreiber v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1824

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (8 pages)

            Benjamin Schreiber seeks to resurrect his third postconviction-relief application (PCR) after the district court granted the State’s motion to dismiss.  Schreiber was convicted of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (1996).  On appeal, he alleges the district court made several errors in the course of handling his PCR application, including (1) denying him a meaningful opportunity to respond by failing to provide him adequate notice of the hearing on the State’s motion to dismiss, failing to record the proceedings, and dismissing his application without an evidentiary hearing; (2) requiring him to pay 20% of the filing fee for the PCR application; and (3) denying his application for court-appointed counsel.  OPINION HOLDS: Schreiber was given an opportunity to be heard, and the district court did not err by not recording the proceedings and granting the State’s motion to dismiss his application.  The district court did not err by requiring him to pay 20% of the filing fee or by denying his application for court appointed counsel.  We affirm.

Case No. 18-1869:  Stephen Andrea Marks v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-1869

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Stephen Marks was convicted of second-degree robbery and sentenced under Iowa Code section 902.12(5) (2013), which required a seventy percent mandatory minimum.  In 2016, the statute was amended to allow a range of fifty to seventy percent mandatory minimum for second-degree robbery sentences.  See Iowa Code § 902.12(3) (2016).  Marks filed a postconviction-relief application arguing the amended statute should apply retroactively.  OPINION HOLDS: By its plain words, the 2016 amendment only applies prospectively.  Moreover, we are not persuaded by Marks’s due process, equal protection, and cruel-and-unusual-punishment claims.  Therefore, we affirm the denial of Marks’s postconviction-relief application.

Case No. 18-1910:  In re the Marriage of Mann

Filed Nov 06, 2019

View Opinion No. 18-1910

            Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J. Concurrence in part and dissent in part by May, J.  (18 pages)

            Steven Mann appeals several provisions of the decree dissolving his marriage to Andrea Mann.  OPINION HOLDS: We conclude Steven should receive $2395 in spousal support per month for a period of three years, and we modify the decree in that regard.  We affirm the district court’s property distribution.  We decline Andrea’s request for appellate attorney fees.  PARTIAL DISSENT ASSERTS: I do not conclude the district court's denial of spousal support constituted a failure to do equity.  So I would not modify the decree.  As to all other issues.  I concur with the majority.

Case No. 18-1938:  In re the Marriage of Garrels

Filed Nov 06, 2019

View Opinion No. 18-1938

            Appeal from the Iowa District Court for Clinton County, Stuart P. Werling, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (4 pages)

            A mother appeals the district court’s calculation of the parties’ obligation for their child’s postsecondary education expenses.  OPINION HOLDS: We affirm the district court’s decision requiring the parents to contribute to the child’s postsecondary education expenses but modify to increase each parent’s obligation to $9352.

Case No. 18-2008:  George J. Saluri and Candace C. Saluri v. Jay R. Buckley and Cathy Buckley

Filed Nov 06, 2019

View Opinion No. 18-2008

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            George and Candace Saluri appeal the district court decision granting summary judgment to Jay and Cathy Buckley on the ground the Saluris’ claims of negligence, negligence per se, temporary nuisance, permanent nuisance, and trespass are barred by the statute of limitations.  OPINION HOLDS:  We find the district court properly granted summary judgment to the Buckleys on the ground the Saluris’ claims are barred by the five-year statute of limitations in Iowa Code section 614.1(4) (2017) for injuries to property.  We affirm the district court.

Case No. 18-2015:  Stephen Carl Brodersen, Jr. v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 18-2015

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (5 pages)

            Stephen Broderson appeals the dismissal of his postconviction-relief application.  OPINION HOLDS: Broderson has not met his burden of proof on any of his ineffective-assistance claims.  Therefore, we affirm.

Case No. 18-2018:  In re the Marriage of Melrose

Filed Nov 06, 2019

View Opinion No. 18-2018

            Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.  AFFIRMED AS MODIFIED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (7 pages)

            Carole Browman, formerly known as Carole Melrose, appeals from the spousal support provisions of the decree dissolving her marriage to Mark Melrose.  OPINION HOLDS: Ultimately, we find the court’s determination of Mark’s annual income to be with the range of evidence.  Nevertheless, having considered all of the relevant factors, we conclude upon our de novo review of the record that Carole’s alimony award should be increased to $3000 per month.  We decline each party’s request for appellate attorney fees in this appeal.

Case No. 18-2036:  State of Iowa v. Brett Calvin Hensley

Filed Nov 06, 2019

View Opinion No. 18-2036

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  APPEAL DISMISSED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Defendant Brett Hensley appeals the denial of his request for earned time credit pursuant to Iowa Code section 903A.2(3) (2018).  OPINION HOLDS: We dismiss Hensley’s appeal due to mootness.

Case No. 18-2037:  Robert Raw v. Christina Spofford

Filed Nov 06, 2019

View Opinion No. 18-2037

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (12 pages)

            Dr. Robert Raw appeals the district court’s grant of summary judgment on statute-of-limitation grounds in favor of Dr. Christina Spofford on his claims of defamation.  Raw generally argues the court erred in concluding he was on inquiry notice of his claims in 2014, thus barring his 2017 petition as outside the two-year statute of limitations contained in Iowa Code section 614.1(2) (2017).  OPINION HOLDS: We affirm the district court’s conclusions that Raw was on notice of his claims against Spofford no later than 2014, the claims had accrued at that time, and Raw’s 2017 petition was therefore barred by the two-year statute of limitations.

Case No. 18-2061:  State of Iowa v. Michael Joseph Debettignies

Filed Nov 06, 2019

View Opinion No. 18-2061

            Appeal from the Iowa District Court for Floyd County, Chris Foy, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (4 pages)

            Michael Debettignies appeals his conviction for third-degree sexual abuse.  He contends the district court abused its discretion when it sustained a motion in limine.  OPINION HOLDS:  Debettignies failed to preserve error because (1) he did not offer the evidence during trial and (2) the motion in limine ruling was not unequivocal so as to leave no question as to whether the evidence would be admitted.

Case No. 18-2066:  Maria Del Rosario Romero v. Curly's Food, and Safety National

Filed Nov 06, 2019

View Opinion No. 18-2066

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Maria Del Rosario Romero appeals the district court decision affirming the workers’ compensation commissioner’s denial of benefits, challenging the commissioner’s application of the discovery rule.  OPINION HOLDS: The commissioner’s findings are supported by substantial evidence, and the commissioner’s application of the discovery rule to the facts was not irrational, illogical, or wholly unjustifiable.

Case No. 18-2244:  In re the Marriage of Amit Gupta and Manika Bansal

Filed Nov 06, 2019

View Opinion No. 18-2244

            Appeal from the Iowa District Court for Johnson County, Andrew Chappell, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (3 pages)

            Former spouses appeal and cross-appeal a decree of dissolution of marriage.  OPINION HOLDS: We affirm the district court’s decree of dissolution of marriage. 

Case No. 19-0108:  Fred Vogt v. City of Carter Lake and Carter Lake City Council

Filed Nov 06, 2019

View Opinion No. 19-0108

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            Fred Vogt appeals from a district court order granting the City of Carter Lake and Carter Lake City Council’s motion to dismiss.  Vogt sought declaratory judgment to enjoin amendment to zoning regulations to allow gaming facilities in C-2 General Commercial Districts.  OPINION HOLDS: We find to the extent the zoning district applied to property outside of tribal trust property, the court had jurisdiction over the action and reverse and remand for further proceedings.

Case No. 19-0123:  Douglas D. Hickman and Susan A. Hickman v. Ringgold County, Iowa

Filed Nov 06, 2019

View Opinion No. 19-0123

            Appeal from the Iowa District Court for Ringgold County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Lloyd, S.J., takes no part.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Douglas and Susan Hickman appeal the district court’s denial of injunctive relief regarding their challenge to Ringgold County’s condemnation of a portion of their land, contending Iowa Code section 6A.22 (2018) “restricts and prohibits the authority of a county to condemn private land to facilitate private use and/or for economic development.”  OPINION HOLDS: Because the County was statutorily authorized to upgrade the road, we affirm the court’s dismissal of the Hickmans’ challenge to the County’s condemnation notice. 

Case No. 19-0131:  Ronald Dean Agee v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 19-0131

            Appeals from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge (19-0345) and the Iowa District Court for Jasper County, Thomas P. Murphy, Judge (19-0131).  AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            Ronald Agee appeals the district court’s dismissal of his petition for writ of habeas corpus and denial of his motion to correct an illegal sentence.  Agee argues he can pursue his claims through a petition for habeas corpus and also that he was entitled to an automatic discharge of his lifetime special sentence after ten years with credit for time served in prison.  OPINION HOLDS: Agee committed a public offense; for that reason a writ of habeas corpus is unavailable to him.  Iowa Code section 903B.1 (2007) provides for a lifetime special sentence and the length of the sentence for the criminal offense is irrelevant.  Unless the Iowa Board of Parole decides to discharge his special sentence, Agee is required to comply with its terms for the rest of his life or face revocation of release.  We affirm both district court rulings.

Case No. 19-0277:  State of Iowa v. Gregory John Schuldt

Filed Nov 06, 2019

View Opinion No. 19-0277

            Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy and Randy V. Hefner, Judges.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J. (10 pages)

            Gregory Schuldt appeals the denial of his motion to suppress in which he challenged the district court’s issuance of three separate search warrants sought by Newton police in their investigation of a drive-by shooting.  Schuldt also contests the district court’s imposition of court costs without determining his reasonable ability to pay.  OPINION HOLDS: Based upon our review, the district court had a substantial basis for concluding probable cause existed to issue the warrants.  But the court failed to apply the statutory requirements for restitution.  We affirm the convictions but reverse the sentence in part and remand for entry of a final restitution order.

Case No. 19-0328:  George McClennon v. State of Iowa

Filed Nov 06, 2019

View Opinion No. 19-0328

            Appeal from the Iowa District Court for Woodbury County, Julie Schumacher, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (5 pages)

            George McClennon appeals the summary disposition of his application for postconviction relief claiming he received ineffective assistance of counsel and an illegal sentence.  OPINION HOLDS: We find counsel was not ineffective and McClennon’s sentence is not illegal.  We affirm the summary disposition of his application for postconviction relief.

Case No. 19-0345:  State of Iowa v. Ronald Dean Agee

Filed Nov 06, 2019

View Opinion No. 19-0345

            Appeals from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge (19-0345) and the Iowa District Court for Jasper County, Thomas P. Murphy, Judge (19-0131).  AFFIRMED ON BOTH APPEALS. Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            Ronald Agee appeals the district court’s dismissal of his petition for writ of habeas corpus and denial of his motion to correct an illegal sentence.  Agee argues he can pursue his claims through a petition for habeas corpus and also that he was entitled to an automatic discharge of his lifetime special sentence after ten years with credit for time served in prison.  OPINION HOLDS: Agee committed a public offense; for that reason a writ of habeas corpus is unavailable to him.  Iowa Code section 903B.1 (2007) provides for a lifetime special sentence and the length of the sentence for the criminal offense is irrelevant.  Unless the Iowa Board of Parole decides to discharge his special sentence, Agee is required to comply with its terms for the rest of his life or face revocation of release.  We affirm both district court rulings.

Case No. 19-0691:  Fama Diakhoumpa v. Ismaila Sarr

Filed Nov 06, 2019

View Opinion No. 19-0691

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            Ismaila Sarr appeals a domestic abuse protective order.  OPINION HOLDS: We find a preponderance of evidence supports the district court’s protective order and affirm.

Case No. 19-0693:  State of Iowa v. Thomas Robert Stogdill

Filed Nov 06, 2019

View Opinion No. 19-0693

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (3 pages)

            Thomas Stogdill challenges the sufficiency of the evidence supporting his conviction for assault while using or displaying a dangerous weapon.  OPINION HOLDS: Substantial evidence supports the finding that a thrown hammer meets the definition of a dangerous weapon under Iowa Code section 702.7 (2018) as an instrument used in a way that shows a person intends to inflict death or serious injury on another and which can inflict death when so used.

Case No. 19-1054:  In the Interest of A.C., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1054

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the child could not be returned to the mother’s care at the time of the termination hearing and that termination is in the child’s best interests.  Because none of the circumstances listed in Iowa Code section 232.116(3) (2018) weigh against terminating the mother’s parental rights, we affirm.

Case No. 19-1055:  In the Interest of A.B. and A.B., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1055

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (11 pages)

            A mother of two children appeals a permanency review order placing legal custody of the children with their father, contending (A) “the [juvenile] court erred in not returning the children to [her] care as there was no physical or adjudicatory harm preventing their return”; (B) “the [juvenile] court erred in [entering] a permanency order when the department [of human services] had not made reasonable efforts towards reunification as it failed to compel the children to individual counseling and family counseling with [her]”; and (C) “the department of human services did not [provide] notice that the hearing could be a permanency decision, as the court had previously ruled that she had an additional six months.”  OPINION HOLDS: We affirm the juvenile court’s permanency review order in its entirety.

Case No. 19-1072:  Little Hands Childcare & Preschool, Inc. v. Employment Appeal Board

Filed Nov 06, 2019

View Opinion No. 19-1072

            Appeal from the Iowa District Court for Dickinson County, Don E. Courtney, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Mullins and May, JJ.  Opinion by Bower, C.J.  (5 pages)

            The Employment Appeal Board (EAB) determined Amy Harbst Baschke was discharged for no qualifying reason from her employment with Little Hands Childcare & Preschool, Inc.  The district court reversed, and the EAB appeals.  OPINION HOLDS: Because the EAB’s decision was supported by substantial evidence and was not unreasonable or wholly unjustifiable, the district court erred in reversing the EAB’s ruling.  We reverse and remand for dismissal of the employer’s petition.

Case No. 19-1079:  In the Interest of M.E., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1079

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Greer, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  The mother does not challenge the statutory grounds for termination, and we find termination of the mother’s parental rights is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1080:  In the Interest of T.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1080

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (7 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: We find clear and convincing evidence supporting the termination of the mother’s rights exists under Iowa Code section 232.116(1)(h) (2019), additional time for the father to achieve reunification is unwarranted, and termination of both parents’ rights is in the best interest of the child.

Case No. 19-1115:  In the Interest of P.H., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1115

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

            A mother and father separately appeal the termination of their parental rights to one child.  OPINION HOLDS:  Ongoing substance-abuse and domestic-violence issues, as well as general instability, render the parents unable to resume care of the child.  It is in the child’s best interests to terminate parental rights, and no other statutory factor should prevent that.  The parenting deficiencies would still be present in six months, so additional time is not warranted.  We affirm. 

Case No. 19-1118:  In the Interest of J.R. and D.R., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1118

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (15 pages)

            A mother and father appeal the termination of their parental rights.  OPINION HOLDS: Here, the State proved a ground for termination of the parents’ parental rights.  The record shows termination of parental rights was in the children’s best interest.  There was a material change in circumstances to support modification of the permanency order from placing the children in a guardianship to termination of parental rights with the possibility of adoption by their guardian.  Res judicata and related doctrine does not apply, and the mother’s issue on the entry of a no-contact order is moot.  For all of these reasons, we affirm the juvenile court’s order terminating each parent’s parental rights.

Case No. 19-1144:  In the Interest of Q.R., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1144

            Appeal from the Iowa District Court for Calhoun County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A father appeals the termination of his parental rights to his child, challenging the sufficiency of the evidence supporting the statutory grounds for termination and contending the juvenile court should have applied the statutory exceptions under Iowa Code section 232.116(3)(a) and (c) (2019) to preclude termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights.

Case No. 19-1183:  In the Interest of R.A., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1183

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            The mother and father separately appeal the termination of their parental rights to their child, R.A., contending the juvenile court did not have jurisdiction to enter the child-in-need-of-assistance (CINA) and termination orders.  OPIINION HOLDS: Applying the Uniform Child Custody Jurisdiction Enforcement Act found in Iowa Code chapter 598B (2019), the juvenile court had jurisdiction to enter the CINA and termination orders.  We affirm.

Case No. 19-1225:  In the Interest of A.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1225

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We conclude the father waived his claim the State did not engage in reasonable efforts to reunite him with the child, there is sufficient evidence in the record to support termination, the juvenile court properly denied the father’s request for additional time, and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1293:  In the Interest of M.M. and C.M., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1293

            Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko, Associate Juvenile Judge.  REVERSED ON BOTH APPEALS AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  Dissent by Vaitheswaran, P.J.  (10 pages)

            Mother of two of the children and father of one appeal the termination of their parental rights and contend that the juvenile court should have granted their requests for a six-month extension under Iowa Code section 232.104(2)(b) (2019) and not ordered termination.  OPINION HOLDS: Because the parents were making positive efforts to change behavior which was the basis for removal, the juvenile court should have granted the extension.  DISSENT ASSERTS: I would affirm the juvenile court’s denial of six additional months to work toward reunification and the termination of parental rights to the children.

Case No. 19-1343:  In the Interest of L.H., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1343

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            A father appeals a dispositional-review order in a child-in-need-of-assistance proceeding.  The father argues the court erred in finding the Iowa Department of Human Services (DHS) made reasonable efforts toward reunification and in failing to change the child’s placement.  OPINION HOLDS: Our de novo review of the record reveals the father’s failure to timely comply with substance-abuse and psychological evaluations justifies the district court’s refusal to order more in-home visitation.  Clear and convincing evidence supports the district court’s finding DHS made reasonable efforts.  Furthermore, we agree with the juvenile court’s denial of the motion for change of placement, favoring the child’s placement in an appropriate long-term placement until the child can be returned to a parental home.

Case No. 19-1391:  In the Interest of S.R., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1391

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  (6 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS: We find sufficient evidence supports the termination, additional time is unwarranted, and termination is in the best interests of the child.  We affirm.

Case No. 19-1411:  In the Interest of A.C. and A.C., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1411

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.  Opinion by Greer, J.  (10 pages)

            A mother appeals the termination of her parental rights to two minor children.  The mother argues the State failed to prove she was not able to resume custody of the children at the time of the termination hearing and termination is not in the children’s best interests.  OPINION HOLDS: The State proved the mother could not resume custody of the children at the time of the termination hearing by clear and convincing evidence and termination is in the best interests of the children.

Case No. 19-1418:  In the Interest of A.D., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1418

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            Both parents appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: We find it would not be in the child’s best interests to grant the parents an extension of time to work on reunification, there is clear and convincing evidence in the record to support termination of their parental rights, termination is in the child’s best interests, and none of the exceptions to termination should be applied.  The child has extensive medical needs which the parents are not able to meet.

Case No. 19-1446:  In the Interest of E.S., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1446

            Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (10 pages)

            A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: The statutory grounds authorizing termination were met because the child could not be returned to either parent without a risk of harm.  Termination of both parents’ rights is in the child’s best interests.  The father’s bond with the child is not so strong to preclude termination.  Neither parent is entitled to additional time to work toward reunification.

Case No. 19-1450:  In the Interest of S.M., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1450

            Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A father appeals the termination of his parental rights to his child, contending (1) the record lacks clear and convincing evidence to support the grounds for termination cited by the juvenile court and (2) termination was not in the child’s best interests.  OPINION HOLDS: We affirm the juvenile court’s termination of the father’s parental rights to the child.

Case No. 19-1457:  In the Interest of J.D., J.D., and M.S., Minor Children

Filed Nov 06, 2019

View Opinion No. 19-1457

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Opinion by Mullins, J.  (8 pages)

            Parents separately appeal a juvenile court order terminating their parental rights.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-1499:  In the Interest of L.J., Minor Child

Filed Nov 06, 2019

View Opinion No. 19-1499

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            A mother appeals the order terminating her parental rights to her daughter after she found her four-year-old dead due to an overdose of Benadryl.  She contests the statutory grounds under Iowa Code section 232.116(1) (2019), the best-interests determination under section 232.116(2), and the Court’s decision to not apply the permissive factor in section 232.116(3)(c).  She also claims the State did not make reasonable efforts to reunite her with L.J.  OPINION HOLDS: DHS made reasonable efforts toward reunification consistent with L.J.’s best interests.  Also, the mother has unresolved trauma and mental-health challenges that prevent reunification with L.J.  Next, we find troubling the mother’s pattern of neglectful parenting.  Finally, the record does not show their relationship remained so close that L.J. will be disadvantaged by the termination.

Case No. 17-2024:  Euric Abray Fountain v. State of Iowa

Filed Oct 23, 2019

View Opinion No. 17-2024

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (9 pages)

            Euric Fountain appeals the summary disposition of his seventh application for postconviction relief.  OPINION HOLDS:  We affirm the district court’s finding that information received by Fountain more than two decades ago does not amount to newly discovered evidence sufficient to toll the statute of limitations contained in Iowa Code section 822.3 (2017).  We find the court erred in its analysis concerning other purported newly discovered evidence, and we remand to the district court on that ground. 

Case No. 18-0387:  State of Iowa v. Arron Ozzy Joseph Thompson

Filed Oct 23, 2019

View Opinion No. 18-0387

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Tabor JJ.  Opinion by Tabor, J.  (7 pages)

            Arron Thompson appeals his convictions for burglary in the third degree and burglary in the first degree.  He contends the State failed to offer sufficient evidence to support his convictions and the district court erred in not granting his motion for judgment of acquittal.  Thompson also contends the district court abused its discretion in denying his motion for new trial.  OPINION HOLDS:  Finding the State offered substantial evidence of the two burglaries and the jury verdicts were not contrary to the weight of the evidence, we affirm those convictions.

Case No. 18-0514:  Farm Credit Services of America, FLCA v. Dale W. Braaksma, Danna S. Braaksma, and Braaksma Grain Farms, Inc.

Filed Oct 23, 2019

View Opinion No. 18-0514

            Appeal from the Iowa District Court for Osceola County, Carl J. Petersen, Judge.  APPEAL DISMISSED IN PART AND AFFIRMED IN PART.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (10 pages)

            Borrowers appeal the district court’s denial of their motion to continue the lender’s action to foreclose their real estate mortgage.  They contend the district court abused its discretion in denying their motion to continue without holding an evidentiary hearing as required under Iowa Code section 654.15 (2017).  OPINION HOLDS: Since the events relevant here, the borrowers have lost any interest in one of the two properties at issue, therefore, the appeal is moot as to that note but may continue as to the remaining note.  Although the court professed not to be holding an “evidentiary hearing” on the motion to continue, it allowed the parties to address whether the borrowers filed the motion in good faith.  Both sides had a chance to comment, but the borrowers bypassed the opportunity.  The court did hold a hearing on the motion.  The borrowers filed their motion to continue on the day before the hearing on the lender’s motion for summary judgment.  That, along with the extent of their other indebtedness, led the district court to conclude the borrowers had not acted in good faith.  On our review, we see no abuse of discretion in that conclusion or the decision to deny the motion to continue.  We dismiss the appeal as to the moot note and affirm as to the other note. 

Case No. 18-0643:  Denver Sunset Nursing Home v. City of Denver, Iowa

Filed Oct 23, 2019

View Opinion No. 18-0643

            Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (13 pages)

            Denver Sunset Nursing Home appeals the district court’s order on the parties’ competing motions for summary judgment, contending the district court erred in limiting its recovery for overcharges by the City of Denver to a period within five years of its lawsuit.  OPINION HOLDS: The discovery rule applied to toll the statute of limitations until Denver Sunset learned of the overcharges.  We reverse the summary judgment ruling to the extent the court declined to apply the discovery rule to toll the statute of limitations.  We remand for further proceedings.  

Case No. 18-0754:  State of Iowa v. Carson Bruce Sinclair, Jr.

Filed Oct 23, 2019

View Opinion No. 18-0754

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Carson Sinclair Jr. appeals his conviction of eluding, challenging the sufficiency of the evidence to support the jury’s finding of guilt.  OPINION HOLDS: We affirm Sinclair’s judgment and sentence for eluding.

Case No. 18-0982:  State of Iowa v. Jeremy Walter Rose

Filed Oct 23, 2019

View Opinion No. 18-0982

            Appeal from the Iowa District Court for Cerro Gordo County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (4 pages)

            Jeremy Rose appeals his conviction of child endangerment resulting in serious injury, challenging a jury instruction alternative.  OPINION HOLDS: Because substantial evidence supports the deprivation-of-necessary-health-care alternative of child endangerment, the district court did not err in instructing the jury on that alternative.  We affirm Rose’s judgment and sentence for child endangerment resulting in serious injury.

Case No. 18-1087:  State of Iowa v. Danielle Lasley-Eakins

Filed Oct 23, 2019

View Opinion No. 18-1087

            Appeal from the Iowa District Court for Jefferson County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            Danielle Lasley-Eakins appeals from her convictions for possession of methamphetamine and marijuana.  She argues article I, section 8 of the Iowa Constitution required certain evidence be suppressed.  OPINION HOLDS: Because the district court’s ruling did not address her state constitution claim, it is not preserved for our review.

Case No. 18-1265:  Robert Clauss v. Laidlaw & Company UK Ltd.

Filed Oct 23, 2019

View Opinion No. 18-1265

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (9 pages)

            Upon discretionary review, defendant Laidlaw & Company UK LTD appeals the district court’s ruling affirming the small claims court magistrate’s ruling denying defendant’s motion to set aside the small claims judgment.  OPINION HOLDS:  We agree with the district court that Laidlaw presented no evidence of good cause to set aside the judgment.   So we affirm the small claims court’s entry of judgment for Clauss.

Case No. 18-1334:  In re the Detention of Keck

Filed Oct 23, 2019

View Opinion No. 18-1334

            Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge. AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Austin Keck appeals from the district court’s finding that he was “presently confined” for purposes of the sexually violent predator act, Iowa Code chapter 229A (2017).  OPINION HOLDS: At the time the petition for civil commitment was filed, Keck was in the custody of the department of corrections serving his five-year prison term for his conviction of enticing a minor, a sexually violent offense.  He was thus presently confined for a sexually violent offense.  Finding no error of law, we affirm.

Case No. 18-1372:  In re the Detention of James Dake

Filed Oct 23, 2019

View Opinion No. 18-1372

            Appeal from the Iowa District Court for Appanoose County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            James Dake appeals the district court order adjudicating him a sexually violent predator and civilly committing him to the custody of the Iowa Department of Human Services.  Dake argues the State failed to prove he has a mental abnormality that makes it more likely than not he will reoffend.  OPINION HOLDS: We conclude there was substantial evidence in the record upon which a rational trier of fact could conclude Dake is a sexually violent predator beyond a reasonable doubt.

Case No. 18-1458:  In re the Marriage of Jenn

Filed Oct 23, 2019

View Opinion No. 18-1458

            Appeal from the Iowa District Court for Chickasaw County, John J. Bauercamper, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL. Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (7 pages)

            Thomas and Vermona Jenn appeal and cross-appeal, respectively, from the decree dissolving their marriage.  OPINION HOLDS: The district court’s property division was equitable given the constraints of the parties’ premarital agreement.  However, the district court erred in awarding Vermona spousal support.  We strike the spousal support award from the decree.

Case No. 18-1564:  State of Iowa v. Michael James Sykes

Filed Oct 23, 2019

View Opinion No. 18-1564

            Appeal from the Iowa District Court for Scott County, Cheryl Traum and Christine Dalton, District Associate Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (8 pages)

            Michael Sykes appeals his conviction of assault causing bodily injury, contending the district court erred in its rulings on his confrontation and hearsay challenges to the admissibility of evidence.  Sykes also challenges the sufficiency of the evidence supporting his conviction.  OPINION HOLDS: We affirm Sykes’s conviction.

Case No. 18-1613:  EerieAnna Good and Carol Beal v. Iowa Department of Human Services

Filed Oct 23, 2019

View Opinion No. 18-1613

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.  Gamble, S.J., takes no part.  Opinion by Potterfield, J.  (11 pages)

            EerieAnna Good and Carol Beal appeal the district court ruling denying their application for attorney fees and costs incurred in their successful challenge of a regulation that prohibited Iowa Medicaid coverage of surgical procedures related to “sex reassignment” and “gender identity disorders.”  They brought their request for fees under the Iowa Civil Rights Act and the Iowa Equal Access to Justice Act.  Good and Beal maintain the district court erred in its interpretation of the statutes; they ask us to reverse the denial of their request and remand to the district court for the determination of the amount of reasonable attorney fees.  OPINION HOLDS: The district court did not err in its determination that neither Iowa Code section 216.16(6) nor section 625.29(1) (2018) applies.  Therefore, Good and Beal are not entitled to recover their attorney fees and costs.  We affirm.

Case No. 18-1685:  State of Iowa v. Derek Morrison

Filed Oct 23, 2019

View Opinion No. 18-1685

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  ELUDING CONVICTION VACATED, SENTENCES VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            Derek Morrison appeals his convictions and sentences after he pled guilty to various offenses.  OPINION HOLDS: Because the attempt to elude offense lacks a factual basis, we vacate this conviction and remand.  We also vacate the restitution portions of all the sentencing orders and remand.

Case No. 18-1698:  State of Iowa v. Amber Dawn Leahy

Filed Oct 23, 2019

View Opinion No. 18-1698

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (4 pages)

            Amber Leahy appeals her guilty plea to possession of methamphetamine in violation of Iowa Code section 124.401(5) (2018), an aggravated misdemeanor.  Leahy alleges her legal representation fell below constitutional norms.  Leahy contends Iowa Code section 908.10A requires automatic parole revocation effective on the date of her new offense and she was unaware of that consequence.  Leahy claims she did not enter the guilty plea intelligently and voluntarily, and is entitled to have the plea set aside and to plead anew.  OPINION HOLDS: Because the record is not developed enough to resolve Leahy’s claim of confusion about the consequences of entering the guilty plea, we preserve the matter for a potential postconviction-relief proceeding. 

Case No. 18-1861:  State of Iowa v. Antonyo Machado

Filed Oct 23, 2019

View Opinion No. 18-1861

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Bower, C.J.  Special concurrence by Doyle, J.  Dissent by Vaitheswaran, J.  (8 pages)

            Antonyo Machado appeals his plea of guilty to possession of a controlled substance, first offense, asserting the district court abused its discretion in imposing sentence rather than deferring judgment.  OPINION HOLDS: The record before us does not show Machado’s plea was conditioned upon the court granting Machado a deferred judgment.  The district court explained why it was not inclined to defer judgment, and the reasons given were not untenable or unreasonable.  The district court did not abuse its sentencing discretion.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Based upon the record, including Machado’s signing the State’s plea offer, I agree with the majority that the record does not show Machado’s plea was conditioned upon the court granting him a deferred judgment.  DISSENT ASSERTS: I believe the plea was conditioned upon the court’s concurrence and, when the district court declined to grant Machado a deferred judgment as set forth in the written plea of guilty, the court was obligated to afford Machado the opportunity to withdraw the plea.   

Case No. 18-1879:  State of Iowa v. Timothy L. McGhee, Jr.

Filed Oct 23, 2019

View Opinion No. 18-1879

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J. (4 pages)

            Timothy McGhee Jr. appeals his prison sentence on three counts of theft in the second degree and one count of theft in the fourth degree.  McGhee maintains the sentencing court considered unproven offenses when imposing sentence; he asks that we remand for resentencing.  OPINION HOLDS: Without more than the court’s statement it was considering McGhee’s “further offenses”—of which there were properly two to consider—McGhee has not met his burden of affirmatively establishing error.  We affirm.

Case No. 18-1927:  State of Iowa v. Devontez David Voigts

Filed Oct 23, 2019

View Opinion No. 18-1927

            Appeal from the Iowa District Court for Story County, Bethany Currie, Judge.  AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (5 pages)

            Devontez Voigts appeals his convictions of second-degree sexual abuse and willful injury causing bodily injury.  He argues the district court erred in overruling his challenge to the racial composition of the jury pool, which violated his constitutional right to a jury drawn from a fair cross-section of the community.  OPINION HOLDS: We agree with the district court that Voigts failed to meet his burden to establish a prima facie case of a fair cross-section violation.  However, because the parties did not have the benefit of recent refinements to Iowa law, we remand the matter to the district court to give Voigts an opportunity to develop his argument that his constitutional right to an impartial jury was violated; if the court finds a violation occurred, it shall grant Voigts a new trial. 

Case No. 18-2186:  State of Iowa v. Justin Charles Fiems

Filed Oct 23, 2019

View Opinion No. 18-2186

            Appeal from the Iowa District Court for Des Moines County, Emily S. Dean, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J. (3 pages)

            Justin Fiems challenges the sufficiency of the evidence that he knowingly acted in a manner creating a substantial risk to the child’s physical, mental, or emotional health of safety.  OPINION HOLDS: By locking his seven-year-old child in a bare basement room for ten to twelve hours a night and leaving the child without access to a bathroom, communication, or egress, the jury could find Fiems knowingly created a substantial risk of emotional, mental, and physical harm.  We therefore affirm.

Case No. 19-0190:  Dan Brewer and Linda Brewer v. Scott Plagman and Randy Deardorff, as Trustee of the Randy G. Deardorff 2009 Revocable Trust, dated July 2, 2009

Filed Oct 23, 2019

View Opinion No. 19-0190

            Appeal from the Iowa District Court for Dallas County, Bradley McCall, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (6 pages)

            The defendants appeal the district court order granting the plaintiffs a boundary by acquiescence.  OPINION HOLDS: Assuming the district court erred in admitting hearsay evidence at trial, the evidence did not prejudice the defendants.  Even disregarding this evidence, substantial evidence supports the district court’s finding that the plaintiffs established a boundary by acquiescence.    

Case No. 19-0406:  In the Interest of A.K. and T.K., Minor Children

Filed Oct 23, 2019

View Opinion No. 19-0406

            Appeal from the Iowa District Court for Buchanan County, Linnea M.N. Nichol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: On our de novo review, we conclude termination was warranted under Iowa Code section 600A.8(9) (2018), and we agree with the district court’s conclusion that termination of the father’s parental rights to the children was in the children’s best interests.

Case No. 19-1020:  In the Interest of N.B., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1020

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals the termination of his parental rights to his child, challenging the sufficiency of the evidence supporting the statutory grounds for termination and contending the juvenile court should have applied the statutory exception under Iowa Code section 232.116(3)(a) (2019) to preclude termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights.

Case No. 19-1089:  In the Interest of A.B., S.C., and M.C., Minor Children

Filed Oct 23, 2019

View Opinion No. 19-1089

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            A mother appeals the termination of her parental rights to three children, contending the State failed to prove the children could not be returned to her custody at the time of the termination hearing.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the children.

Case No. 19-1200:  In the Interest of R.H., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1200

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (7 pages)

            The mother appeals the termination of her parental rights.  She disputes some of the statutory grounds relied upon by the juvenile court, maintains termination is not in the child’s best interests, argues she should be given more time to work toward reunification, and challenges the juvenile court’s denial of her request to modify disposition to place the child with the maternal grandmother.  OPINION HOLDS: The State proved a ground for termination by clear and convincing evidence.  Termination is in the child’s best interest.  Additional time for the mother to work toward unification is not warranted.  And the mother no longer has standing to appeal the denial of the motion on placement.  We affirm.

Case No. 19-1368:  In the Interest of F.P., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1368

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            A mother appeals a juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record that the child cannot be returned to the mother, termination is in the child’s best interests to give the child stability, and custody of the child with her father does not militate against termination.  We affirm the decision of the juvenile court.

Case No. 19-1451:  In the Interest of G.T., Minor Child

Filed Oct 23, 2019

View Opinion No. 19-1451

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interests.

Case No. 17-1945:  State of Iowa v. Jacob Lawrence Hansen

Filed Oct 09, 2019

View Opinion No. 17-1945

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (4 pages)

            Jacob Hansen appeals the sentences imposed on his convictions after pleading guilty to third-degree burglary and third-degree attempted burglary.  OPINION HOLDS: Hansen waived error on his claim that considering his risk assessment score in sentencing violated his due process rights.  Risk assessment scores and sentencing recommendations are not inherently improper considerations in sentencing.  Hansen may raise his claim that counsel was ineffective in failing to object to these considerations before sentencing in a postconviction-relief proceeding.  We vacate the court’s orders for restitution and remand the matter to the district court for receipt of a final restitution plan and a determination of Hansen’s reasonable ability to pay.

Case No. 17-2103:  State of Iowa v. Knicolas Davon Lewis

Filed Oct 09, 2019

View Opinion No. 17-2103

            Appeal from the Iowa District Court for Pottawattamie County, Susan Christensen, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Doyle and Greer, JJ.  Opinion by Potterfield, P.J. (3 pages)

            Knicolas Lewis appeals from his sentence for robbery in the second degree. He maintains the sentencing court’s refusal to consider a deferred judgment as a sentencing option constituted an abuse of discretion.  OPINION HOLDS: Iowa Code section 901.5(14) (2017) gave the court discretion to enter a deferred judgment in Lewis’s case.  Because the court was unaware it could enter a deferred judgment, we vacate Lewis’s sentence and remand for resentencing. 

Case No. 18-0050:  State of Iowa v. Nathan D. Jacobson

Filed Oct 09, 2019

View Opinion No. 18-0050

            Appeal from the Iowa District Court for Floyd County, DeDra Schroeder, Judge.  CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J. (8 pages)

            The defendant appeals his sentence for child endangerment causing bodily injury following his plea of guilty.  OPINION HOLDS: The district court did not abuse its discretion in considering the risk assessment tools as contained within the presentence investigation report.  The defendant failed to preserve error on his due process and abuse-of-discretion claims, and the record is insufficient to reach these due process and abuse-of-discretion claims on direct appeal within the ineffective-assistance of counsel framework.  In addition, because sentencing courts are not required to expressly consider mitigating features of youth factors “on the record”, the district court did not abuse its discretion in sentencing.  Also, because Jacobson’s written sentencing order does not comply with the statutory procedures outlined in State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019), we vacate that part of the sentence and remand for the district court to impose restitution consistent with the Albright directives.

Case No. 18-0177:  In the Matter of the Trust of Floyd F. Kallmer

Filed Oct 09, 2019

View Opinion No. 18-0177

            Appeal from the Iowa District Court for Buena Vista County, David A. Lester, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.  Heard by May, P.J., Scott, S.J. and Gamble, S.J.  Opinion by May, P.J.  (10 pages)

            This is a dispute over a trust.  James and William claim they are the only beneficiaries.  L.K. claims he is also a beneficiary.  The district court sided with James and William.  L.K. appeals that determination.  L.K. also appeals the district court’s refusal to appoint a co-GAL for him.  James and William cross-appeal an order requiring the trust to pay L.K.’s attorney fees for this appeal. OPINION HOLDS: (1) The district court did not abuse its discretion in declining to appoint a co-GAL.  The appointment would have certainly created costs for the trust; but there was no reasonable hope the appointment would create any concrete benefit for L.K.  (2) The district court was correct in granting summary judgment and declaring James and William are the sole beneficiaries of the trust.  L.K. claimed he was a beneficiary because of equitable adoption; but L.K. admits he cannot meet Iowa’s requirements for equitable adoption.  (3) The district court erred in taxing the GAL’s appellate attorney fees prior to the appeal.  On remand, the district court shall tax them as costs to L.K., the unsuccessful party on appeal.  If the fees “cannot be collected” from L.K., the GAL may file a motion under Iowa Code section 625.5. 

Case No. 18-0241:  Jader Enterprises, L.L.C. v. Donald Buhr

Filed Oct 09, 2019

View Opinion No. 18-0241

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Jader Enterprises, L.L.C. appeals, and Donald Buhr cross-appeals, from the district court’s ruling on a breach-of-contract action.  OPINION HOLDS: Because the district court’s underlying finding of impossibility lacked evidentiary support and because there were no findings on the key elements of Jader’s claim and Buhr’s counterclaim, we cannot decide whether there is sufficient evidence to support the claim and counterclaim.  We reverse and remand for a new trial on both. 

Case No. 18-0269:  State of Iowa v. Jeremy James Davolt

Filed Oct 09, 2019

View Opinion No. 18-0269

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright and Mary Ann Brown, Judges.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (4 pages)

            Jeremy Davolt challenges the district court’s use of the sentencing recommendation of the department of corrections in the presentence investigation (PSI) report and the order to reimburse correctional fees when Davolt does not have a reasonable ability to pay the fees.  OPINION HOLDS: We find the district court did not abuse its discretion in considering the PSI report recommendation during sentencing, and we vacate the restitution order and remand for a determination of Davolt’s reasonable ability to pay.

Case No. 18-0593:  State of Iowa v. Tera M. Harris

Filed Oct 09, 2019

View Opinion No. 18-0593

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            Tera Harris appeals her sentence.  She claims the district court improperly considered a sentence recommendation within the presentence investigation report (PSI).  And she argues the district court failed to make an ability-to-pay determination before ordering her to pay court costs.  OPINION HOLDS: We find the district court did not abuse its discretion by considering the PSI’s sentencing recommendation.  And we vacate the restitution portion of the sentencing order and remand.

Case No. 18-0645:  State of Iowa v. Rayshon T.P. Rushing

Filed Oct 09, 2019

View Opinion No. 18-0645

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Robert B. Hanson, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Rayshon Rushing appeals his conviction for being a felon in possession of a firearm.  Rushing claims the district court did not have the authority to place him at a residential facility and revoke his probation for rule violations.  He also claims the court erred in ordering him to pay the law-enforcement-initiative surcharge.  OPINION HOLDS: We find the court had the authority to place Rushing in the residential facility and to revoke his probation.  We find the surcharge was not applied and Rushing’s claim is without merit.  We affirm.

Case No. 18-0811:  James Rixner and the Sioux City Human Rights Commission of the City of Sioux City v. James W. Boyd Revocable Trust and Jennifer Boyle and James W. Boyd, Individually

Filed Oct 09, 2019

View Opinion No. 18-0811

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (11 pages)

            James Rixner and the Sioux City Human Rights Commission argue the district court abused its discretion in striking a paragraph of their petition alleging housing discrimination and erred in finding the plaintiffs are not aggrieved parties.  The defendants argue the petition is time barred, the plaintiffs have failed to argue they are the real party in interest, and the plaintiffs do not have standing to pursue this action.  OPINION HOLDS: We decline to address the statute of limitations and motion to strike issues and conclude that the plaintiffs have established they are aggrieved parties under the statute and have standing to pursue their claims.  We reverse and remand to the district court for further proceedings. 

Case No. 18-0916:  State of Iowa v. Taner Vongsengeth Mann

Filed Oct 09, 2019

View Opinion No. 18-0916

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  Special Concurrence by Potterfield, P.J.  (15 pages)

            Taner Mann appeals his convictions for five offenses, challenging the district court’s conclusion he was restored to competency and able to stand trial and submit a plea.  OPINION HOLDS: On our independent review of the record, we conclude Mann failed to show he remained incompetent to stand trial or plead.  SPECIAL CONCURRENCE ASSERTS:  I believe the better course of action would be to preserve Mann’s claims of ineffective assistance of counsel for possible future postconviction relief;  I disagree with the majority’s position that the record is adequate to decide the issue of the adequacy of proof supporting the ruling on restoration of competency.

Case No. 18-0946:  Qasim Ali Baloch v. Pioneer Hi-Bred International, Inc., Shalini Sabhu, Darrin Meyers, and Starla Wasielewski

Filed Oct 09, 2019

View Opinion No. 18-0946

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (18 pages)

            Qasim Baloch appeals the district court’s denial of his motion for new trial after a jury returned a verdict in favor of Pioneer Hi-Bred International, Inc. on his claims of employment discrimination.  On appeal, Baloch challenges (I) the sufficiency of the evidence supporting the jury verdict; (II) defense references to prior lawsuits; (III) the district court’s refusal to rescind Pioneer’s peremptory strikes of two jurors; and (IV) the district court’s decision to instruct the jury on his failure to mitigate damages.  OPINION HOLDS: Upon our review, we affirm and conclude (I) substantial evidence supports the jury verdict; (II) Baloch was not prejudiced by testimony about money damages because he raised a timely objection and prevailed on his request to bar an answer to the question; (III) the district court acted appropriately in denying Baloch’s challenges to Jurors 3 and 5; and (IV) the district court did not err in denying Baloch’s motion for directed verdict and his motion for new trial with regard to the jury instruction on mitigation of damages.

Case No. 18-0956:  State of Iowa v. James M. Bailey Jr.

Filed Oct 09, 2019

View Opinion No. 18-0956

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (3 pages)

            James Bailey Jr. appeals the sentence imposed after he pled guilty to first-degree theft.  OPINION HOLDS: The sentencing recommendation in the presentence investigation report is not inherently improper for the court to consider, and Bailey failed to preserve error on any claim it was improper based on the facts of his case.  Because the record is insufficient to allow us to resolve his ineffective-assistance-of-counsel claims on direct appeal, we preserve them for postconviction-relief proceedings. 

Case No. 18-0988:  State of Iowa v. Eddy Shami Muligande

Filed Oct 09, 2019

View Opinion No. 18-0988

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  Special Concurrence by Doyle, J.  (6 pages)

            Muligande pled guilty to two charges of public intoxication, second offense.  Each violation was a serious misdemeanor under Iowa Code sections 123.46(2) and 123.91 (2018).  For each violation, the district court imposed a one-year term of confinement.  The court ran the sentences consecutively for a total indeterminate term not to exceed two years.  On appeal, Muligande argues his sentence constitutes cruel and unusual punishment.  OPINION HOLDS: Muligande’s sentence does not violate the Eighth Amendment to the U.S. Constitution or article I, section 17 of the Iowa Constitution.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Muligande’s term of two year’s imprisonment is stunning, but the majority got the law right and I am duty-bound to concur.

Case No. 18-1043:  State of Iowa v. William Gene Moyers

Filed Oct 09, 2019

View Opinion No. 18-1043

            Appeal from the Iowa District Court for Lee (North) County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (3 pages)

            William Moyers appeals the sentence imposed upon his plea of guilty, asserting the district court erred in considering the recommendation of the department of corrections included in the presentence investigation report.  OPINION HOLDS:  Because the district court did not abuse its discretion when it considered pertinent information contained in the report, and Moyer’s counsel did not provide ineffective assistance, we affirm.

Case No. 18-1112:  State of Iowa v. Kenneth Jerome Winston

Filed Oct 09, 2019

View Opinion No. 18-1112

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

            Kenneth Winston appeals the sentences imposed following his guilty pleas.  OPINION HOLDS: The court provided sufficient and adequate reasons to run Winston’s sentences consecutive to his sentence for a parole violation, satisfying the requirement of Iowa Rule of Criminal Procedure 2.23(3)(d). 

Case No. 18-1142:  State of Iowa v. Montreal Shorter

Filed Oct 09, 2019

View Opinion No. 18-1142

            Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (8 pages)

            Montreal Shorter appeals his conviction for possessing or carrying a dangerous weapon while under the influence.  OPINION HOLDS: We reject Shorter’s claims of allegedly faulty jury instructions and ineffective assistance of counsel.  We affirm his conviction. 

Case No. 18-1182:  State of Iowa v. William Sean Porter

Filed Oct 09, 2019

View Opinion No. 18-1182

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (3 pages)

            William Porter appeals his sentencing order.  He challenges the district court’s use of the risk assessment in determining his sentence.  And he claims the district court abused its discretion by not suspending his forcible-felony fine.  OPINION HOLDS: We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), and (e).

Case No. 18-1266:  State of Iowa v. Patrick Lavern Holt

Filed Oct 09, 2019

View Opinion No. 18-1266

            Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J. (12 pages)

            Patrick Holt appeals from his conviction and sentence for lascivious acts with a child.  OPINION HOLDS: We conclude the district court did not abuse its discretion in denying Holt’s motion for new trial, imposing the sentence, or instructing the jury.  We also conclude that the expert witness’s trial testimony was not improper vouching and Holt failed to show his counsel ineffective by failing to object to this testimony.  We affirm.

Case No. 18-1289:  State of Iowa v. Brooke Lynn Trimble

Filed Oct 09, 2019

View Opinion No. 18-1289

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (8 pages)

            Brooke Trimble appeals her sentences for domestic abuse assault and violation of a no-contact order.  OPINION HOLDS: Because we find the district court improperly considered allegations of attempted sexual abuse, we conclude it abused its discretion.  Accordingly, we remand for resentencing.

Case No. 18-1327:  State of Iowa v. Ambrashia Marie Chrzan

Filed Oct 09, 2019

View Opinion No. 18-1327

            Appeal from the Iowa District Court for Washington County, Myron Gookin, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J. (6 pages)

            Ambrashia Chrzan appeals her conviction for child endangerment resulting in death.  She asserts trial counsel was ineffective in failing to object to prior-bad-acts evidence and in failing to object to a jury instruction that prior statements made by the defendant could be considered as if made at trial.  OPINION HOLDS: We affirm the conviction, preserve the first ineffective-assistance claim for possible postconviction proceedings, and reject the second ineffective-assistance claim on the merits.

Case No. 18-1382:  State of Iowa v. Logan Shoemaker

Filed Oct 09, 2019

View Opinion No. 18-1382

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Greer, JJ.  Opinion by Potterfield, P.J. (11 pages)

            Logan Shoemaker challenges his convictions of attempted murder, willful injury causing serious injury, and robbery in the first degree.  He maintains there is insufficient evidence to support his convictions for attempted murder and willful injury causing serious injury because the State failed to prove he had the specific intent to cause death or serious injury, respectively.  He challenges his conviction for robbery in the first degree, claiming there was insufficient evidence to support that he intended to commit a theft—a necessary element of robbery—and maintains counsel provided ineffective assistance by failing to move for judgment of acquittal on that ground.  Similarly, he also maintains counsel provided ineffective assistance by failing to request a separate instruction defining theft for the jury.  OPINION HOLDS: Because substantial evidence supports Shoemaker’s convictions for attempted murder and willful injury causing serious injury, we affirm.  We cannot decide Shoemaker’s claims of ineffective assistance of counsel on the record before us, so we preserve them for possible postconviction-relief proceedings.

Case No. 18-1385:  State of Iowa v. Phillip Williams

Filed Oct 09, 2019

View Opinion No. 18-1385

            Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J. (5 pages)

            Phillip Williams appeals his sentence following his guilty plea to attempted burglary.  At sentencing, Williams limited his expression of remorse to what his crime “cost [him in] custody, visitation, [and] phone contacts . . .  [f]or the better part of a year.”  The sentencing court considered Williams’s lack of attention to the victim’s situation among the many factors it weighed before choosing to send him to prison.  Williams contends the sentencing court abused its discretion in considering his failure to acknowledge how his actions “affected the victim of this case.”  OPINION HOLDS: A defendant’s attitude about his crime informs what he needs to accomplish in his rehabilitation.  Nothing in this record shows the sentencing court abused its discretion by relying on an improper factor.

Case No. 18-1482:  State of Iowa v. Alto Lee Patrick Jos Thomas III

Filed Oct 09, 2019

View Opinion No. 18-1482

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (4 pages)

            Alto Thomas appeals his sentence for failing to affix a drug tax stamp.  Thomas argues the sentencing court abused its discretion by improperly relying on a risk assessment tool when it considered the presentence investigation report recommended sentence, which included an assessment of Thomas under risk assessment tools.  Thomas further argues his trial counsel was ineffective for failing to object to the sentencing court’s consideration of the recommended sentence.  OPINION HOLDS: The sentencing court did not abuse its discretion by considering the recommendation.  We preserve Thomas’s ineffective assistance of counsel claim for posconviction-relief proceedings.  We affirm.

Case No. 18-1523:  State of Iowa v. Robert Ray Mannetter

Filed Oct 09, 2019

View Opinion No. 18-1523

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (4 pages)

            Robert Mannetter appeals his conviction of third-degree sexual abuse forwarding claims of prosecutorial error and ineffective assistance of counsel.  OPINION HOLDS: We reject Mannetter’s arguments on appeal and affirm his conviction of third-degree sexual abuse. 

Case No. 18-1628:  State of Iowa v. Tiffany Marie Pennington

Filed Oct 09, 2019

View Opinion No. 18-1628

            Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judges.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (7 pages)

            A defendant appeals her sentence following her guilty plea for possession of methamphetamine.  She contends the State breached the plea agreement by giving only a halfhearted recommendation for a suspended sentence and plea counsel was ineffective for not objecting.  OPINION HOLDS:  We find the State injected “material reservations” about the defendant’s prospects for success on probation, and counsel had a duty to object.  Prejudice is presumed in these circumstances.  Accordingly, we vacate the sentence and remand for resentencing. 

Case No. 18-1640:  State of Iowa v. Ricky Timothy Williams

Filed Oct 09, 2019

View Opinion No. 18-1640

            Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Ricky Williams appeals following his guilty plea to attempting to elude, a drug tax stamp violation, interference with official acts, possession of cocaine, and possession of marijuana.  OPINION HOLDS: We affirm Williams’ plea and sentences.

Case No. 18-1647:  State of Iowa v. Ivie Thomas Popplewell III

Filed Oct 09, 2019

View Opinion No. 18-1647

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (5 pages)

            Ivie Popplewell appeals his conviction for second-degree theft.  OPINION HOLDS: Because the record before the district court at the time of the plea provides a sufficient basis for finding Popplewell committed theft under Iowa Code section 714.1(4) (2018), his counsel was not ineffective in allowing him to plead guilty. 

Case No. 18-1714:  Brianna Conrad v. Charles Conrad, Jr.

Filed Oct 09, 2019

View Opinion No. 18-1714

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Mullins, P.J., and Bower and May, JJ.  Opinion by Mullins, P.J.  (8 pages)

            Brianna Conrad appeals the dismissal of her contempt actions in domestic abuse proceedings.  OPINION HOLDS: We conclude Brianna failed to meet her evidentiary burden for contempt and therefore affirm the dismissal of her contempt actions.

Case No. 18-1748:  Karen H. Saltern v. HNI Corporation and Gallagher Bassett Services, Inc.

Filed Oct 09, 2019

View Opinion No. 18-1748

            Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (10 pages)

            An injured employee appeals the decision of the district court granting the defendant employer summary judgment on her claim the employer acted with bad faith in denying her workers’ compensation claim.  She also appeals the denial of her motion for partial summary judgment on the first element of the common-law tort of bad faith.  OPINION HOLDS:  Because we conclude the employer had a reasonable basis to deny the claim, we find the employer showed the employee could not prove the first element of her bad-faith claim, and the employer was entitled to summary judgment.  Seeing no error in the district court’s ruling, we affirm. 

Case No. 18-1825:  State of Iowa v. Jesse Robert Comly III

Filed Oct 09, 2019

View Opinion No. 18-1825

            Appeal from the Iowa District Court for Clarke County, Randy V. Hefner, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (4 pages)

            Jesse Comly appeals the sentences imposed after he pled guilty to lascivious acts with a child and dissemination and exhibition of obscene material to a minor.  OPINION HOLDS: Because the district court made no determination of Comly’s reasonable ability to pay, we vacate the court’s orders for restitution and remand the matter to the district court for receipt of a final restitution plan and a determination of Comly’s reasonable ability to pay.  We also vacate the $125 law-enforcement-initiative surcharge because it does not apply to the offenses to which Comly pled guilty, and we remand for entry of a corrected sentencing order.     

Case No. 18-1858:  State of Iowa v. Walter Louis Howard, Jr.

Filed Oct 09, 2019

View Opinion No. 18-1858

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II and John Telleen, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Walter Howard Jr. appeals his guilty-plea conviction of third or subsequent domestic abuse assault, arguing his plea was unsupported by a factual basis and counsel was therefore ineffective in allowing him to plead guilty and thereafter failing to file a motion in arrest of judgment.  He also argues counsel was ineffective in failing to object to deficiencies in the plea colloquy in relation to said guilty plea and his guilty plea to a similar crime in another case arising out of a separate occurrence.  OPINION HOLDS: Having found counsel was not ineffective as alleged, we affirm Howard’s conviction and sentences.

Case No. 18-1876:  State of Iowa v. Justo Gonzalez

Filed Oct 09, 2019

View Opinion No. 18-1876

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J. (3 pages)

            Justo Gonzales appealed his conviction, sentence, and Judgment following his guilty plea to Lascivious Acts with a child.  OPINION HOLDS: Because the recommendation of the department of correctional services is “pertinent information” for a court to consider when sentencing a defendant, the district court did not improperly consider the detailed sentencing recommendations of the presentence investigator preparer.  Also, because the sentencing order does not comply with statutory procedures outlined in State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019), we vacate that part of the sentence and remand for the district court to impose restitution consistent with the Albright directives.

Case No. 18-1900:  Cedar Valley Medical Specialists, PC v. James Wright, M.D.

Filed Oct 09, 2019

View Opinion No. 18-1900

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Greer, J.  (14 pages)

            The district court enforced a liquidated damages provision based on a violation of a covenant not to compete in a cardiothoracic surgeon’s employment contract.  On appeal, the doctor argues that the covenant not to compete is unenforceable and prejudicial to the public interest and, in any event, the liquidated damages provision constitutes a penalty and is unenforceable.  OPINION HOLDS: We affirm the district court’s ruling enforcing the liquidated damages provision because it was necessary to protect the employer, did not unreasonably restrict the employee, did not violate public policy, and did not constitute an unenforceable penalty.

Case No. 18-1923:  In the Matter of the Estate of Ellen P. Van Ginkel, Deceased.

Filed Oct 09, 2019

View Opinion No. 18-1923

             Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.   Separate writing by Doyle, J. (12 pages)

            Joseph Van Ginkel III and Elizabeth Winterhalter, two of Ellen Van Ginkel’s six children, contested Ellen’s will, asserting: (1) Ellen lacked testamentary capacity to make the November 13, 2013 fourth codicil to her will, and (2) the will was a result of the undue influence of their sibling, Jennie Kronthal.  The district court entered summary judgment dismissing their claims.  Joe and Elizabeth appeal, contending the district court abused its discretion in considering police reports and an untimely-disclosed letter.  They also assert the court erred in concluding they failed to present sufficient evidence to go to a jury on the questions of Ellen’s lack of testamentary capacity or undue influence.  OPINION HOLDS: The plaintiffs waived their motion to strike the letter by appealing before obtaining a ruling.  Finding the evidence was insufficient to go to a jury, summary judgment was proper and we affirm.  SEPARATE WRITING STATES: I concur, but write separately to address two appellate practice points.  Iowa Rule of Appellate Procedure 6.905(4)(c) was violated as there are no descriptors in the table of contents for the 94 exhibits included in the parties’ appendix, nor does the table state the page numbers where each exhibit appears.  I believe rule 6.803(2)(f) prohibits submission of any condensed transcript to the appellate courts. And it should not matter whether the condensed transcript was attached to some filing in district court or included in the appendix as some random exhibit as appears here.

Case No. 18-2011:  State of Iowa v. Jordan Dean Gustafson

Filed Oct 09, 2019

View Opinion No. 18-2011

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Jordan Gustafson appeals his conviction for stalking in violation of Iowa Code section 708.11 (2018).  He claims the evidence does not prove beyond a reasonable doubt he “purposefully engaged in a course of conduct” to fall within the stalking statute, one of the incidents did not imply a threat of harm, and the felony enhancement should not apply to his conviction.  OPINION HOLDS: Because substantial evidence supports the conviction, we affirm the district court’s ruling.

Case No. 18-2021:  Francisco De La Rosa Garcia v. State of Iowa

Filed Oct 09, 2019

View Opinion No. 18-2021

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Greer, J.  Special Concurrence by May, J.  (10 pages)

            Francisco De La Rosa Garcia challenges the district court’s dismissal of his application for postconviction relief.  Garcia filed his application over three years after his conviction became final, but argued his application fell under the exception to the statutory time-bar.  OPINION HOLDS: The Iowa Supreme Court holding in Morales Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017), is not a new ground of law.  For that reason, Garcia’s application does not fall under the exception to the statutory time-bar.  We affirm the denial of Garcia’s PCR application.  SPECIAL CONCURRENCE ASSERTS: I agree the district court properly denied relief.  I write separately to suggest the district court was also correct in concluding Morales Diaz, 896 N.W.2d at 32, created a “new rule” that should not be applied retroactively.

Case No. 18-2047:  In re the Marriage of O'Toole

Filed Oct 09, 2019

View Opinion No. 18-2047

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Sean O’Toole appeals several provisions of the decree dissolving his marriage to Laura O’Toole.  Sean contends the district court acted inequitably in failing to (1) grant the parents joint physical care of the children and (2) provide more expansive visitation.  OPINION HOLDS: We conclude the district court acted equitably in denying Sean’s request for joint physical care.  We modify the visitation portion of the decree to extend Sean’s weeknight and summer visitation.  We decline Laura’s request to have Sean pay her appellate attorney-fee obligation.

Case No. 18-2121:  State of Iowa v. Joshua Andre Black

Filed Oct 09, 2019

View Opinion No. 18-2121

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            Joshua Black appeals his conviction and sentence after pleading guilty of domestic abuse assault.  He argues the sentencing procedure was defective and counsel was ineffective.  OPINION HOLDS: We find Black did not knowingly and intentionally waive his right of allocution.  Thus, we must remand for resentencing.  We also find the record is insufficient to address his ineffective-assistance claim.  So we preserve his claims for a future postconviction-relief action.

Case No. 18-2153:  State of Iowa v. Hamilton S. Drane

Filed Oct 09, 2019

View Opinion No. 18-2153

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Robert J. Blink, Judges. AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Hamilton Drane appeals the judgment and sentence imposed upon his September 21, 2018 guilty pleas to being a felon in possession of a firearm and operating a motor vehicle while intoxicated, contending his firearm plea was not knowingly and voluntarily entered and plea counsel was ineffective in failing to file a motion in arrest of judgment.  OPINION HOLDS: The record adequately establishes Drane was a felon in possession of a firearm, as shown by the guilty-plea colloquy and the minutes of testimony.  The colloquy also supports the court’s finding that Drane entered his plea voluntarily.  Because counsel has no duty to file a meritless motion, his ineffectiveness claim fails, and we affirm his convictions.

Case No. 19-0014:  State of Iowa v. Ryan Bradley Tostenson

Filed Oct 09, 2019

View Opinion No. 19-0014

            Appeal from the Iowa District Court for Worth County, Colleen D. Weiland, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Ryan Tostenson appeals following his conviction for operating while intoxicated, challenging the denial of his motion to suppress evidence obtained during a traffic stop.  OPINION HOLDS: The officer did not have reasonable suspicion to believe that Tostenson violated Iowa Code section 321.266 (2018) by leaving the scene of an accident involving personal property because nothing in that section required him to stay at the scene of the accident.  A violation of Iowa Code section 321.288(1) cannot be justification for the stop because the accident did not occur on a public road or highway.  Finally, the record does not disclose facts on which an officer could reasonably believe Tostenson intentionally damaged a light pole.  Because State has failed to establish a lawful basis for the stop, we reverse the order denying Tostenson’s motion to suppress and remand to the district court for a new trial.

Case No. 19-0232:  State of Iowa v. Stuart Michael Vanmersbergen

Filed Oct 09, 2019

View Opinion No. 19-0232

            Appeal from the Iowa District Court for Warren County, James D. Birkenholz, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            A defendant challenges his guilty plea to operating while intoxicated, second offense, and operating without registration.  He argues his counsel was ineffective for failing to ensure that he understood the plea agreement before pleading guilty.  OPINION HOLDS: The record is inadequate to address the defendant’s claim of ineffective assistance of counsel on direct appeal and we preserve his claim for a possible postconviction-relief application. 

Case No. 19-0807:  In the Interest of K.D., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-0807

            Appeal from the Iowa District Court for Page County, Amy Zacharias, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother and father separately appeal from adjudicatory and dispositional orders of the juvenile court in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we find clear and convincing evidence supports the juvenile court’s adjudicatory order and the continuance of removal at the time of disposition.

Case No. 19-0931:  In the Interest of L.H., G.G., and A.E., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-0931

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.   AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (15 pages)

            A mother and father separately appeal the juvenile court’s removal, adjudicatory, and dispositional orders in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we affirm the juvenile court on all issues.

Case No. 19-0995:  In the Interest of M.P. and M.P., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-0995

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (12 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1041:  In the Interest of J.G. and A.G., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1041

            Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            A mother appeals the termination of her parental rights to her two children.  OPINION HOLDS: No grounds for reversal have been presented.  We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(e).

Case No. 19-1201:  In the Interest of E.B., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1201

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            A mother appeals the juvenile court order 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 and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1209:  In the Interest of N.M.-R., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1209

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

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude (1) grounds for termination exist, (2) termination is in the child’s best interest, (3) no exception should lead us to forgo termination, and (4) the State made reasonable efforts toward reunification.

Case No. 19-1211:  In the Interest of P.N., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1211

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the State proved the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(h) (2019) and termination is in the child’s best interests.  The mother failed to preserve her challenge to the reasonable efforts made to return the child to her care.  We therefore affirm. 

Case No. 19-1261:  In the Interest of B.N. and I.N., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1261

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A father appeals the juvenile court order adjudicating his two daughters as children in need of assistance.  He contends the court erred in several evidentiary rulings and the State failed to present clear and convincing evidence to prove the grounds for adjudication.  OPINION HOLDS: We find the evidentiary rulings did not prejudice the father in these proceedings.  The State presented sufficient proof of the grounds for the adjudication.  Accordingly, we affirm. 

Case No. 19-1270:  In the Interest of A.D., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1270

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The father appeals the termination of his parental rights to A.D.  OPINION HOLDS: We agree with the juvenile court that the statutory grounds for termination are satisfied, termination is in the child’s best interests, and no factor precludes termination.

Case No. 19-1322:  In the Interest of S.S., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1322

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the termination of her parental rights to her child, arguing she should be granted an extension of time to seek reunification and termination is not in the child’s best interests.  OPINION HOLDS: We agree with the juvenile court that an extension of time is not warranted and termination of the mother’s parental rights is in the child’s best interests. 

Case No. 19-1325:  In the Interest of D.V., D.V., L.V., and A.C., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1325

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (2 pages)

            A father appeals the termination of his parental rights to his four minor children, contending termination is not in the children’s best interests and he should have been allowed an additional six months to work toward reunification.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 19-1355:  In the Interest of R.L., D.S., B.S., and K.S., Minor Children

Filed Oct 09, 2019

View Opinion No. 19-1355

            Appeal from the Iowa District Court for Keokuk County, Daniel Kitchen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            A mother appeals from the termination of her parental rights to four of her children.  She challenges one statutory ground authorizing termination and whether termination serves the children’s best interests.  OPINION HOLDS: Because the mother does not challenge all statutory grounds authorizing termination, we find grounds for termination are met.  We also find termination in the children’s best interests.

Case No. 19-1359:  In the Interest of Q.N., Minor Child

Filed Oct 09, 2019

View Opinion No. 19-1359

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Parents separately appeal the termination of their parental rights to their child.  They each challenge the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court, argue termination is not in the best interests of the child due to the closeness of the parent-child bonds, maintain the court should have applied statutory exceptions to termination, and request a six-month extension to work toward reunification.  OPINION HOLDS: We find the State met its burden for termination, termination serves the child’s best interests, and applying exceptions or granting an extension is unwarranted.  We affirm termination of the parents’ parental rights.

Case No. 18-0435:  Dustin Lee Truax v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-0435

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dustin Truax appeals from the denial of his application for postconviction relief following his conviction of two counts of lascivious acts with a child.  He challenges an amendment to the trial information and urges us to find trial and appellate counsel ineffective.  OPINION HOLDS: Having considered each of Truax’s claims, we agree with the PCR court that no relief is warranted.  We affirm.

Case No. 18-0850:  Edward Franzen v. Alan W. Kruger and West Union Dental Associates

Filed Sep 25, 2019

View Opinion No. 18-0850

            Appeal from the Iowa District Court for Fayette County, John C. Bauercamper, Judge. REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (14 pages)

            A dentist appeals a post-trial ruling following a jury verdict for his patient in a malpractice action.  While performing a molar extraction the surgical bur from dentist’s handpiece used during that extraction disappeared.  X-rays revealed the presence of the bur in the patient’s lung.  The patient’s lung was partially removed in an attempt to remove the surgical bur resulting in loss in lung capacity.  The district court allowed the patient to introduce expert testimony to establish the standard of care necessary during such a procedure.  The expert relied heavily upon a survey project to formulate her opinion in determining the standard of care.  OPINION HOLDS: Because of the missing foundation to establish that the facts and data derived from those surveys were “of a type reasonably relied upon by experts” in the dentist’s field in determining the standard of care, this hearsay evidence was not admissible under Iowa Rule of Evidence  5.703.  Because it was admitted, we reverse and remand for new trial. 

Case No. 18-0974:  Jordan R. Holm v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-0974

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (3 pages)

            Jordan Holm appeals the denial of his application for postconviction relief.  OPINION HOLDS: We agree with the detailed ruling of the district court, and we affirm without further opinion.

Case No. 18-1098:  Davenport Development Group LLC and Ruhl Commercial Company, LLC doing business as NAI Ruhl Commercial Co. v. Irrevocable Trust of Donald L. Frantz, Dated October 22, 2010

Filed Sep 25, 2019

View Opinion No. 18-1098

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A developer appeals the ruling of the district court, contending a seller breached certain real estate contracts.  OPINION HOLDS: We affirm the district court’s denial of the developer’s petition.

Case No. 18-1109:  S & A 786, LLC d/b/a Downtown Pantry v. City of Des Moines Zoning Board of Adjustment

Filed Sep 25, 2019

View Opinion No. 18-1109

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Bower, J.  (17 pages)

            The Zoning Board of Adjustment of the City of Des Moines (Board) appeals after the district court sustained the writ of certiorari by which S & A 786, LLC, doing business as Downtown Pantry (Pantry), challenged the legality of the Board’s revocation of its conditional use permit (CUP).  OPINION HOLDS: Because we agree with the district court there is not substantial evidence to support the Board’s finding the Pantry’s operation had created a nuisance and the revocation of the CUP was arbitrary and capricious, we affirm.

Case No. 18-1174:  State of Iowa v. Alan Ray Cassias

Filed Sep 25, 2019

View Opinion No. 18-1174

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J. (7 pages)

            Alan Ray Cassias appeals his conviction and sentence for false imprisonment and sexual abuse in the third degree.  He argues the district court erred in admitting phone records and in stating he may be assessed appellate attorney fees unless he requests a hearing to determine his reasonable ability to pay.  OPINION HOLDS: We find the phone records were hearsay but their admission was cumulative and no prejudice resulted.  Therefore, we affirm his conviction.  However, the provision regarding appellate attorney fees is erroneous, and we vacate that provision and remand for entry of a corrected sentencing order.

Case No. 18-1186:  Olmstead Construction, Inc. v. Otter Creek Investments, LLC

Filed Sep 25, 2019

View Opinion No. 18-1186

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; CONDITIONALLY AFFIRMED ON CROSS-APPEAL; AND REMANDED.  Heard by Doyle, P.J., Blane, S.J. and Lloyd, S.J.  Opinion by Doyle, P.J.  (26 pages)

            Olmstead Construction, Inc. (Olmstead Construction) and Otter Creek Investments, LLC (Otter Creek) both appeal following resolution of their contract dispute.  They challenge the district court’s determination of various contract terms that affect the damages, attorney fees, and interest awarded on Olmstead Construction’s breach-of-contract claim.  We must also determine whether the district court erred by refusing to foreclose on a mechanic’s lien.  OPINION HOLDS: I. Olmstead Construction is not entitled to the $48,150 the district court awarded for costs of the billed subcontractor electrical work that was not a cost under the contract.  Reducing the amount of the judgment awarded to Olmstead Construction on its breach-of-contract claim by this amount, we revise the judgment to award Olmstead Construction $115,245.84.  II. Because Olmstead Construction failed to prove the actual costs associated with use of the equipment it owns, we affirm the district court’s refusal to award damages on this basis.  III. Otter Creek was not required to make final payment until Olmstead Construction provided the requested documentation of its costs.  Because Otter Creek did not default under the agreement, Olmstead Construction is not entitled to an award of its attorney fees under the contract, and we reverse the award of $47,787.73 in attorney fees.  IV. Because damages were not complete at any specified time before the trial and the amount remained in controversy until the Court issued its final judgment, prejudgment interest is inappropriate.  We affirm the district court’s refusal to award Olmstead Construction prejudgment interest.  V. We conditionally affirm the denial of Olmstead Construction’s petition to foreclose on its mechanic’s lien and remand for further proceedings as directed. 

Case No. 18-1244:  Holger Ernst Heinz Goebel v. Green Line Polymers, Inc.

Filed Sep 25, 2019

View Opinion No. 18-1244

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            Holger Goebel appeals after the district court’s denial of his motion for a new trial following a civil jury verdict in favor of Green Line Polymers, Inc. He argues (1) the court abused its discretion in (a) allowing expert opinion testimony from a non-expert witness, (b) allowing said testimony despite its alleged irrelevance, and (c) allowing Goebel to be questioned concerning specific instances of conduct that had little to no bearing on his character for truthfulness; and (2) “a new trial should be granted where cumulative errors in the record reasonably support the request for a new trial” and “contributed to the jury’s verdict contrary to the great weight of the evidence.”  OPINION HOLDS: We affirm the district court’s denial of Goebel’s motion for a new trial in its entirety. 

Case No. 18-1305:  In the Matter of J.S., Alleged to be Seriously Mentally Impaired

Filed Sep 25, 2019

View Opinion No. 18-1305

            Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            In this consolidated appeal of two involuntary civil commitment orders, J.S. contends the district court erred in (1) failing to terminate the proceedings and dismiss the applications on receipt of a physician’s report and (2) prohibiting him from possessing firearms.  OPINION HOLDS: We affirm the district court’s dismissal of the Iowa Code chapter 229 (2018) proceeding and the district court’s order referring J.S. to outpatient treatment for his chapter 125 substance-related disorder.  We reverse the district court’s imposition of the firearm prohibition in both orders and remand for entry of an order striking those prohibitions.

Case No. 18-1320:  Todd Whitman v. Casey's General Stores, Inc. and Casey's Marketing Company

Filed Sep 25, 2019

View Opinion No. 18-1320

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (11 pages)

            Todd Whitman appeals the district court’s denial of his motion for judgment notwithstanding the verdict and for a new trial following the jury verdict for Casey’s General Stores, Inc. and Casey’s Marketing Company (Casey’s).  OPINION HOLDS:  We find (1) the district court did not err in denying Whitman’s motion for judgment notwithstanding the verdict on his claim Casey’s improperly required him to take a drug test; (2) Whitman was not entitled to a new trial based on inconsistent verdicts; (3) Whitman is not entitled to a new trial based on improper jury instructions; and (4) the court did not abuse its discretion in awarding attorney fees.  We affirm the decision of the district court.

Case No. 18-1332:  In the Matter of the Guarianship and Conservatorship of Mabelle L. Raska

Filed Sep 25, 2019

View Opinion No. 18-1332

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  REVERSED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            A guardian ad litem appeals the district court’s order approving a gift from conservatorship funds.  The guardian ad litem argues the district court erred by failing to review the ward’s will to determine her testamentary intent.  The guardian ad litem further argues the gift was given without good cause to an organization that was neither a named testamentary beneficiary nor a beneficiary of lifetime donations and was not structured to maximize income-tax benefits.  OPINION HOLDS: A review of the ward’s will would have been relevant to the district court’s ultimate decision of whether good cause supported the gift but is not fatal.  On our de novo review, we find the evidence does not support a finding of good cause under Iowa Code section 633.668 (2018) to support the gift. 

Case No. 18-1405:  In the Matter of the Estate of Freeman Adams, Deceased.

Filed Sep 25, 2019

View Opinion No. 18-1405

            Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (19 pages)

            A will contestant appeals the probate court’s rulings (1) dismissing the contestant’s petition in probate seeking to open an intestate estate for the decedent, (2) sustaining the petition of a beneficiary and proponent of the decedent’s 2011 will to probate the decedent’s will, and (3) sustaining the motion for a directed verdict on a claim of undue influence.  OPINION HOLDS:  Upon our review, we find the record evidence fully supports the probate court’s conclusion that the decedent was legally competent when he executed his will in 2011.  Consequently, even assuming without deciding the court should have placed the burden of proof upon the proponents of the decedent’s will to show the decedent had testamentary capacity to execute his will when it was executed, the will’s proponents met their burden.  We discern no abuse of discretion under the facts of the case concerning an expert’s testimony regarding the decedent’s competence, and we find no error in the court’s conclusion that the contestant failed to prove the decedent’s will resulted from undue influence.  Accordingly, we affirm the probate court’s rulings dismissing the contestant’s petition, sustaining a will proponent’s directed verdict as to the claim of undue influence, and sustaining another will proponent’s petition for probate of the decedent’s will.

Case No. 18-1428:  Jacqueline Geiger and Bruce Tracy v. Peoples Trust and Savings Bank, Chris Goerdt and Country Bancorporation

Filed Sep 25, 2019

View Opinion No. 18-1428

            Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Blane and Lloyd, S.JJ.  Opinion by Blane, S.J.  (14 pages)

            Plaintiffs appeal from the district court’s grant of defendants’ motions for summary judgment on their claims against a bank and bank president for fraudulent misrepresentation and interference with contract. OPINION HOLDS:  Since evidence of the claimed agreement is not admissible under the statute of frauds in either section 535.17 or section 622.32, no reasonable jury could be convinced the alleged agreement is enforceable, and summary judgment was appropriate.

Case No. 18-1787:  State of Iowa v. Santenio Delamike Ackiss

Filed Sep 25, 2019

View Opinion No. 18-1787

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J. (7 pages)

            Santenio Ackiss appeals his convictions of child endangerment resulting in bodily injury and child endangerment.  Ackiss contends (1) the court’s findings are not supported by substantial evidence, (2) the court impermissibly imposed court costs on charges for which he was acquitted, and (3) the court failed to make a determination of his ability to pay restitution.  OPINION HOLDS: We affirm the court’s findings of guilt and convictions for child endangerment resulting in bodily injury and child endangerment.  We vacate the sentences as to apportionment of costs and restitution and remand for further proceedings.

Case No. 18-1850:  Mark Lee Jackson v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-1850

            Appeal from the Iowa District Court for Jasper County, Bradley McCall, Judge.  APPEAL DISMISSED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Authorities arrested Jackson on an alleged parole violation.  Pending his parole-violation hearing the district court ordered placement at a state prison instead of a county jail.  While held in prison, Jackson allegedly violated prison rules and was disciplined.  Jackson was later found in violation of his parole conditions and was sentenced to state prison.  Jackson filed an application for postconviction relief raising two claims: (1) the state violated his due process rights by improperly transferring him to a state prison and (2) the state imposed improper disciplinary sanctions while he was awaiting his parole-revocation hearing.  OPINION HOLDS: (1) Because Jackson is now sentenced to state prison, the district court’s ruling that he should be in county jail instead of prison is moot.  And because his claim only affected him, it did not qualify under the public-interest exception for this court to exercise its discretion to review the moot action.  (2) Because the proper vehicle to challenge a prison disciplinary sanction is a petition for writ of certiorari and because Jackson provides no valid ground to justify issuance of the writ, we deny review and dismiss the matter.

Case No. 18-1904:  Erick Skogman and Jennifer Skogman v. Rick Emerson and Paula Emerson

Filed Sep 25, 2019

View Opinion No. 18-1904

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (13 pages)

            Erick and Jennifer Skogman appeal the district court’s default judgment order entered in their favor.  They argue the district court erred by (1) dismissing Paula as a defendant for all but the Skogmans’ holdover tenant claim; (2) holding the Skogmans were not entitled to damages for some of their construction costs for renovating; and (3) refusing to award punitive damages to the Skogmans.  OPINION HOLDS: The district court erred by dismissing Paula as a defendant to the Skogmans’ intentional property damage claim, but not by dismissing her from the other claims.  The district court’s damages award is supported by substantial evidence.  The district court did not abuse its discretion when it declined to award punitive damages.  Affirmed in part, reversed in part, and remanded.

Case No. 18-1911:  Adnan Sahinovic v. State of Iowa

Filed Sep 25, 2019

View Opinion No. 18-1911

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (6 pages)

                Adnan Sahinovic appeals the summary dismissal of his postconviction-relief application.  The district court dismissed the application based on the expiration of the statute of limitations.  OPINION HOLDS: Sahinovic’s conviction was final in 2011, and the district court did not err in concluding the statute of limitations had expired and his postconviction claim was time barred.  We affirm.

Case No. 18-2067:  In re the Marriage of Dalby

Filed Sep 25, 2019

View Opinion No. 18-2067

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  Special Concurrence by Greer, J.  (10 pages)

            Douglas Dalby appeals from the decree dissolving his marriage to Julie Dalby.  Douglas maintains the division of marital assets was inequitable and asks us to modify the equalization payment due to him from the amount of $31,331.55 to $112,770.24.  He also asks for an award of appellate attorney fees.  In response, Julie maintains the district court’s division was equitable and asks that we award her appellate attorney fees.  OPINION HOLDS: The district court’s division of marital assets was inequitable; we modify the equalization payment Julie owes to Douglas to the amount of $100,932.74.  We decline to award either party appellate attorney fees.  SPECIAL CONCURRENCE ASSERTS: I agree with modifying the decree to increase the equalization payment to Douglas, but I would then reduce the equalization payment by the full amount of the basement repair.

Case No. 19-0341:  Robert Ostwinkle v. Mathy Construction Company, d/b/a River City Paving and/or A.L.M. Holding Company and Zurich American Insurance Company

Filed Sep 25, 2019

View Opinion No. 19-0341

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Mathy Construction Company and Zurich American Insurance Company appeal an order to reimburse the cost of an independent medical examination in a workers’ compensation case.  OPINION HOLDS: We find the examination was reimbursable under Iowa Code section 85.39 (2017).

Case No. 19-0690:  In the Interest of L.H., J.H., C.H., and D.H., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0690

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            The mother of four children adjudicated in need of assistance appeals from a permanency review order, claiming the juvenile court erred in ordering a six-month extension and continued removal of the children.  OPINION HOLDS: Upon our de novo review, we affirm the permanency order entered by the juvenile court.

Case No. 19-0741:  In the Interest of D.P., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0741

            Appeal from the Iowa District Court for Audubon County, Amy L. Zacharias, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  Special concurrence by Potterfield, P.J.  (8 pages)

            A mother and father each appeal the juvenile court order terminating their parental rights.  OPINION HOLDS: As to the mother, we find there is clear and convincing evidence in the record to support termination of her parental rights, the State made reasonable efforts to reunite her with the child, and termination is in the child’s best interests.  For the father, we find there is sufficient evidence to warrant termination of his parental rights and the juvenile court properly declined to apply any exceptions to termination.  We affirm the decision of the juvenile court. SPECIAL CONCURRENCE ASSERTS: I agree with the majority; in this case, the incarcerated father did not explicitly raise a best-interests claim.

Case No. 19-0905:  In the Interest of N.H., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0905

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A father appeals the termination of his parental rights to one child.  OPINION HOLDS: Because the father has borderline intellectual functioning and cannot demonstrate an ability to care for the child, who has significant medical and cognitive impairments, the State showed she cannot be returned to the father at the present time, satisfying the statutory grounds.  It is in the child’s best interests to terminate the father’s parental rights and free her for adoption.  There is insufficient evidence of a bond to show terminating the relationship would be detrimental to her.  Finally, there is no evidence warranting an extension of time for the father.  We affirm. 

Case No. 19-0914:  In the Interest of D.M., T.G., T.G., L.G., and T.G., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0914

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J.  (12 pages)

            A mother and father appeal the termination of their parental rights to five minor children.  OPINION HOLDS:  We conclude the State established grounds for termination, termination was in the children’s best interests, no exceptions applied to prevent termination, and the Iowa Department of Human Services made reasonable efforts to reunite the parents with the children.  We affirm.

Case No. 19-0944:  In the Interest of E.S., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-0944

            Appeal from the Iowa District Court for Clarke County, Monty Franklin, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (5 pages)

            A father appeals the termination of his parental rights.  The juvenile court found he failed to maintain significant and meaningful contact with his seven-year-old son.  OPINION HOLDS: Our de novo review reveals inadequate proof that the father failed to maintain significant and meaningful contact with the child.  The father attended almost all the offered visitations, only missing for serious medical events.  During visits he did more than just show up: he engaged with his son, provided meals, clothing, and gifts, and had positive conversations.  He also completed substance-abuse treatment, showing a genuine effort to complete the responsibilities prescribed in the case permanency plan.  The State failed to prove the ground for termination, so we reverse the order and remand for further proceedings. 

Case No. 19-0962:  In the Interest of G.P. and R.P., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-0962

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (3 pages)

            A father appeals the termination of his parental rights under Iowa Code section 232.116(1)(e) and (f) (2019).  OPINION HOLDS:  We affirm the termination of the father’s parental rights. 

Case No. 19-1034:  In the Interest of L.L., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1034

            Appeal from the Iowa District Court for Delaware County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: The mother waived her due process claim by not citing any authority in support of her argument.  We find the State engaged in reasonable efforts to reunite the mother with the child.  The juvenile court properly denied the mother’s requests to place the child in a guardianship and for an extension of time.  We affirm the decision of the juvenile court.

Case No. 19-1053:  In the Interest of D.D., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1053

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find the juvenile court properly denied the mother’s request to extend the case for an additional six months.  We also find termination of the mother’s parental rights is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1116:  In the Interest of L.R., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1116

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The father appeals the termination of his parental rights to his nine-year-old son.  The juvenile court terminated the father’s rights pursuant to Iowa Code section 232.116(1)(d), (e), and (f) (2018).  The father challenges the statutory grounds for termination, maintains the juvenile court should have applied a permissive factor to avoid termination, and argues an extension of time to work toward reunification is in the child’s best interests.  OPINION HOLDS: For all the reasons listed herein, we affirm the termination of the father’s parental rights.

Case No. 19-1117:  In the Interest of A.S., K.B., and A.B., Minor Childen

Filed Sep 25, 2019

View Opinion No. 19-1117

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            Parents separately appeal the termination of their parental rights to their respective children.  Both parents challenge the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court and argue termination is not in the children’s best interests due to the closeness of the parent-child bonds.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-1130:  In the Interest of D.S. and X.L., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1130

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: Statutory grounds for termination of parental rights exist as to each parent, an extension is unwarranted, and termination is in the children’s best interests.  We affirm on both appeals.

Case No. 19-1158:  In the Interest of F.K. and F.K., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1158

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            A mother appeals the juvenile court order terminating her parental rights to her two minor children, F.K. and F.K.  The juvenile court terminated her parental rights under Iowa Code section 232.116(1)(e), (h), and (k) (2019).  The mother disputes aspects of each of the statutory grounds, and argues termination is not in the children’s best interest and she should have been given a six-month extension to work toward reunification.  OPINION HOLDS: The State met its burden to terminate the mother’s parental rights under Iowa Code section 232.116(1)(h).  Termination is in the children’s best interest.  A six-month extension is not warranted. 

Case No. 19-1208:  In the Interest of J.B., L.B., C.B., and C.B., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1208

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of the father’s parental rights.  An extension of time would not be in the children’s best interests.  The State engaged in reasonable efforts to reunite the father with the children.  Termination of the father’s parental rights is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1215:  In the Interest of O.O., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1215

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Clear and convincing evidence shows the mother failed to maintain significant and meaningful contact with the child in the six months leading up to termination or make reasonable efforts to resume care for the child despite being given the opportunity to do so.  We therefore affirm the termination of the mother’s parental rights under Iowa Code section 232.116(1)(e) (2019).  We find termination is in the child’s best interests for the same reasons, and we decline to grant the mother additional time to reunite with the child.

Case No. 19-1246:  In the Interest of J.N., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1246

            Appeal from the Iowa District court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, we agree with the juvenile court that the State established by clear and convincing evidence the ground for termination set forth in Iowa Code section 232.116(1)(h) (2019).  The record evidences that termination of the mother’s parental rights is in the child’s bests interests, and no facts in the record show a six-month delay would lead to safe reunification.  So we affirm the juvenile court’s ruling terminating the mother’s parental rights.

Case No. 19-1265:  In the Interest of C.H., Minor Child

Filed Sep 25, 2019

View Opinion No. 19-1265

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the order terminating her parental rights, contesting two of the three grounds the juvenile court found warranted termination.  OPINION HOLDS: The mother does not dispute the juvenile court’s ruling that termination was supported under Iowa Code section 232.116(1)(l) (2019), and we affirm on that ground.  

Case No. 19-1271:  In the Interest of A.K. and O.S., Minor Children

Filed Sep 25, 2019

View Opinion No. 19-1271

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Gary and Ashley separately appeal from the termination of their parental rights to two children.  Gary contends the State did not prove the grounds to terminate.  He also argues the State failed to make reasonable efforts to reunite him with the children by providing adequate visitation.  Ashley does not challenge the statutory grounds for termination.  Instead, she argues the State did not make reasonable efforts in considering her sister as a potential guardian and for the children’s placement.  She also argues the court was not acting in the children’s best interests in appointing Department of Human Services (DHS) as the custodian and guardian and severing her parental relationship despite her close relationship with the children.  OPINION HOLDS:  We conclude termination of the parents’ rights is in the children’s best interests.  As is guardianship with the DHS for the purpose of permanency through adoption.  We further find the DHS acted reasonably in the efforts it made to support the parents’ attempts to reunify with the children.  We affirm as to both appeals.

Case No. 18-0662:  Puryear Law P.C. and Eric D. Puryear v. Dirk J. Fisher and Jessica Harbaugh

Filed Sep 11, 2019

View Opinion No. 18-0662

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Doyle, P.J., May, J., and Mahan, S.J.  Tabor, J., takes no part.  Opinion by Mahan, S.J.  (12 pages)

            Puryear Law P.C. and Eric Puryear appeal the district court’s dismissal of a defamation action against Dirk Fishback and Jessica Harbaugh, contending the district court erred in granting a motion for directed verdict.  OPINION HOLDS: Upon our review, we affirm.  

Case No. 18-0841:  Vernon L. Hilkemann and Mary E. Hilkemann v. City of Carter Lake City Council, City of Carter Lake Board of Adjustment, City of Carter Lake Planning Board, and Lakeside Auto Recyclers Inc.

Filed Sep 11, 2019

View Opinion No. 18-0841

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Vernon and Mary Hilkemann appeal a district court ruling relating to zoning decisions by the City of Carter Lake City Council, Planning Board, and Board of Adjustment.  The Hilkemanns contest the district court’s finding the relation-back doctrine did not apply and the court’s authority to remand annulled variances to the board of adjustment for further proceedings.  OPINION HOLDS: We find the relation-back doctrine does not apply here and the court has the authority to order a remand for further proceedings. 

Case No. 18-0852:  Atiba Spellman v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-0852

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Atiba Spellman appeals the order dismissing his action for postconviction relief (PCR) as a discovery sanction.  OPINION HOLDS:  The reasoning supporting dismissal of Spellman’s PCR action is flawed.  First, the PCR court overlooked that Spellman amended his PCR application to provide the desired specificity for his PCR claims before the hearing on discovery sanctions.  Second, we disagree that Spellman’s failure to provide discovery answers impeded the State’s ability to move for summary judgment.  Third, Spellman did provide interrogatory answers within the deadline set forth in the court’s order compelling him to answer, and it is more likely that his failure to provide more specific answers or documents results from inability rather than willful refusal.  Finally, the circumstances here are less egregious than in cases where the courts upheld dismissal as a discovery sanction.  Given these circumstances, we find the PCR court abused its discretion in dismissing Spellman’s PCR application as a discovery sanction.  For these reasons, we reverse and remand for further proceedings. 

Case No. 18-0854:  In re the Detention of Andrew Henry Martin

Filed Sep 11, 2019

View Opinion No. 18-0854

             Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Andrew Martin appeals a district court order adjudicating him a sexually violent predator and committing him to the custody of the department of human services for control.  OPINION HOLDS: Because the district court’s findings are supported by substantial evidence, we affirm the order adjudicating Martin a sexually violent offender and ordering his civil commitment.

Case No. 18-0967:  Richard Joseph Ehler v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-0967

            Appeal from the Iowa District Court for Warren County, Thomas P. Murphy, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (21 pages)

            Richard Ehler appeals the district court’s denial of his application for postconviction relief, arguing counsel was ineffective for failing to adequately research the viability of his speedy-trial claim.  OPINION HOLDS: Plea counsel breached a duty by failing to understand the applicable speedy-trial standard.  And because counsel’s failure influenced Ehler’s decision to plead guilty, it resulted in prejudice to Ehler.  We remand the case to the district court with instructions to grant Ehler’s PCR application, vacate the guilty plea, and dismiss the trial information.

Case No. 18-1097:  State of Iowa v. Komut Mai

Filed Sep 11, 2019

View Opinion No. 18-1097

            Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Komut Mai appeals from judgment and sentence following the denial of his motion to suppress and trial on the minutes of testimony.  Mai maintains the officer did not have reasonable suspicion to stop the vehicle in which he was a passenger.  OPINION HOLDS: Because we find the officer did not have a reasonable, articulable suspicion to stop the vehicle, we reverse the denial of Mai’s motion to suppress and remand for further proceedings.

Case No. 18-1198:  Melissa Sadler, Individually, and as Parent and Next Friend of S.S., A.S., Z.S., and I.S., Minor Children v. Polly Primus and Pathways Behavioral Services, Inc.

Filed Sep 11, 2019

View Opinion No. 18-1198

            Appeal from the Iowa District Court for Butler County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J, and Vogel, S.J.  Opinion by Mullins, J.  (8 pages)

            Melissa Sadler appeals an adverse summary judgment ruling and dismissal of her civil suit.  She argues the court (1) improperly failed to allow her fifteen days to respond to the defendants’ motion for summary judgment, (2) lacked jurisdiction to entertain the motion when an appeal was pending, (3) abused its discretion in denying her motion to extend expert-witness deadlines, and (4) erred by dismissing the lawsuit when an appeal was pending concerning the propriety of a motion to dismiss granted in favor of other defendants.  OPINION HOLDS: We affirm the outcome of the district court proceedings.

Case No. 18-1268:  State of Iowa v. Christopher James Thomas

Filed Sep 11, 2019

View Opinion No. 18-1268

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Christopher Thomas contends insufficient evidence supports his conviction for violating the sex offender registry requirements.  OPINION HOLDS: Sufficient evidence supports the conviction.  We affirm.

Case No. 18-1286:  State of Iowa v. Martin Ray Hiatt

Filed Sep 11, 2019

View Opinion No. 18-1286

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (3 pages)

            Martin Hiatt appeals from the district court’s denial of his motion to quash.  Hiatt claimed the Iowa Department of Corrections (IDOC) was seizing funds from his prison account that came from outside sources without providing Hiatt a predeprivation hearing before doing so.  OPINION HOLDS: Because we are unable to ascertain on the record before us whether Hiatt was given notice or the opportunity to object before IDOC began collecting restitution from his prison funds from outside sources, we reverse the district court’s denial and remand for further proceedings. 

Case No. 18-1306:  Dean Thorson v. Thomas Hansen and Jeanett Hansen

Filed Sep 11, 2019

View Opinion No. 18-1306

            Appeal from the Iowa District Court for Winneshiek County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (11 pages)

            Thomas and Jeanett Hansen appeal a trial court order finding in favor of Dean Thorson in a conversion and breach-of-contract action relating to a hay crop and farm-rental agreement.  The Hansens claim the trial court erred in denying their motion for new trial because Thorson made knowing material misrepresentations during trial that prejudiced the Hansens and the court erred in law and made a mistake of fact as to the date of conversion.  OPINION HOLDS: We find the court did not abuse its discretion in denying the motion for new trial and did not make an error of law or mistake of fact.  We affirm.

Case No. 18-1370:  Eddie Adams v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1370

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (7 pages)

            Eddie Adams appeals from an order denying him postconviction relief.  OPINION HOLDS: Adams has not shown his trial counsel was ineffective for failing to have his DNA expert independently test the evidence when he never claimed additional testing would have changed the outcome of trial and the record does not support his claim of spoliation.  Nor has Adams shown his PCR counsel was ineffective by failing to move for an expanded ruling on the legality of an Allen charge when the record does not show the court gave the jury an Allen instruction. 

Case No. 18-1499:  In the Matter of the Guardianship and Conservatorship of Sylvia Chott

Filed Sep 11, 2019

View Opinion No. 18-1499

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Katherine Myer appeals the district court ruling finding she violated her obligations to her mother Sylvia Chott as her mother’s power of attorney by withdrawing funds from the mother’s bank account and ordering her to return the money and pay attorney fees and court costs.  Katherine argues the district court erred by evaluating her conduct under Iowa Code chapter 633B (2017), by finding she had not met her burden to prove she acted in good faith and Sylvia had acted freely, voluntarily, and intelligently when she transferred the money to Katherine, and by awarding Sylvia attorney fees.  Additionally, she requests appellate attorney fees.  OPINION HOLDS: The district court correctly evaluated Katherine’s conduct under chapter 633B.  The district court correctly determined Katherine had not met her burden of proof.  We affirm the award of trial attorney fees and award appellate attorney fees to Sylvia.  We affirm.

Case No. 18-1554:  Cindy Christine Hebron v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1554

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Cindy Hebron seeks reversal of the district court’s ruling denying her application for postconviction relief.  Hebron claims her due process rights have been violated, her right to a speedy trial was violated, and she received ineffective assistance of counsel.  OPINION HOLDS: We find Hebron has failed to prove any due process violation or ineffective assistance of counsel, and she waived her right to a speedy trial.  We affirm the district court’s denial of Hebron’s application for postconviction relief.

Case No. 18-1586:  Carl Julius Bennett v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1586

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (11 pages)

            Carl Bennett appeals the denial of his application for postconviction relief, arguing he is innocent and that his trial counsel was ineffective.  OPINION HOLDS: After reviewing the record, we agree with the district court that there is overwhelming evidence of Bennett’s guilt and that he did not prove his attorney was ineffective.  We affirm.

Case No. 18-1605:  In re the Marriage of Griffith

Filed Sep 11, 2019

View Opinion No. 18-1605

            Appeal from the Iowa District Court for Emmet County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Mullins, P.J., and Bower and May, JJ.  Opinion by Bower, J.  (5 pages)

            Scott Griffith appeals from the decree dissolving his marriage to Joyce Griffith.  Scott argues the district court erred in failing to order continued conciliation efforts, in finding Joyce was capable of establishing the breakdown of the marriage, and in refusing to grant Scott’s motion to compel discovery of mental health records.  OPINION HOLDS: The trial court did not abuse its discretion in not requiring continued conciliation efforts or in denying the motion to compel discovery of Joyce’s medical records.  Joyce has established the requisite breakdown of the marital relationship, and we affirm.

Case No. 18-1612:  Benaiah Mablin v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1612

            Appeal from the Iowa District Court for Clinton County, John D. Telleen, Judge.  REVERSED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (25 pages)

            The State seeks reversal of the district court’s ruling granting postconviction relief (PCR) to Benaiah Mablin on the ground the court failed to properly analyze the ineffective-assistance-of-counsel claims.  OPINION HOLDS: Because we conclude Mablin has failed to prove the requisite prejudice, we reverse the district court and remand for dismissal of the PCR application. 

Case No. 18-1625:  Daniel Louis Hicks v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1625

            Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Daniel Hicks appeals the denial of his application for postconviction relief, asserting trial and appellate counsel were ineffective in failing to consult or retain a child-sexual-abuse expert, permitting witnesses to vouch for the child’s credibility, and failing to challenge prejudicial testimony and out-of-court statements.  OPINION HOLDS: Because Hicks failed prove that but for trial and appellate counsel’s asserted deficiencies in performance there is a reasonable probability that the result of the proceeding would have been different, we affirm the denial of his application for postconviction relief. 

Case No. 18-1646:  In re the Marriage of Fisher

Filed Sep 11, 2019

View Opinion No. 18-1646

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Gamble, S.J., takes no part.  Opinion by Potterfield, P.J.  (5 pages)

            Christopher Fisher appeals the district court order dismissing his contempt application.  He argues the district court erred by finding he had not met his burden to prove his former spouse Karen Fisher had willfully violated the prior custody order concerning their minor child by sending the child on a trip over Christopher’s objection.  OPINION HOLDS: The district court did not abuse its discretion.  We affirm.

Case No. 18-1653:  City of Davenport v. Lynn Washburn-Livingston

Filed Sep 11, 2019

View Opinion No. 18-1653

            Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (6 pages)

            Lynn Washburn-Livingston  seeks reversal of the district court’s finding the Davenport Civil Service Commission did not have jurisdiction to grant her continued employment with the Davenport Fire Department.  OPINION HOLDS: We find her prior Illinois status did not transfer to Iowa civil service status and affirm the district court.

Case No. 18-1662:  State of Iowa v. Kamie Jo Schiebout

Filed Sep 11, 2019

View Opinion No. 18-1662

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott, Judge.  AFFIRMED IN PART, SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J. (8 pages)

            Kamie Jo Schiebout appeals from her conviction and sentence for felony possession of methamphetamine as an habitual offender.  She challenges the district court’s suppression ruling and her sentence.  OPINION HOLDS: (1) The seizure of Schiebout’s purse was a permissible seizure incident to arrest.  So the district court was correct in denying Schiebout’s motion to suppress.  (2) Federal drug convictions do not count as prior convictions for purposes of Iowa Code section 124.401(5) (2017).  Because Schiebout has only one relevant prior conviction, her current offense should be treated as an aggravated misdemeanor, not a felony.  We vacate Schiebout’s sentence and remand for resentencing.

Case No. 18-1805:  Jaramya William Campbell v. State of Iowa

Filed Sep 11, 2019

View Opinion No. 18-1805

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (10 pages)

            Jaramya Campbell appeals the denial of his application for postconviction relief (PCR).  OPINION HOLDS: Because we agree that the underlying sentence for one of Campbell’s criminal convictions illegally ordered that he serve a 45-day term in jail rather than in the custody of the Iowa Department of Corrections, we reverse the PCR court’s ruling denying his application for PCR with respect to that sentence, and we remand with instructions.  We affirm the PCR court’s ruling in all other respects.

Case No. 18-1860:  In re the Marriage of Olson

Filed Sep 11, 2019

View Opinion No. 18-1860

            Appeal from the Iowa District Court for Marion County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (6 pages)

            Michael Olson appeals the district court order requiring him to pay temporary child support, spousal support, and attorney fees to Erika Olson.  OPINION HOLDS: We find the district court order for support was equitable and the court did not abuse its discretion in ordering temporary attorney fees.  We award appellate attorney fees to Erika.

Case No. 18-1877:  State of Iowa v. Dairramey Moore

Filed Sep 11, 2019

View Opinion No. 18-1877

            Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea and Mary E. Howes, Judges.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (12 pages)

            Dairramey Moore appeals his convictions of intimidation with a dangerous weapon with intent and reckless use of a firearm.  Moore argues (1) the evidence was insufficient to support his convictions; (2) the court failed to exercise its discretion in imposing sentence; and (3) the district court improperly ordered him to pay attorney fees, court costs, and correctional fees as restitution without first determining his reasonable ability to pay the same.  OPINION HOLDS: We affirm Moore’s convictions and the sentence imposed on count one.  We vacate the restitution provisions of the sentencing order and remand the matter to the district court for receipt of a final restitution plan and a determination of Moore’s reasonable ability to pay.

Case No. 18-1888:  State of Iowa v. Joseph W. White

Filed Sep 11, 2019

View Opinion No. 18-1888

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Joseph White appeals the denial of his motion to suppress the evidence obtained following the warrantless stop of his vehicle.  OPINION HOLDS: Because the trooper had reasonable suspicion of an inoperative headlamp to stop the vehicle, we affirm.

Case No. 18-1929:  In re the Marriage of Tribolet

Filed Sep 11, 2019

View Opinion No. 18-1929

            Appeal from the Iowa District Court for Taylor County, Patrick W. Greenwood, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (14 pages)

            A former wife, Lisa, appeals the district court’s grant of the former husband, Jonathan’s, petition to modify the custody provisions of their dissolution decree.  The district court order split care, giving Lisa physical care of their older son and Jonathan physical care of the younger son.  Lisa challenges this arrangement and argues both children would do better in her physical care.  OPINION HOLDS:  The court’s modification is in the best interests of the children.  There are strong and compelling reasons here to split custody between both parents.  We affirm the physical care order but remand for the district court to enter an order on appellate attorney fees for Jonathan. 

Case No. 18-1955:  Jason Batterman v. Amanda Biggs

Filed Sep 11, 2019

View Opinion No. 18-1955

            Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Jason Batterman appeals from the district court’s refusal to modify the physical-care placement of his child.  He also challenges the district court’s award of attorney fees to the child’s mother.  OPINION HOLDS: Jason did not demonstrate he could provide the child with superior care.  Accordingly, the district court properly refused to modify the child’s physical-care placement.

Case No. 18-1999:  State of Iowa v. Brenna Folkers

Filed Sep 11, 2019

View Opinion No. 18-1999

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

           

            Brenna Folkers challenges the sufficiency of the evidence supporting her conviction of child endangerment following a trial to the bench.  She maintains the State did not establish she knowingly acted in a manner that created a substantial risk to her son’s physical, mental, or emotional health or safety.  OPINION HOLDS: Because keeping marijuana and hash oil in the home where a toddler can access it creates a substantial risk to the child’s safety, substantial evidence supports Folkers’s conviction.  We affirm. 

Case No. 18-2000:  State of Iowa v. Eugene Harris

Filed Sep 11, 2019

View Opinion No. 18-2000

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

            Eugene Harris appeals his conviction for neglect of a dependent person.  OPINION HOLDS: When viewed in the light most favorable to the State, substantial evidence supports a finding that Harris was a person having custody of a dependent person.  Because substantial evidence supports Harris’s conviction, we affirm.

Case No. 18-2017:  Michael Hecht v. Highline Construction, Inc. and Western National Insurance Company

Filed Sep 11, 2019

View Opinion No. 18-2017

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Michael Hecht appeals from the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s denial of permanency and penalty benefits.  Hecht maintains the commissioner erred when he granted the defendants’ untimely application to submit additional evidence.  He argues his substantial rights were prejudiced when the commissioner then relied on the late-submitted evidence to modify the deputy commissioner’s ruling of 30% industrial disability and the assessment of penalty benefits to an award of no permanency or penalty benefits.  OPINION HOLDS: We agree with the district court; the commissioner did not err in determining the twenty-day deadline of Iowa Administrative Code rule 876-4.28 could be extended upon a showing of good cause and did not abuse his discretion in finding Highline established good cause for the delay in these circumstances.  We affirm.

Case No. 18-2154:  In re the Marriage of Saluri

Filed Sep 11, 2019

View Opinion No. 18-2154

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            James Saluri appeals the district court’s ruling on a postsecondary education subsidy.  OPINION HOLDS: We find the district court correctly found good cause for the subsidy and properly applied the statutory three-step process to calculate James’s share of the subsidy.  The court did not abuse its discretion in awarding Sandra Saluri attorney fees.  We affirm.

Case No. 18-2182:  A-Tec Recycling, Inc. and EMCASCO Insurance Company v. Charles E. Wood

Filed Sep 11, 2019

View Opinion No. 18-2182

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            An employer and its workers’ compensation carrier appeal from the district court ruling on judicial review affirming the agency’s award of permanent partial disability benefits to an employee.  OPINION HOLDS: Because substantial evidence supports the agency’s determination that a work injury caused a permanent partial disability to the employee, we affirm.

Case No. 18-2220:  In re Marriage of Palmer

Filed Sep 11, 2019

View Opinion No. 18-2220

            Appeal from the Iowa District Court for Mills County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (4 pages)

            Steve Palmer appeals from a decree dissolving his marriage to Debra Palmer.  He claims the district court did not award him enough spousal support.  OPINION HOLDS: We afford the district court considerable latitude in determining spousal support.  Here, the district court’s award fits well with Steve and Debra’s relative needs and resources.  The district court did not fail to do equity.  We affirm.  And we assess costs of this appeal to Steve.

Case No. 19-0007:  In the Matter of the Guardianship and Conservatorship of Robert Hites, Jr.

Filed Sep 11, 2019

View Opinion No. 19-0007

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            A ward appeals from the district court’s appointment of his parents as co-guardians and co-conservators.  He argues there was insufficient evidence to establish the need for a guardianship or conservatorship.  In the alternative, he argues the court should have established a limited guardianship.  OPINION HOLDS: The ward’s untreated acute paranoid schizophrenia, refusal to acknowledge his mental illness, and refusal to take medication show his decision-making is impaired enough to warrant guardianship and conservatorship.  A limited guardianship is not appropriate here because of the severity of the illness and the ward’s lack of rational engagement with his mental-health condition.  We find no error in the court’s order appointing the parents as guardians and conservators. 

Case No. 19-0094:  Gary Dickey Jr. v. Iowa Ethics and Campaign Disclosure Board

Filed Sep 11, 2019

View Opinion No. 19-0094

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

            Gary Dickey Jr. appeals from the dismissal of his petition for judicial review by which he sought to challenge a decision of the Iowa Ethics and Campaign Disclosure Board.  OPINION HOLDS: Because we agree with the district court that Dickey has not demonstrated “a specific and injurious effect” such that he may obtain judicial review of the Board’s ruling under Iowa Code section 17A.19(1), we affirm.

Case No. 19-0238:  Joshua Paul Thomsen v. Makinzie Rose Nelson

Filed Sep 11, 2019

View Opinion No. 19-0238

            Appeal from the Iowa District Court for Crawford County, Tod Deck, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (10 pages)

            Joshua Thomsen appeals and MaKinzie Nelson cross-appeals the district court’s custody decree.  OPINION HOLDS: We find the district court properly determined joint physical care was inappropriate.  We also find the district court properly awarded physical care to MaKinzie.  While we generally agree with the district court’s visitation schedule, we modify the holiday schedule to permit the child to share holidays with Joshua’s girlfriend’s children.  Finally, we decline to grant appellate attorney fees to either party.

Case No. 19-0268:  In the Matter of the Guardianship and Conservatorship of Sylvia M. Olson

Filed Sep 11, 2019

View Opinion No. 19-0268

            Appeal from the Iowa District Court for Woodbury County, Zachary Hindman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (8 pages)

            Richard Magnuson appeals the ruling of the district court approving the guardian and conservator’s annual report and application for authorization to expend conservatorship funds for caregivers.  OPINION HOLDS: Upon our de novo review of the record, we dismiss two of Magnuson’s three claims on appeal as moot.  And we find Magnuson’s last claim that the care provided to the ward was “contrary to [the ward’s] prior orders” to lack merit, and we agree with the district court that the guardian and conservator did not breach her fiduciary duties.  Thus, we affirm the court’s rulings in all respects and dismiss the two claims as moot.

Case No. 19-0310:  Steven J. Bell, Jr. v. 3E, a/k/a Electrical & Engineering Co., and Travelers Indemnity Co. of CT.

Filed Sep 11, 2019

View Opinion No. 19-0310

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (7 pages)

            3E, also known as Electrical & Engineering Company, and Travelers Indemnity Company appeal the district court’s decision denying their motion to dismiss Steven Bell Jr.’s petition for judicial review on the ground Bell failed to timely serve notice of the petition.  OPINION HOLDS:  We determine the district court erred by denying the motion to dismiss, as Bell did not substantially comply with the requirements for service of notice found in Iowa Code section 17A.19(2) (2018).  We reverse the decision of the district court and remand for an order dismissing the petition for judicial review.

Case No. 19-0478:  In re the Marriage of Dore

Filed Sep 11, 2019

View Opinion No. 19-0478

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (9 pages)

            A father appeals from the denial of his petition for modification of a dissolution-of-marriage decree.  OPINION HOLDS: We affirm the denial of the father’s modification petition. 

Case No. 19-0846:  In the Interest of A.S. and M.S., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0846

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (9 pages)

            A mother appeals the termination of her parental rights to two of her minor children.  OPINION HOLDS: The State has proved grounds for termination by clear and convincing evidence, termination is in the children’s best interests, and no statutory exception exists to prevent termination.  We affirm.

Case No. 19-0870:  In the Interest of B.P., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-0870

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

            A father appeals the termination of his parental rights to his minor child.  OPINION HOLDS: The father does not challenge the statutory grounds for termination under Iowa Code section 232.116(1)(b) (2018), which does not require reasonable efforts toward reunification.  Regardless, the father failed to demand additional efforts and waived the issue on appeal.  We affirm the juvenile court’s termination of the father’s parental rights.

Case No. 19-0901:  In the Interest of N.R., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-0901

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

            A mother appeals the juvenile court order terminating her parental rights.  She claims the child could have been returned to her care at the time of the hearing and, alternatively, requests an additional six months to reunite with the child.  OPINION HOLDS: We affirm.

Case No. 19-0941:  In the Interest of R.M., E.M., K.M., C.M., E.M., and L.M., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0941

            Appeal from the Iowa District Court for Cass County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: I. Clear and convincing evidence supports a finding that returning the children to the mother’s care would expose them to the type of harm that would lead to a child-in-need-of-assistance adjudication, and we affirm the termination of the mother’s parental rights under section 232.116(1)(f) and (h) (2018).  II. The State made reasonable efforts to return the children to the mother’s care.  III. Termination is in the children’s best interests.  IV. We decline to apply one of the exceptions to the termination statute to avoid termination and affirm the termination of the mother’s parental rights.

Case No. 19-0990:  In the Interest of C.M. and D.M., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-0990

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (6 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1003:  In the Interest of W.H. and G.H., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1003

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  Special concurrence by Tabor, P.J.  (9 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and was in the children’s best interests.  We affirm.  SPECIAL CONCURRENCE ASSERTS: Although I agree the evidence supports termination, I write separately to emphasize the role courts play in overseeing the State’s reasonable efforts to reunify families.  Scholars have persuasively argued such efforts require culturally competent services.  African-American children are disproportionately overrepresented in child welfare and foster care systems, and courts can take greater consideration of ethnic and cultural contacts in considering the child’s best interests.  But I agree the father’s appeal issues do not put that question squarely before us. 

Case No. 19-1016:  In the Interest of J.K., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1016

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Potterfield, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother and a father separately appeal the termination of their parental rights to their child, J.K.  OPINION HOLDS: Inasmuch as grounds for termination exist and permanency is in the child’s best interests, we affirm the termination of both parents’ parental rights.

Case No. 19-1033:  In the Interest of I.T., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1033

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: I. Clear and convincing evidence establishes the elements for termination under Iowa Code section 232.116(1)(h) (2018) because the mother’s substance use remained a concern at the time of the termination hearing.  II. Because the mother cannot provide the child with the permanency or care the child needs, termination is in the child’s best interests.  III. We decline to delay termination because the evidence does not indicate the need for removal will no longer exist at the end of that six-month period. 

Case No. 19-1058:  In the Interest of K.N., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1058

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 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 rights and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1063:  In the Interest of A.R. and S.R., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1063

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  Dissent by Potterfield, P.J.  (11 pages)

            The father appeals the termination of his parental rights to his two children, A.R. and S.R.  The father does not contest the statutory grounds for termination have been met.  He maintains termination of his parental rights is not in the best interests of the children and claims the juvenile court should have placed the children in a guardianship with their maternal grandmother in lieu of terminating his parental rights because of the closeness of the bond he shares with the children.  OPINION HOLDS: Because the father has not demonstrated an ability to stay sober and create a safe environment for his children and will be imprisoned for at least three more years, and the children are thriving in their maternal grandmother’s care, we affirm the termination.  DISSENT ASSERTS: Based on the holdings of recent cases with similar facts, I would reverse the termination of the father's parental rights.

Case No. 19-1094:  In the Interest of Z.R., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1094

            Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Greer, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (6 pages)

            A mother and father each appeal a juvenile court order terminating their parental rights.  OPINION HOLDS: There is clear and convincing evidence in the record to support termination of the mother’s parental rights, and the court properly denied her request for an extension of time.  The father did not raise any claims concerning the termination of his parental rights.  We conclude his parental rights were properly terminated.  We affirm on both appeals.

Case No. 19-1146:  In the Interest of K.K. and A.K., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1146

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the termination of his parental rights to his children.  He contends termination was not in the children’s best interests and the juvenile court should have invoked certain exceptions to termination.  OPINION HOLDS: We affirm the termination of the father’s parental rights to the children.

Case No. 19-1164:  In the Interest of J.S., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1164

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  She contends (1) the State failed to prove the ground for termination cited by the court and (2) termination was not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child. 

Case No. 19-1170:  In the Interest of S.B. and R.B., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1170

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            On appeal, the father and the intervenors contend the juvenile court erred in not finding the mother had relapsed and that the children should remain with the father.  OPINION HOLDS:  The juvenile court found both parents were capable of caring for their children at the time of the permanency-review hearing and determined the children could be returned to the mother, from whom the children had been removed.  We find no reason to disturb the juvenile court’s ruling and we therefore affirm.

 

Case No. 19-1176:  In the Interest of G.B., Minor Child

Filed Sep 11, 2019

View Opinion No. 19-1176

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

            A mother appeals the termination of her parental rights to her minor child.  She argues: (1) termination is not in the child’s best interests, (2) the State failed to make reasonable efforts at reunification, and (3) she should have been given additional time for reunification.  OPINION HOLDS: We conclude termination is in the child’s best interests, the mother failed to preserve error on her reasonable-efforts challenge, and additional time is unwarranted.  We affirm the termination of the mother’s parental rights.

Case No. 19-1182:  In the Interest of P.R. and E.R., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1182

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED. Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her two children.  She argues she should have additional time because she has a different attorney on appeal.  She also argues the Iowa Department of Human Services’ repeated failure to provide her with permanency plans violates her due process rights and it was abuse of discretion on the part of the district court to terminate her parental rights without the permanency plans. OPINION HOLDS: No due process violations occurred.  The mother’s abuse-of-discretion argument was not raised at any point before appeal and was not substantiated in the mother’s petition.  We affirm.

Case No. 19-1190:  In the Interest of A.C., I.C., and A.C., Minor Children

Filed Sep 11, 2019

View Opinion No. 19-1190

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            The mother appeals the termination of her parental rights to three of her children, who are all age three or younger.  The juvenile court terminated the mother’s parental rights to each child pursuant to Iowa Code section 232.116(1)(e) and (h) (2019), citing the mother’s unresolved use of methamphetamine, housing instability, and issues involving mental health.  On appeal, the mother claims there is insufficient evidence to support the statutory grounds for termination and, in the alternative, asks for an extension of time to work toward reunification.  OPINION HOLDS: The statutory grounds for termination have been met, and an extension of time is not warranted.  We affirm the termination of the mother’s parental rights.

Case No. 17-1952:  Rondell Mandray Cropp v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 17-1952

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris and Andrea J. Dryer, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Rondell Cropp appeals the dismissal of his application for postconviction relief (PCR) following his 2007 convictions for robbery in the first degree and willful injury causing serious injury.  He maintains the PCR court improperly dismissed his application without giving him notice of its intention to do so or allowing him an opportunity to respond.  OPINION HOLDS: Because Cropp could not meet his burden of establishing his PCR claims survive the statute of limitations based on the new-ground-of-fact exception and because his illegal-sentence claims did not merit an evidentiary hearing, the PCR court did not err in dismissing Cropp’s claims without an evidentiary hearing.  We affirm the dismissal of Cropp’s PCR application.

Case No. 18-0237:  In the Matter of E.M., Alleged to be Seriously Mentally Impaired.

Filed Aug 21, 2019

View Opinion No. 18-0237

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            E.M. appeals the district court order finding she was seriously mentally impaired.  OPINION HOLDS: We conclude the hospitalization order is not supported by clear and convincing evidence.  Accordingly, the order is reversed.  We remand the matter to the district court with instructions to deny the application and terminate the proceeding.

Case No. 18-0309:  Chester Lee Polk Jr. v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-0309

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

            Postconviction-relief (PCR) applicant Chester Polk Jr. appeals the dismissal of his second PCR application as untimely.  He asks the court to apply the “relation-back” doctrine set out in Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018), to find his application was timely.  OPINION HOLDS: Because the applicant waited nearly six months to file his second PCR application, he did not meet the “prompt” filing mandate in Allison.  We affirm the dismissal. 

Case No. 18-0476:  Friends of Bunker Mill Bridge, Inc. v. Washington County Board of Supervisors

Filed Aug 21, 2019

View Opinion No. 18-0476

            Appeal from the Iowa District Court for Washington County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered Vaitheswaran, P.J., Vogel, S.J., and Blane, S.J.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Friends of Bunker Mill Bridge, Inc. (FBMB) appeals the district court’s ruling on its petition for writ of certiorari upholding the order of the Washington County Board of Supervisors vacating a portion of a secondary highway.  OPINION HOLDS: We affirm the district court decision denying FBMB’s petition for writ of certiorari.

Case No. 18-0930:  Jose Luis Aguilar Olvera v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-0930

            Appeal from the Iowa District Court for Emmet County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (11 pages)

            Jose Luis Aguilar Olvera appeals the district court’s denial of his application for postconviction relief, alleging his trial attorneys were ineffective in allowing him to submit blood and saliva samples under a nontestimonial identification order.  OPINION HOLDS: Because the district court’s order did not violate Aguilar’s due-process rights, Aguilar did not prove his attorneys performed below professional norms by not objecting to the corresponding procedures.  We thus affirm the denial of postconviction relief.

Case No. 18-1217:  Pablo Benavidez v. State of Iowa

Filed Aug 21, 2019

View Opinion No. 18-1217

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Pablo Benavidez appeals a district court remand order with regard to his application for postconviction relief, contending the district court abused its discretion in deducting 5000 days of his earned time credits as a penalty for filing a frivolous action.  OPINION HOLDS: We affirm the district court’s deduction of 5000 days of earned time credits as a penalty for Benavidez’s frivolous filing. 

Case No. 18-1361:  In the Matter of the Guardianship and Conservatorship of Maggie Jean Lewis Turner

Filed Aug 21, 2019

View Opinion No. 18-1361

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (14 pages)

            The ward’s niece and nephew appeal from the denial of their applications for guardianship and conservatorship and the appointment of the ward’s long-time friends as guardians.  They contend the district court erred in concluding the ward was competent when executing two durable powers of attorney (POA) granting a medical POA to the friends and a general POA to a bank.  OPINION HOLDS: We find no error in the court’s conclusion the ward was competent to execute the POAs.  There is no dispute the ward now needs a guardian, but we further conclude the appointment of the ward’s friends was appropriate and did not involve an abuse of discretion.  Finally, the district court did not err in determining the bank is adequately handling her financial affairs and a conservatorship is unnecessary. 

Case No. 18-1437:  Gregory Ragsdale v. David Wireman

Filed Aug 21, 2019

View Opinion No. 18-1437

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Gregory Ragsdale appeals the district court’s order granting David Wireman’s motion for summary judgment on Ragsdale’s petition for declaratory judgment regarding the parties’ interests in a public way created by a prior condemnation proceeding.  OPINION HOLDS: The district court did not err in concluding the condemned tract of land was a public tract and in granting Wireman’s motion for summary judgment.

Case No. 18-1475:  Chadmark, LLC v. Kristin Bush

Filed Aug 21, 2019

View Opinion No. 18-1475

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Greer, J.  (8 pages)

            The district court awarded loss-of-use damages to Chadmark, LLC resulting from damage to one of its trucks.  The company appeals the court’s calculation of damages and asserts it is also entitled to damages for out-of-pocket expenses to retrieve a replacement truck.  OPINION HOLDS: We agree with the district court’s calculation of loss-of-use damages but find additional damages for out-of-pocket expenses are appropriate.  We remand for entry of judgment reflecting the additional damages award.

Case No. 18-1488:  Anthony A. Browne v. Edward Alton Hill, Adam Paul Pyatt, Michael Paul Noel, and David William Ambrisco

Filed Aug 21, 2019

View Opinion No. 18-1488

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (2 pages)

            Anthony Browne appeals the district court’s grant of summary judgment in favor of his co-workers in his lawsuit alleging defamation and other torts.  OPINION HOLDS: We affirm without opinion.

Case No. 18-1496:  In re the Marriage of Vanderbilt

Filed Aug 21, 2019

View Opinion No. 18-1496

            Appeal from the Iowa District Court for Bremer County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (8 pages)

            A husband appeals the district court’s refusal to set aside a default decree dissolving his marriage.  He contends his wife and her attorney misled him about the purpose of their meeting and claims he did not receive notice of the proceedings.  OPINION HOLDS: Deferring to the strong credibility findings of the district court, we find the husband’s excuses for defaulting do not support setting aside the default judgment.  We affirm. 

Case No. 18-1607:  Jorge Oscar Sanchez and Eligio Sanchez Estrella v. RR&A Holdings, LLC

Filed Aug 21, 2019

View Opinion No. 18-1607

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (11 pages)

            Jorge Sanchez appeals the district court order denying his petition for an injunction of the enforcement of the forfeiture of a real estate installment contract.  OPINION HOLDS: We find the notice of forfeiture was sufficient and affirm the district court’s denial of injunctive relief.  We also find the court did not err in finding RR&A did not waive its right to interest on untimely payments.  Finally, we affirm the district court’s denial of additional time to cure the default. 

Case No. 18-1689:  In the Interest of P.M., B.M., and L.M., Minor Children

Filed Aug 21, 2019

View Opinion No. 18-1689

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (9 pages)

            Parents appeal the termination of their parental rights to their three minor children.  The district court terminated their parental rights under Iowa Code section 600A.8(3)(b) (2018).  OPINION HOLDS: We conclude clear and convincing evidence supports the district court’s determination that the parents abandoned the children under Iowa Code section 600A.8(3)(b).  We further conclude termination of the parent’s parental rights is in the children’s best interest.  We affirm.

Case No. 18-1811:  Brett V. Sullivan v. West Central Cooperative and Farmland Mutual Insurance Company

Filed Aug 21, 2019

View Opinion No. 18-1811

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            Brett Sullivan challenges the district court’s ruling on judicial review affirming the Workers’ Compensation Commissioner’s determination Sullivan does not have a mental-health condition that was caused by his 2011 workplace injury.  OPINION HOLDS: Because we agree with the district court’s conclusion that substantial evidence support the commissioner’s determination, we affirm.

Case No. 18-1820:  In re the Marriage of Lyon

Filed Aug 21, 2019

View Opinion No. 18-1820

            Appeal from the Iowa District Court for Hardin County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (7 pages)

            Steven Lyon appeals from the district court’s modification of his and Lori Lyon’s previously modified dissolution decree.  He asks us to affirm the district court’s change of the holiday schedule but otherwise argues the court should have changed the parenting-time schedule to give him even more time with the parties’ child, C.L.  In response, Lori asks that we affirm the district court’s modification and award her $2500 in appellate attorney fees.  OPINION HOLDS: For the reasons stated herein, we affirm the district court’s ruling on Steven’s petition for modification and decline Lori’s request for appellate attorney fees. 

Case No. 18-1948:  State of Iowa v. Justin Dennis Hullinger Shields

Filed Aug 21, 2019

View Opinion No. 18-1948

            Appeal from the Iowa District Court for Wayne County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (6 pages)

            Justin Shields appeals the district court’s denial of his motion to suppress preceding his conviction of operating while intoxicated.  OPINION HOLDS: We affirm the district court’s denial of Shields’s motion to suppress.

Case No. 18-2019:  In the Interest of D.K., Minor Child

Filed Aug 21, 2019

View Opinion No. 18-2019

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (8 pages)

            A father appeals the termination of his parental rights to his child.  The district court terminated his parental rights under Iowa Code section 600A.8(3)(b) (2018).  On appeal, the father argues the termination of his parental rights is supported by insufficient evidence.  OPINION HOLDS:  The mother proved the father abandoned the child by clear and convincing evidence.  It is in the child’s best interest to terminate the father’s parental rights.  We affirm.

Case No. 18-2025:  In re the Marriage of Grchan

Filed Aug 21, 2019

View Opinion No. 18-2025

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Kristen Grchan appeals from the decree dissolving her marriage to Michael Grchan, contending the parties’ children should have been placed in her physical care rather than shared physical care.  OPINION HOLDS: On our de novo review, we conclude the district court acted equitably in granting the parents joint physical care of the children. 

Case No. 18-2100:  State of Iowa v. Dale Leroy Cheney Jr.

Filed Aug 21, 2019

View Opinion No. 18-2100

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer (motion to suppress) and Karen Kaufman Salic (sentencing), District Associate Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (6 pages)

            Dale Cheney Jr. appeals the district court’s denial of his motion to suppress and the sentence imposed upon his conviction of operating while intoxicated, second offense.  OPINION HOLDS: We affirm the district court’s denial of Cheney’s motion to suppress and the sentence imposed.   

Case No. 19-0034:  In the Matter of J.E., Alleged to be Seriously Mentally Impaired

Filed Aug 21, 2019

View Opinion No. 19-0034

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J.  (6 pages)

            J.E. challenges the district court’s order of continued involuntary inpatient commitment.  J.E. maintains there is insufficient evidence to support the determination he is a present danger to himself or others and requires continued placement in an alternative care facility.  OPINION HOLDS: J.E. is not able to satisfy his essential needs without assistance.  Because sufficient evidence supports the district court’s order of continued involuntary inpatient commitment, we affirm.

Case No. 19-0059:  Pengzhen Yin v. Iowa Board of Regents

Filed Aug 21, 2019

View Opinion No. 19-0059

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            The Iowa Board of Regents (Board) appeals the district court order reversing its decision to expel a student for academic misconduct.  OPINION HOLDS:  The Board’s decision is supported by substantial evidence.  We reverse the district court’s decision and remand for an order affirming the Board’s decision.

Case No. 19-0972:  In the Interest of J.L. and J.L., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-0972

            Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            A mother appeals the juvenile court’s permanency order and decision terminating her parental rights.  OPINION HOLDS: We find the State engaged in reasonable efforts to reunite the mother with her children and termination of the mother’s parental rights is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-1011:  In the Interest of B.M., K.M., and R.M., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-1011

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

            A father appeals the termination of his parental rights to his children.  OPINION HOLDS: Clear and convincing evidence shows terminating the father’s parental rights is in the children’s best interests.  As a result, we affirm.

Case No. 19-1064:  In the Interest of L.C. and K.C., Minor Children

Filed Aug 21, 2019

View Opinion No. 19-1064

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A mother and father separately appeal the termination of their parental rights to two children.  The mother challenges the statutory ground for termination, but the father concedes the State proved the grounds as to him.  He argues it was not in the children’s best interests to terminate his rights.  Finally, he contends the court should have given him more time to reunify with the children.  OPINION HOLDS: On de novo review, we conclude the State proved the statutory ground for terminating the mother’s rights.  The State also showed it was in the children’s best interests to terminate the father’s rights.  Finally, there were no grounds to support granting the father additional time.  We affirm. 

Case No. 19-1091:  In the Interest of C.P., Minor Child

Filed Aug 21, 2019

View Opinion No. 19-1091

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to a child, born in 2018.  She contends the State failed to prove the grounds for termination cited by the district court, termination is not in the child’s best interests, and the court should have granted her six additional months to work toward reunification with the child.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 18-0110:  In re the Marriage of Okrzynski and Campos

Filed Aug 07, 2019

View Opinion No. 18-0110

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Marvin Campos appeals the district court’s denial of his petition to modify the parties’ dissolution decree.  We must decide whether the district court erred in concluding Campos’ petition amounted to an impermissible collateral attack on prior orders.  OPINION HOLDS: We affirm the dismissal of the petition to modify the decree.  Leah Okrzynski is entitled to have Campos pay her appellate attorney fees; we remand for a hearing to determine the amount.

Case No. 18-0259:  State of Iowa v. Jontese L. Ware

Filed Aug 07, 2019

View Opinion No. 18-0259

            Appeal from the Iowa District Court for Linn County, Nicholas L. Scott, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (5 pages)

            The defendant appeals his convictions for assault causing bodily injury, arguing photographs of the alleged injuries to a victim who did not testify violated the Confrontation Clause.  OPINION HOLDS: Because the photographs are not testimonial statements, there is no Confrontation Clause violation.  The district court did not err in overruling the objection.   

Case No. 18-0686:  Leon Juan Zacharias v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-0686

            Appeal from the Iowa District Court for Muscatine County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Leon Juan Zacarias appeals the dismissal of his application for postconviction relief.  He claims the district court erred in its credibility determination and his trial counsel provided ineffective assistance.  OPINION HOLDS: We find the district court did not abuse its discretion in its credibility findings and Zacarias did not establish by a preponderance of evidence that trial counsel breached a duty to him.  We affirm.

Case No. 18-0699:  In re the Marriage of McMillian

Filed Aug 07, 2019

View Opinion No. 18-0699

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Justin McMillian appeals the district court’s denial of his petition to modify the parties’ dissolution decree to order physical care of the parties’ child with him.  OPINION HOLDS: We conclude the district court acted equitably in denying Justin’s petition to modify the physical care provision of the dissolution decree.  We affirm the court’s decision.

Case No. 18-0714:  Sycamore, L.L.C. and Lake Calvin Properties, L.L.C. v. City Council of Iowa City

Filed Aug 07, 2019

View Opinion No. 18-0714

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            Sycamore, L.L.C. and Lake Calvin Properties, L.L.C. appeal the district court’s ruling annulling their writ of certiorari challenging the City Council of Iowa City’s denial of their application to rezone 42.01 acres of property.  On appeal, the landowners maintain the district court erred in concluding (1) the City Council did not incorrectly apply the law in denying their application for rezoning and (2) the Council’s decision is supported by substantial evidence in the record.  OPINION HOLDS: Because the Council did not incorrectly apply the law and substantial evidence supports its decision to deny the landowners’ application for rezoning, we affirm the district court’s annulling of the landowners’ writ of certiorari. 

Case No. 18-0929:  Chad Miller v. Property Assessment Appeal Board and Scott County Board of Review

Filed Aug 07, 2019

View Opinion No. 18-0929

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (9 pages)

            Chad Miller appeals the district court decision affirming the ruling of the Iowa Property Assessment Appeal Board (PAAB) that his property should be classified as residential, rather than agricultural.  The PAAB cross-appeals the court’s determination the issue of inequitable assessment of Miller’s property should be remanded to the PAAB.  OPINION HOLDS: We affirm the district court and the PAAB on the issue of the classification of Miller’s property as agricultural.  We reverse the district court’s decision on the issue of inequitable assessment.  We remand for an order affirming the PAAB’s decision on inequitable assessment.

Case No. 18-0985:  David Ray Hawkins v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-0985

            Appeal from the Iowa District Court for Marion County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (2 pages)

            David Ray Hawkins appeals from the summary dismissal of his application for postconviction relief (PCR).  He raises a claim of ineffective assistance of PCR counsel.  OPINION HOLDS: The ineffective-assistance-of-counsel claim must be asserted in a separate PCR application. 

Case No. 18-1006:  In re the Marriage of Jensen

Filed Aug 07, 2019

View Opinion No. 18-1006

            Appeal from the Iowa District Court for Lucas County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            Jay Todd Jensen appeals from the decree of dissolution of his marriage to Kimberly Marie Jensen.  He argues the court should not have considered his disability and special pay from his military service when awarding Kimberly’s retirement accounts entirely to her.  OPINION HOLDS: We find that awarding each party their respective retirement accounts is equitable, and we affirm the district court.

Case No. 18-1021:  Bobby Joe Morris v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-1021

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Gamble, S.J., takes no part.  Opinion by Bower, J.  (7 pages)

            Bobby Joe Morris appeals from the dismissal of his application for postconviction relief (PCR) in which he challenges his 1998 conviction for first-degree murder.  OPINION HOLDS: All of Morris’s claims of ineffective assistance of trial, appellate, and first PCR counsel are time barred.  With respect to his cruel-and-unusual-punishment claim, Morris grounds the claim on due process, arguing, “The due process violation as to Morris results in his cruel and unusual punishment under Article I, section 17 of the Iowa Constitution . . . and the Eighth Amendment.”  We find no error in the PCR court’s rejection of his claim of an illegal sentence. 

Case No. 18-1069:  State of Iowa v. Willie Clay Werner

Filed Aug 07, 2019

View Opinion No. 18-1069

            Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (6 pages)

           

            On appeal after resentencing, Willie Werner argues the resentencing court abused its discretion by (1) using an outdated presentence investigation report, (2) imposing consecutive sentences without stating adequate reasons on the record, and (3) ordering him to reimburse the state for attorney fees without determining the amount of restitution or his ability to pay.  OPINION HOLDS: We affirm the district court’s decision to impose a sixty-year term of incarceration; however, we reverse the part of the sentence regarding restitution and remand the case for resentencing consistent with this opinion and State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019).

Case No. 18-1089:  State of Iowa v. David Lee Levy Jr.

Filed Aug 07, 2019

View Opinion No. 18-1089

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (4 pages)

            David Levy Jr. appeals the sentence imposed following his conviction of assault on a jailer causing bodily injury.  OPINION HOLDS: I. The district court did not abuse its discretion in ordering Levy’s sentence run consecutive to his sentence in another case.  II. In accordance with State v. Albright, 925 N.W.2d 144, 158-61 (Iowa 2019), we vacate the portion of the sentencing order assessing costs of the action, surcharges, and fees to Levy pending completion of a final restitution order and assessment of Levy’s reasonable ability to pay.  III. We also vacate the portion of the sentencing order requiring Levy to request a hearing on his reasonable ability to pay appellate attorney fees or be assessed the full amount and remand for entry of a corrected order.

Case No. 18-1151:  James Moriarty v. State Public Defender

Filed Aug 07, 2019

View Opinion No. 18-1151

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (3 pages)

            James Moriarty seeks further judicial review of a final agency decision terminating his indigent-defense contract with the State Public Defender.  OPINION HOLDS: Like the district court, we affirm the agency decision in its entirety.

Case No. 18-1152:  Ronald N. McDonald v. EZ Payroll & Staffing Solutions, LLC and Zurich American Insurance Company

Filed Aug 07, 2019

View Opinion No. 18-1152

              Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (10 pages)

            Ronald N. McDonald appeals from the district court’s judicial review ruling upholding the workers’ compensation commissioner’s denial of permanent disability benefits.  OPINION HOLDS: Because we find no abuse of discretion in the commissioner’s evidentiary ruling and there is substantial evidence to support the commissioner’s determination that McDonald had not proved causation, we affirm the district court in upholding the commissioner’s findings. 

Case No. 18-1155:  Heather Brooke Almeida n/k/a Heather Bertroche v. David John Wilcox Almeida

Filed Aug 07, 2019

View Opinion No. 18-1155

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.         Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (12 pages)

            David Almeida appeals the entry of a domestic-abuse protective order under Iowa Code chapter 236 (2016) in favor of Heather Almeida.  OPINION HOLDS: We affirm the district court’s entry of the protective order.

Case No. 18-1206:  Kristin R. Brosnan v. Stan Woodman and Myra Woodman d/b/a Aragon Tap

Filed Aug 07, 2019

View Opinion No. 18-1206

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

            Kristin Brosnan appeals the district court’s grant of summary judgment in her negligence action against Aragon Tap and Stan and Myra Woodman, claiming the court improperly resolved a credibility dispute between conflicting evidence.  OPINION HOLDS: Because uncontroverted video evidence demonstrated the absence of a factual dispute, and Brosnan is unable to prove the causation element of her negligence claim, we affirm.

Case No. 18-1233:  GreatAmerica Financial Services Corporation v. Monge & Associates, P.C.

Filed Aug 07, 2019

View Opinion No. 18-1233

            Appeal from the Iowa District Court for Linn County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (11 pages)

            Monge & Associates, P.C., appeals from the district court’s order granting summary judgment in favor of GreatAmerica Financial Services Corporation in this breach-of-contract action.  OPINION HOLDS: Because no genuine issue of material fact remains for trial, GreatAmerica is entitled to judgment as a matter of law.

Case No. 18-1260:  State of Iowa v. Brandon D. Ruiz

Filed Aug 07, 2019

View Opinion No. 18-1260

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows and Tom Reidel, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.   Opinion by Potterfield, P.J. (5 pages)

           

            Brandon Ruiz appeals from his conviction of sexual abuse in the second degree following a trial to the bench.  Ruiz maintains the district court erred by allowing the State to amend the trial information to add wholly new or different charges after the speedy-indictment deadline had passed.  OPINION HOLDS: The court’s decision to allow the State to amend the trial information to include six more counts than the initial trial information was in error, but the error was harmless since Ruiz was convicted of just one count—as he was initially charged.  We affirm.

Case No. 18-1421:  Dave Tomlinson v. State of Iowa

Filed Aug 07, 2019

View Opinion No. 18-1421

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            Dave Tomlinson appeals an order granting the State’s motion to dismiss.  OPINION HOLDS: Finding no legal error, we affirm the order granting the State’s motion to dismiss. 

Case No. 18-1535:  In re the Marriage of Curtis

Filed Aug 07, 2019

View Opinion No. 18-1535

            Appeal from the Iowa District Court for Adams County, John D. Lloyd, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (17 pages)

            Mark Curtis appeals the decree dissolving his marriage to Misha Curtis.  Mark challenges the spousal-support, child-support, property-distribution, and visitation provisions of the decree, as well as the court’s award of trial attorney fees to Misha.  Misha requests an award of appellate attorney fees.  OPINION HOLDS: We modify the amount and duration of rehabilitative spousal support to $1000.00 per month for one year from the time the decree was entered, followed by $500.00 per month for six months.  We modify Mark’s child-support obligation under the decree to $910.81 per month.  Given the limited duration of Misha’s spousal-support award coupled with an anticipated increase in her income, we remand the matter to the district court for a determination of Mark’s child-support obligation after his spousal-support obligation decreases to $500.00 per month.  The foregoing support obligation shall apply to the duration between the entry of the decree and the time the district court enters an order identifying Mark’s future support obligation.  We find correction or modification of Mark’s temporary child-support obligation was not properly before the court, and the court’s sua sponte retroactive modification of the temporary-matters order was therefore error.  We therefore modify the decree to vacate the portions that retroactively modified Mark’s child-support obligation under the temporary-matters order.  We affirm the district court’s property distribution in its entirety and the award of attorney fees in favor of Misha.  We deny Misha’s request for appellate attorney fees.  Costs on appeal are assessed equally between the parties. 

Case No. 18-1593:  Dena Jean Blazek, Administrator of the Estate of Adam William Blazek, Deceased; Dena Jean Blazek, Individually, and as Next Friend of C.B. and A.B. v. City of Nevada and City of Nevada, Iowa Employees Doe

Filed Aug 07, 2019

View Opinion No. 18-1593

            Appeal from the Iowa District Court for Story County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (13 pages)

            The plaintiffs appeal the district court’s decision granting the motion for summary judgment filed by the City of Nevada and unnamed City of Nevada employees in a suit seeking money damages for the death by suicide of Adam Blazek and the conduct of City of Nevada police officers.  OPINION HOLDS:  The plaintiffs’ tort claims against the defendants were barred because the defendants did not have a special relationship with the plaintiffs sufficient to defeat the public-duty doctrine.  The plaintiffs’ constitutional claims fail because they are based on tort theories and similarly barred by the public-duty doctrine or were based on violations of the plaintiffs’ substantive due process rights, in which case the plaintiffs did not meet their burden to show the defendants’ actions shocked the conscience.

Case No. 18-1624:  Lee and Rita Dvorak v. Oak Grove Cattle, L.L.C.

Filed Aug 07, 2019

View Opinion No. 18-1624

            Appeal from the Iowa District Court for Mitchell County, DeDra L. Schroeder, Judge.  REVERSED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (7 pages)

            Lee and Rita Dvorak appeal the district court decision granting summary judgment to Oak Grove Cattle, L.L.C., based on the statute of limitations.  OPINION HOLDS: We conclude the district court improperly granted summary judgment to Oak Grove on the ground the Dvoraks’ action was barred by the statute of limitations.  Oak Grove did not meet its burden to show the case involved a permanent nuisance, rather than a continuing nuisance.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-1663:  Gregory R. Swecker and Beverly F. Swecker v. Midland Power Cooperative

Filed Aug 07, 2019

View Opinion No. 18-1663

            Appeal from the Iowa District Court for Greene County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (3 pages)

            Gregory and Beverly Swecker appeal the dismissal of their petition to vacate a judgment.  OPINION HOLDS: Finding no abuse of discretion in the court’s ruling, we affirm.

Case No. 18-1670:  Amy Ruchotzke v. Shawn Gerardy

Filed Aug 07, 2019

View Opinion No. 18-1670

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

            Amy Ruchotzke appeals from the provision of the district court’s order for custody, child support, and visitation giving Shawn Gerardy physical care of the parties’ minor child, T.G.  Amy contends she should be given physical care of T.G., as she is better equipped to meet his needs.  Her appeal is based on the claim the district court got the facts wrong.  OPINION HOLDS: While our review is de novo, we agree with the district court’s recitation of pertinent facts and the determination that placing T.G. is Shawn’s physical care is in T.G.’s best interests.  We affirm.

Case No. 18-1694:  In re the Marriage of Liening

Filed Aug 07, 2019

View Opinion No. 18-1694

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (8 pages)

            Steven Liening appeals the district court order denying his petition to modify the physical-care provisions of a dissolution-of-marriage decree.  OPINION HOLDS: We affirm the court’s denial of Steven’s petition for modification as he failed to prove a substantial and material change in circumstance occurred which justifies the modification of the children’s physical-care arrangement.  Steven also failed to prove he had a superior ability to meet the needs of the children.  We decline to award appellate attorney fees.  Costs on appeal are taxed one-half to each party.

Case No. 18-1695:  In re the Marriage of Brincks

Filed Aug 07, 2019

View Opinion No. 18-1695

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Victoria Brincks appeals the district court’s order dissolving her marriage to William Brincks.  OPINION HOLDS: Upon our de novo review, we affirm the part of the district court’s order dissolving the marriage.  However, we do not believe that including the marital debts into the “pot” and dividing them equitably runs afoul of the Bankruptcy Code in the limited circumstances of this case, and we therefore reverse the part of the district court’s order declining to order William to pay his share of the marital debts in issue on appeal.  We remand for further proceedings consistent with this opinion.

Case No. 18-1705:  Dawn Marie Leach v. Iowa Board of Nursing

Filed Aug 07, 2019

View Opinion No. 18-1705

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Nurse Dawn Leach appeals from the district court’s dismissal of her petition for judicial review challenging the Iowa Board of Nursing’s conclusion she violated the confidentiality or privacy rights of a patient and imposition of a citation and warning.  Leach maintains the district court erred in dismissing her petition for judicial review because the Board’s conclusion is based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency and is not supported by substantial evidence in the record before the court when that record is viewed as a whole.  OPINION HOLDS: We cannot say the Board’s determination is irrational, illogical, or wholly unjustifiable when it found purposefully accessing confidential patient information that is not needed to perform one’s job duties—without further action—constitutes a violation of patient confidentiality rights.  We affirm.

Case No. 18-1711:  Raymond Blasco v. Nichole Marie Webb

Filed Aug 07, 2019

View Opinion No. 18-1711

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Nichole Webb appeals from the district court’s decree of paternity, custody, visitation, and support.  She asserts she should have been granted physical care of the parties’ child.  OPINION HOLDS: We affirm.

Case No. 18-1712:  Hedayat Khaldar Saghir v. Menards

Filed Aug 07, 2019

View Opinion No. 18-1712

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  May, J., takes no part.  Opinion by Bower, J.  (7 pages)

            Hedayat Khaldar Saghir appeals the district court’s and workers’ compensation commissioner’s rulings finding he did not establish permanent impairment attributable to his work injury or industrial disability.  OPINION HOLDS: Substantial evidence supports the district court’s ruling on judicial review, and we therefore affirm.

Case No. 18-1717:  In the Interest of W.E., Minor Child

Filed Aug 07, 2019

View Opinion No. 18-1717

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (6 pages)

            The juvenile court concluded W.E. committed acts constituting theft in the second degree and carrying weapons.  The court adjudicated W.E. delinquent.  OPINION HOLDS: The evidence does not establish beyond a reasonable doubt that W.E. committed acts constituting theft in the second degree or carrying weapons.

Case No. 18-1833:  Christopher Hans Granstra v. Shea Brianne Driesen

Filed Aug 07, 2019

View Opinion No. 18-1833

            Appeal from the Iowa District Court for O’Brien County, Charles Borth, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Christopher Granstra appeals a decree establishing paternity, custody, visitation, and child support.  Granstra requests he have physical care of the parties’ child rather than the child’s mother, Shea Driesen.  OPINION HOLDS: We affirm, concluding the district court acted equitably in granting Driesen rather than Granstra physical care of the child.

Case No. 18-1921:  Stephen Schoonover v. Megan Coulter

Filed Aug 07, 2019

View Opinion No. 18-1921

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Mullins, J.  (6 pages)

            Megan Coulter appeals a district court decree awarding Stephen Schoonover physical care of their child.  OPINION HOLDS: On this record, we conclude Coulter should have been granted physical care, and we modify the physical-care determination to place physical care of the child with her.  DISSENT ASSERTS:  Based on the extremely limited trial record and ignoring the non-record facts asserted by Coulter in her brief on appeal, I would affirm.

Case No. 18-1937:  In re the Detention of Bradley Williams

Filed Aug 07, 2019

View Opinion No. 18-1937

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Bradley Williams appeals his civil commitment as a sexually violent predator under Iowa Code chapter 229A (2016).  He argues the court erred in concluding he was “a person presently confined” for a sexually violent offense within the meaning of Iowa Code section 229A.4(1) and the evidence was insufficient to support a conclusion he is a “sexually violent predator” as defined in section 229A.2(12).  OPINION HOLDS: We find substantial evidence supports the district court’s conclusions and affirm the district court order civilly committing Williams as a sexually violent predator.

Case No. 18-2022:  Darren Sleister v. State Farm Fire and Casualty Company

Filed Aug 07, 2019

View Opinion No. 18-2022

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  May, J., takes no part.  Opinion by Greer, J.  (7 pages)

            Darren Sleister appeals the district court’s orders granting judgment notwithstanding the verdict to State Farm Fire and Casualty Company (State Farm) on his breach-of-contract claim and dismissing his bad-faith claim.  He argues the evidence is sufficient for the jury to conclude he complied with the conditions of the homeowner’s policy issued by State Farm.  OPINION HOLDS: We agree with the district court’s detailed and well-reasoned opinion on judgment notwithstanding the verdict as to the breach-of-contract claim, and we affirm without further opinion.  Based on this conclusion, we also affirm the grant of summary judgment on his bad-faith claim.

Case No. 18-2023:  In re the Marriage of Bernal

Filed Aug 07, 2019

View Opinion No. 18-2023

            Appeal from the Iowa District Court for Madison County, Martha L. Mertz, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (2 pages)

            Tina Staples appeals from the district court’s ruling on contempt claims, temporary support, and alimony.  OPINION HOLDS: We affirm without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a) and (d).

Case No. 18-2086:  Jayne A. Intlekofer, Jeffrey C. Intlekofer, Catherine A. Intlekofer and Stephen J. Intlekofer v. Reitberry Rental Prop., LLC, and City of Monticello, IA

Filed Aug 07, 2019

View Opinion No. 18-2086

            Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (7 pages)

            The Intlekofers appeal the district court’s grant of summary judgment to the City of Monticello and an adjacent property owner on claims of negligence allegedly resulting in water damage to the Intlekofers’ building, arguing the district court erroneously concluded an expert witness is required to establish causation because it is common knowledge that “water flows downhill.”  OPINION HOLDS:  Because whether changes in topography caused the water damage is a technical or scientific matter calling for an expert opinion, we affirm the district court’s grant of summary judgment. 

Case No. 18-2104:  In re the Marriage of Pierce

Filed Aug 07, 2019

View Opinion No. 18-2104

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

            Suzanne Billeter appeals the district court’s denial of her petition to modify the decree dissolving her marriage to Brian Pierce.  She argues the court erred in: (1) not finding a substantial and material change in circumstance to modify custody and physical care, (2) finding a substantial change in circumstance to modify child support, and (3) not granting a new trial.  OPINION HOLDS: We affirm the court’s modification ruling and the denial of Suzanne’s request for a new trial.

Case No. 18-2122:  In re the Marriage of Widdison

Filed Aug 07, 2019

View Opinion No. 18-2122

            Appeal from the Iowa District Court for Woodbury County, James S. Heckerman, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (6 pages)

            Harold Widdison appeals various district court orders in the ongoing litigation following the dissolution of his marriage to Amy Widdison (now Amy Dendy).  OPINION HOLDS: Harold is not entitled to reimbursement of fees or costs incurred when the Iowa Child Support Recovery Unit seized funds from his retirement account.  We affirm the district court’s award of Amy’s attorney fees and denial of Harold’s motion for sanctions.  We remand to the district court to determine the amount of Amy’s appellate attorney fee award. 

Case No. 18-2157:  In re the Marriage of Carter

Filed Aug 07, 2019

View Opinion No. 18-2157

            Appeal from the Iowa District Court for Union County, Dustria A. Relph, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (12 pages)

            Jessie Carter appeals the district court’s decree dissolving her marriage to Jared Carter.  OPINION HOLDS: We find the district court’s findings on the award of shared physical care to be thorough and well-written and agree with the court’s conclusions.  We also find the district court’s decision to not award spousal support to be equitable.  We further find the district court did not abuse its discretion in its award of attorney fees to Jessie.  Accordingly, we affirm the district court’s decisions on shared care, spousal support, and attorney fees.  Given the parties’ economic positions and the significant disparity in income, equity requires Jared pay seventy-five percent of the children’s educational and extracurricular-activity expenses and Jessie pay twenty-five percent.  We modify the dissolution decree to require the parties to pay the expenses in accordance with those percentages.  Considering the parties’ economic positions and the minor modification in Jessie’s favor, Jared shall pay $1000.00 toward Jessie’s appellate attorney fees.  Costs on appeal shall be assessed one-half to each party. 

Case No. 18-2212:  In re the Marriage of Hansen

Filed Aug 07, 2019

View Opinion No. 18-2212

            Appeal from the Iowa District Court for Jackson County, John D. Telleen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Brandy Hansen appeals from the decree dissolving her marriage to James Hansen.  She argues the district court erred in granting James physical care of two children and child support.  OPINION HOLDS: Based on our de novo review of the record while giving deference to the district court’s findings, we conclude the court correctly awarded physical care of the two children to James.  We also conclude the court correctly awarded child support.  We decline to award either party appellate attorney fees.

Case No. 19-0044:  In the Interest of S.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0044

            Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (2 pages)

            S.B. appeals the juvenile court’s determination he must register with the sex offender registry.  OPINION HOLDS: We agree with the ruling of the juvenile court, and we affirm without further opinion. 

Case No. 19-0234:  In the Matter of K.T., Alleged to be Seriously Mentally Impaired

Filed Aug 07, 2019

View Opinion No. 19-0234

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and Greer, JJ.  Opinion by Greer, J.  (6 pages)

            K.T. challenges the district court’s finding of serious mental impairment, claiming there is insufficient evidence that she lacks sufficient judgment to make responsible decisions with respect to her hospitalization or treatment.  OPINION HOLDS: We conclude the district court’s findings of fact were supported by substantial evidence, and there was no error of law in the district court’s decision that K.T. lacked sufficient judgment to make responsible decisions regarding her care.

Case No. 19-0247:  In the Interest of C.P., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0247

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Greer, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            A mother appeals the termination of her parental rights to C.P., her minor child.  She argues her parental rights should not have been terminated and guardianship of C.P. should have been given a family member.  OPINION HOLDS: Because we conclude termination was proper, we decline to address the mother’s post-termination placement argument.  We affirm.

Case No. 19-0731:  In the Interest of T.G., N.G., A.G., and J.G., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0731

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  REVERSED AND REMANDED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            A father and mother separately appeal the termination of their parental rights to four children.  OPINION HOLDS: With regard to the mother, we conclude the State failed to prove the grounds for termination.  With regard to the father, we conclude termination was not in the children’s best interests.  We reverse the termination decision as to both parents and remand for further proceedings. 

Case No. 19-0771:  In the Interest of A.J. and C.J., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0771

            Appeal from the Iowa District Court for Jones County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her children, challenging the sufficiency of the evidence supporting the statutory grounds for termination.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-0831:  In the Interest of B.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0831

            Appeal from the Iowa District Court for Iowa County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            The mother appeals the termination of her parental rights to B.B.  She argues the State failed to prove the statutory grounds for termination, termination is not in B.B.’s best interests, and the bond between them precludes termination.  OPINION HOLDS: Because of the mother’s ongoing substance abuse and the relative weakness of her bond with B.B., we affirm the termination.

Case No. 19-0836:  In the Interest of J.C., M.C., and J.C., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0836

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (11 pages)

            A mother and father separately appeal the juvenile court’s termination of their parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-0885:  In the Interest of C.L., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0885

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  The mother contends the State failed to show the child could not be returned to her and termination of her parental rights is not in the child’s best interest.  OPINION HOLDS: We affirm.

Case No. 19-0887:  In the Interest of P.K., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0887

            Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A mother and father separately appeal the termination of their parental rights to one child.  They contend the State failed to show by clear and convincing evidence the statutory grounds for termination and that termination is in the child’s best interests.  They ask the court to find termination would be detrimental to the child because of their parent-child bond.  OPINION HOLDS: The State showed by clear and convincing evidence the statutory ground for termination and that termination is in the child’s best interests.  We find the termination will not be detrimental to the child because of the parent-child bond. 

Case No. 19-0920:  In the Interest of M.E., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0920

            Appeal from the Iowa District Court for Jackson County, Phillip T. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  Tabor, J., takes no part.  (4 pages)

            A mother and a father separately appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS: Grounds for termination exist and the parents failed to meet their burden that guardianship is in the child’s best interests such that termination of their parental rights should be avoided.

Case No. 19-0942:  In the Interest of P.M., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0942

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, P.M.  OPINION HOLDS: We find there is sufficient evidence in the record to support the termination, termination is in the child’s best interests, and the mother has not shown termination would be detrimental to the child due to the closeness of the parent-child relationship.  We affirm the decision of the juvenile court.

Case No. 19-0976:  In the Interest of J.B., Minor Child

Filed Aug 07, 2019

View Opinion No. 19-0976

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            A father appeals the juvenile court’s adjudicatory and dispositional orders in a child-in-need-of-assistance proceeding.  OPINION HOLDS: We find the father failed to preserve error on his claims.  We affirm the court’s adjudicatory and dispositional orders.

Case No. 19-0986:  In the Interest of S.B., T.R., and P.R., Minor Children

Filed Aug 07, 2019

View Opinion No. 19-0986

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her three children, contending (1) termination is not in the children’s best interests due to the closeness of the parent-child bond, (2) the State failed to make reasonable efforts at reunification, and (3) termination was premature because the youngest child’s father was not identified or offered services.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 17-1402:  WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a CHRISTIANA TRUST not in its Individual Capacity, but Solely as Trustee for BCAT 2015-13BTT v. SHEREE SMITH-MARTINEZ and MICHAEL MARTINEZ

Filed Jul 24, 2019

View Opinion No. 17-1402

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly (summary judgment) and Patrick R. Grady (foreclosure), Judges.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (14 pages)

            Sheree Smith-Martinez and Michael Martinez appeal the district court’s grant of summary judgment in favor of Wilmington in a mortgage-foreclosure action.  OPINION HOLDS: The court had both subject-matter and personal jurisdiction over Wilmington, as assignee from Wells Fargo, which initially petitioned for foreclosure.  We also find Wilmington was not required to file the note and mortgage documents with the foreclosure petition.  The court did not abuse its discretion by considering the motion for summary judgment by nonoral submission.  There are no genuine issues of material fact and summary judgment was therefore appropriate.  Finally, we find the court’s order requiring the Martinezes to post a supersedeas bond was within the court’s authority and the amount was not excessive.  We deny the request for appellate attorney’s fees.  Costs on appeal are assessed one-half to Sheree Smith-Martinez and one-half to Michael Martinez.

Case No. 18-0134:  Jessie James Jones v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0134

            Appeal from the Iowa District Court for Clinton County, Tom Reidel, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (15 pages)

            Jessie Jones appeals the denial of his application for postconviction relief (PCR) following his conviction of sexual abuse in the second degree.  Jones claims the PCR court abused its discretion in denying his application for the appointment of an expert to testify in his PCR hearing regarding the standard of professional conduct for attorneys.  Additionally, Jones argues his PCR application should have been granted because his trial counsel breached an essential duty by (1) failing to call an expert to emphasize the lack of rape-kit evidence; (2) failing to contest evidence of Jones’s DNA found on the complaining witness’s “wrong” underwear or explain the limitations to DNA evidence; (3) failing to challenge whether the jury panel was made up of a fair cross section of the community; (4) wrongly advising Jones regarding possible impeachment based on his prior convictions and, as a result, wrongly advising Jones not to testify in his own defense.  He asks that we consider the cumulative effect of trial counsel’s errors.  OPINION HOLDS: Because the PCR court did not abuse its discretion in denying Jones’s request for the appointment of another attorney to act as a legal expert regarding his claims of ineffective assistance and because Jones has not established any of his claims of ineffective assistance of trial counsel, we affirm the denial of his application for PCR.

Case No. 18-0282:  Neuman v. State

Filed Jul 24, 2019

View Opinion No. 18-0282

            Appeal from the Iowa District Court for Black Hawk County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            James Neuman appeals the dismissal of his lawsuit.  OPINION HOLDS: Although we could summarily dismiss the appeal based on Neuman’s violations of our appellate rules, we decline to do so.  We agree with the district court’s well-reasoned analysis and disposition of the case and affirm without further opinion, noting that we cannot grant Neuman the relief he requests even if he succeeded on appeal. 

Case No. 18-0322:  Devon Lukinich v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0322

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (16 pages)

            Devon Lukinich appeals the denial of his postconviction-relief (PCR) application.  He argues trial counsel provided ineffective assistance by (1) failing to have a ballistics expert testify; (2) failing to object when the prosecutor improperly stated during closing arguments that BB guns are dangerous weapons “under the law”; (3) failing to object to instructions and arguments that the shotguns stolen during the robberies met the “dangerous weapon” requirement; and (4) failing to present an expert witness at sentencing regarding Lukinich’s brain maturity.  OPINION HOLDS:  Trial counsel was not ineffective. No evidence suggests a different ballistics expert’s testimony would be meaningfully different from the testimony offered by the State’s expert.  No prejudice resulted from failing to object to the prosecutor’s statements during closing arguments.  Trial counsel did not breach an essential duty by failing to object to the shotgun-related jury instructions.  Trial counsel did not breach an essential duty by failing to hire a brain maturity expert witness because Lukinich was not a juvenile at the time the robberies occurred.  We affirm.

Case No. 18-0330:  State of Iowa, ex rel., I.M. and S.A. v. Darrell L. McBride

Filed Jul 24, 2019

View Opinion No. 18-0330

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

            Darrell McBride appeals the district court’s denial of his motion to quash the district court’s income-withholding order related to past due child support obligations, asserting he was denied due process and equal protection.  OPINION HOLDS:  Because McBride failed to preserve his constitutional claims, we affirm.

Case No. 18-0422:  In re the Marriage of Dirkx

Filed Jul 24, 2019

View Opinion No. 18-0422

            Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            Nora Dirkx appeals the district court’s decree dissolving her marriage to Daniel Dirkx, challenging the district court’s calculation of their respective incomes, as well as its fusing of the child support and alimony awards.  OPINION HOLDS: Because we find the support orders to be inequitable, we remand for the court to amend the decree to fix traditional spousal support at $900 per month and to recalculate Daniel’s child support obligation.  We affirm the decree in all other respects.

Case No. 18-0571:  Ricky Lee Putman v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-0571

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            A postconviction-relief applicant argues his trial counsel was ineffective for failing to adequately advise him on his right to testify in his own defense and for failing to keep him informed on the defense strategy, thereby depriving him of the ability to meaningfully participate in his defense.  The district court denied the application for postconviction relief.  OPINION HOLDS: On our review, we conclude trial counsel did not fail to perform an essential duty by advising his client not to testify or by exercising his judgment in choosing the defense strategy.

Case No. 18-0584:  Dan Charleston v. Polk County Civil Service Commission

Filed Jul 24, 2019

View Opinion No. 18-0584

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (13 pages)

            Former Polk County Sergeant Dan Charleston appeals the district court decision affirming the Polk County Civil Service Commission’s (commission) affirmance of the Sheriff’s termination of Charleston’s employment.  OPINION HOLDS: Because we find substantial evidence supporting the commission’s decision, and because Charleston did not present direct and compelling evidence to overcome the presumption of honesty and integrity in the commissioners, we affirm the decision of the district court.

Case No. 18-0625:  In re the Marriage of Matherly

Filed Jul 24, 2019

View Opinion No. 18-0625

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (24 pages)

            Former spouses appeal and cross-appeal the financial provisions of their dissolution-of-marriage decree.  Trustee appeals the dismissal of claims against the husband relating to the wife’s trust.  OPINION HOLDS: We find Carl Matherly created a resulting trust in favor of his daughter, MaryBeth Slezak, when he transferred the assets of her trust into an investment account without her consent.  The resulting trust is not marital property and not subject to the court’s division of the marital estate.  We find the trial court’s division of the marital estate equitable, taking into consideration the factors under Iowa Code section 598.21(5) (2016) and the circumstances in this case.  We further find Steven Matherly’s claims against Carl relating to Maribel Matherly’s trust are barred under Iowa Code section 633A.4506.  Based upon these findings, we affirm the trial court’s decision in its entirety.  We decline to award appellate attorney fees.  Costs on appeal are assessed one-third to Maribel’s estate, one-third to Carl, and one-third to the Maribel Matherly Trust.

Case No. 18-0738:  NPZ, Inc. d/b/a ZTraps v. Ultra Image Powder Coating and Altra Corporation, d/b/a Ultra Image Powder Coating

Filed Jul 24, 2019

View Opinion No. 18-0738

            Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.  REVERSED AND REMANDED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (18 pages)

            Live-trap manufacturer N.P.Z., Inc. (ZTraps) appeals the district court’s dismissal of its suit against Ultra Image Powder Coating (Altra), arguing the court erroneously concluded it lacked specific personal jurisdiction over Altra.  OPINION HOLDS: Because Altra purposely directed activities at Iowa, and because the litigation arises out of or relates to those activities, Altra’s contacts with Iowa are sufficient to subject it to personal jurisdiction.  And we do not believe subjecting Altra to suit in Iowa offends traditional notions of fair play and substantial justice.  Accordingly, we reverse the district court’s dismissal and remand for further proceedings.

Case No. 18-0742:  City of St. Lucas v. Dennis Herbert Langreck

Filed Jul 24, 2019

View Opinion No. 18-0742

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl and Margaret L. Lingreen, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Dennis Langreck appeals the district court’s decision ordering him to remove a building and pay damages.  OPINION HOLDS: We conclude the district court did not err by granting summary judgment to the City on Langreck’s counterclaims for quiet title or adverse possession.  We also conclude the court did not err in granting an injunction to the City requiring Langreck to move a shed.  We affirm the decision of the district court.

Case No. 18-0812:  Thaddeus Jeremiah Zimmerman v. Jamie Kay Zimmerman

Filed Jul 24, 2019

View Opinion No. 18-0812

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Thaddeus (T.J.) Zimmerman appeals the physical care provisions of the decree dissolving his marriage to Jamie Zimmerman.  OPINION HOLDS: We decline to modify the physical care arrangement or award T.J. additional visitation.  Because T.J. seeks a modification of the child support award only if we modify the physical care arrangement, we need not address this issue.  We affirm the dissolution decree in its entirety.

Case No. 18-0834:  Heartland Co-Op v. Ronald Nelson

Filed Jul 24, 2019

View Opinion No. 18-0834

            Appeal from the Iowa District Court for Crawford County, Tod Deck, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (16 pages)

            Ronald Nelson appeals from the judgment entered against him following a jury trial, where the jury determined he was the successor-in-interest and mere continuation of Broken Wing Farms, Inc., against which Heartland Co-op had obtained a judgment in 2014 for $810,021.95 with 3.25% interest.  On appeal, Nelson argues he was wrongly prevented from challenging Broken Wing’s debt to Heartland and that the district court erred by allowing the arbitration award against Broken Wing to have preclusive effect on the successor-liability claim against him personally.  He also disputes the district court’s rulings on two jury instructions and maintains the court should have granted his motion for directed verdict because there was insufficient evidence to submit the question of his successor liability to the jury.  OPINION HOLDS: Having reviewed each of Nelson’s claims and finding no reversible error, we affirm.

Case No. 18-0915:  State of Iowa v. Jamie Michael Ubben

Filed Jul 24, 2019

View Opinion No. 18-0915

            Appeal from the Iowa District Court for Grundy County, Jeffrey L. Harris, District Associate Judge, and Bradley J. Harris, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (13 pages)

            A defendant challenges on appeal, after trial to the court on the minutes, the district court’s denial of his motion to suppress evidence of a gun found during an inventory search of his vehicle, and failure to suppress his refusal to take a breathalyzer test due to a claimed violation of his statutory right to make phone calls pursuant Iowa Code section 804.20 (2016).  OPINION HOLDS: The district court properly denied the motion to suppress: when it determined (1) the evidence of gun was admissible based on ultimate discovery rule; and (2) the officer complied with the requirements of section 804.20 and, even if the officer failed to comply, not suppressing evidence of denial of breathalyzer was harmless error in light of other overwhelming evidence of the defendant’s intoxication.

Case No. 18-0979:  Roberta R. Countryman, Trustee of the Ronald W. Woodbury Generation Skipping Trust v. Charles B. Lex

Filed Jul 24, 2019

View Opinion No. 18-0979

            Appeal from the Iowa District Court for Webster County, William C. Ostlund, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

Charles B. Lex appeals from a ruling ordering him to fix obstructed drainage tile located below his property.  He contends the district court should not have found an easement on subsurface tiling from a neighboring property onto his property.  In the event of an affirmance, Lex asks that the ruling be amended to assess future costs associated with tile maintenance to the neighbor.  OPINION HOLDS: We affirm the district court’s order for injunctive relief in the form of replacement of the tiles.  Further, the issue of future tile costs was not raised or decided below, and therefore, resolution of the issue is premature.

Case No. 18-0989:  State of Iowa v. Carlos Augusto Ramirez Lopez

Filed Jul 24, 2019

View Opinion No. 18-0989

            Appeal from the Iowa District Court for Muscatine County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            Defendant appeals the jury’s guilty verdict and the trial court’s denial of his motion for new trial based on his claim the complaining witness’s recantation of the allegation of sexual abuse at trial constitutes the greater weight of the evidence against his conviction.  OPINION HOLDS: The jury heard all of the evidence and determined the credibility of the witnesses regarding the recantation.  The trial court did not abuse its discretion in denying the defendant’s motion for new trial.

Case No. 18-1077:  Sara Jane Gustafson v. Tracey Bell and Shelly Towne

Filed Jul 24, 2019

View Opinion No. 18-1077

            Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Sara Gustafson appeals from the district court’s summary dismissal of her claims against Tracey Bell and Shelly Towne for defamation, abuse of process, malicious prosecution, and intentional infliction of emotional distress.  Gustafson maintains the district court erred because there are genuine issues of material fact in dispute that preclude the summary dismissal of each of her claims.  OPINION HOLDS: We agree with the district court that each of Gustafson’s claims fails as a matter of law.  We affirm the summary dismissal of each of her claims.

Case No. 18-1092:  Anthony Roland v. Annett Holdings, Inc.

Filed Jul 24, 2019

View Opinion No. 18-1092

            Appeal from the Iowa District Court for Polk County, Karen Romano, Judge.  AFFIRMED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Gamble, S.J., takes no part.  Opinion by Tabor, J.  (13 pages)

            Annett Holdings appeals the district court’s order certifying Anthony Roland’s class action, arguing the case presents no common question of fact or law and individual issues predominate over those common to the class.  OPINION HOLDS: Because we find no abuse of discretion in the district court’s conclusion a question common to all class members, the legality of the Memorandum of Understanding, lies at the heart of the dispute, or in its conclusion that common issue predominates over the individual issues involved, we affirm and remand for further proceedings.

Case No. 18-1118:  Sheryl Schwab v. Jennifer Zahradnik

Filed Jul 24, 2019

View Opinion No. 18-1118

            Appeal from the Iowa District Court for Benton County, Lars G. Anderson, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Sheryl Schwab appeals the district court’s grant of summary judgment in her legal malpractice action against Jennifer Zahradnik.  Schwab claims Zahradnik provided negligent legal representation by failing to preserve her rights to her ex-spouse’s potential medical-malpractice claim, her right to file a loss-of-consortium claim, and a right to reimbursement for insurance premiums paid during the dissolution.  OPINION HOLDS: We affirm the district court dismissal of Schwab’s legal malpractice claims.

Case No. 18-1129:  Mau Family Limited Partnership v. Property Assessment Appeal Board and Dickinson County Board of Review

Filed Jul 24, 2019

View Opinion No. 18-1129

            Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (14 pages)

            Property owner Mau Family Ltd. Partnership appeals the district court’s judicial-review order affirming the Property Assessment Appeal Board’s (PAAB) valuation of its properties between East Lake and West Lake Okoboji, arguing there were various errors in PAAB’s assessment and it is not supported by substantial evidence.  OPINION HOLDS: Because we find no merit in the alleged errors and the valuation was supported by substantial evidence, we affirm.

Case No. 18-1171:  JLL LLC v. City of Cedar Falls, et al.

Filed Jul 24, 2019

View Opinion No. 18-1171

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J., but decided by Vaitheswaran, P.J., Mahan, S.J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            JLL LLC appeals the district court’s order on its application for attorney fees and costs following a condemnation action by the City of Cedar Falls.  OPINION HOLDS: We affirm the district court’s ruling on taxation of costs.

Case No. 18-1200:  David and Rachael Sokol v. Robert and Eileen Morrissey

Filed Jul 24, 2019

View Opinion No. 18-1200

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

            Homebuyers David and Rachael Sokol appeal an adverse ruling in their lawsuit against seller Bob Morrissey alleging breach of the implied warranty of good and workerlike construction.  OPINION HOLDS: Because we find substantial evidence supporting the district court’s conclusion the Sokols could have reasonably identified the claimed defects before purchasing the home, we affirm.

Case No. 18-1294:  John L. Hintermeister v. Belin McCormick, PC, Nathan J. Barber, Riverview Hotel Development, LLC d/b/a Merrill Hotel & Conference Center, and MLC Land Company, LLC

Filed Jul 24, 2019

View Opinion No. 18-1294

            Appeal from the Iowa District Court for Muscatine County, Patrick McElyea, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (12 pages)

            Plaintiff John Hintermeister appeals the district court decision granting summary judgment to defendants Nathan Barber, Belin McCormick, P.C., Riverview Hotel Development, LLC, and MLC Land Company, LLC for his claims of tortious interference with business relations and intentional infliction of emotional distress. The district court determined the litigation privilege applied to the defendants’ conduct and granted their motion for summary judgment. OPINION HOLDS:  We determine the district court properly granted the defendants’ motion for summary judgment. 

Case No. 18-1399:  Cassandra Rena McConkey on Behalf of B.M. v. Kevin Charles Huisman

Filed Jul 24, 2019

View Opinion No. 18-1399

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Vogel, S.J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (10 pages)

            Cassandra McConkey, the mother of a child, appeals the district court’s denial of her petition for relief from sexual abuse filed on behalf of the child against the child’s father, Kevin Huisman.  She contends (1) she met her burden of proving Huisman sexually abused the child and (2) the district court should have excluded Huisman’s expert witness for failure to disclose her.  OPINION HOLDS: We find the second issue dispositive.  Given the prejudice to McConkey of Huisman’s expert non-disclosure, we reverse and remand for a new trial on McConkey’s petition.  We also remand for a hearing on the reasonableness of McConkey’s attorney fee request.

Case No. 18-1410:  In re the Marriage of Nelson and Epari

Filed Jul 24, 2019

View Opinion No. 18-1410

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Alok Epari appeals the district court’s order modifying the physical care and visitation provisions of the decree dissolving his marriage with Renee Nelson, formerly Renee Epari.  OPINION HOLDS: We affirm the district court ruling granting Renee physical care of the children, and affirm as modified the visitation schedule. 

Case No. 18-1460:  Estate of Wilbur M. Arnold, William D. Arnold v. Bruce C. Arnold, Individually and as Executor, Karen L. Heuer, as Executor, Steven C. Arnold, as Executor, BCA Farmland Corporation, Arlys L. Arnold, Don R. Arnold, Lance J. Arnold, Mary A. Arnold, and Warren J. Arnold

Filed Jul 24, 2019

View Opinion No. 18-1460

            Appeal from the Iowa District Court for Hancock County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Vogel, S.J.  Opinion by Tabor, J.  (9 pages)

            William Arnold sued members of his family for tortious interference and undue influence resulting in him not receiving a bequest of the family farmland from his aunt and uncle.  The district court granted the defendants summary judgment.  William appeals.  OPINION HOLDS: Because the evidence William brings is no more than speculative about the influence the defendants may have had on the deceased, the grant of summary judgment was proper, and we affirm. 

Case No. 18-1491:  In re the Marriage of Olsen

Filed Jul 24, 2019

View Opinion No. 18-1491

            Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            James Olsen appeals the district court’s award of alimony to Deora Olsen.  James Olsen argues the district court improperly calculated both his and Deora’s incomes and improperly awarded Deora alimony of $300 per month for five years and then $250 per month for another five years.  Deora Olsen requests appellate attorney fees.  OPINION HOLDS: We affirm the district court’s award of alimony and its calculation of James’s income.  We decline to award Deora appellate attorney fees.

Case No. 18-1621:  In re the Marriage of Flemming

Filed Jul 24, 2019

View Opinion No. 18-1621

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Brandy Flemming-Jess appeals from an order modifying the child-support provisions of the decree dissolving her marriage to Matthew Flemming.  She argues Matthew is not entitled to a reduction of his child-support obligation because he voluntarily reduced his income.  OPINION HOLDS: Upon our de novo review, we agree modification is appropriate under the facts of this case and we affirm.

 

Case No. 18-1629:  Terry Tilton v. H.J. Heinz Company and Liberty Mutual Ins. Co.

Filed Jul 24, 2019

View Opinion No. 18-1629

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            H.J. Heinz Company (Heinz) and its workers’ compensation insurance carrier appeal a district court ruling on Terry Tilton’s petition for judicial review of a determination of the workers’ compensation commissioner remanding the matter to the agency for further proceedings.  Heinz argues the district court erred in concluding the agency determination is unsupported by substantial evidence and was based upon an irrational, illogical, or wholly unjustifiable application of law to fact.  OPINION HOLDS: We find the agency determination that Tilton’s claim for benefits is barred by the application of Iowa Code section 85.23 (2015) was not the product of an irrational, illogical, or wholly unjustifiable application of law to fact.  We further find the agency determination of September 8, 2010 as the manifestation date is not supported by substantial evidence in the record.  We affirm in part and reverse in part the district court, and we remand the matter to the district court for the entry of an order to reverse the agency and remand for further proceedings consistent with this opinion.

Case No. 18-1654:  Tylan James DeBeir v. State of Iowa

Filed Jul 24, 2019

View Opinion No. 18-1654

            Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Tylan DeBeir appeals the denial of his application for postconviction relief (PCR) and alleges his PCR counsel provided ineffective assistance.  OPINION HOLDS: Our current record is insufficient to consider DeBeir’s ineffective-assistance claim.  We affirm the PCR court and preserve DeBeir’s claim for a possible future PCR proceeding.

Case No. 18-1692:  Romano Gaye v. Hot Service, LLC & Hasan Omerdic

Filed Jul 24, 2019

View Opinion No. 18-1692

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (4 pages)

            Hot Service, LLC and Hasan Omerdic appeal following a bench trial, alleging the trial court erred in its calculation of damages.  OPINION HOLDS: There is substantial evidence to support the trial court’s findings, and we discern no errors of law.

Case No. 18-1706:  Larry J. Hoover v. Andrew B. Reed

Filed Jul 24, 2019

View Opinion No. 18-1706

            Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (4 pages)

            Larry Hoover appeals the dismissal of his civil petition on untimely-service grounds, contending the court erred in concluding he did not establish good cause for the delay in service.  OPINION HOLDS: We affirm the dismissal of Hoover’s petition.

Case No. 18-1707:  In re the Marriage of Vesey

Filed Jul 24, 2019

View Opinion No. 18-1707

            Appeal from the Iowa District Court for Dallas County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A father, Christopher Vesey, appeals the district court decision granting his former spouse Kelly's petition to modify their custody arrangement making her primary caregiver.  OPINION HOLDS: Because we find Kelly demonstrated a material and substantial change in circumstance not contemplated by the district court at the time of the original decree,  more or less permanent, in the best interest of the children, and she was better suited to continue taking care of the children's needs, we affirm the decision of the district court.

Case No. 18-1740:  Dexter Financial Services, Inc. v. Platt Laundromat LLC, Fakhreddin Bilbeisi, Naheel Bilbeisi, Ann Arbor Driving School Inc. and Platt Road Center LLC

Filed Jul 24, 2019

View Opinion No. 18-1740

            Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (2 pages)

            Appellants appeal an adverse summary-judgment ruling.  OPINION HOLDS: We conclude summary judgment was proper.  We affirm. 

Case No. 18-1788:  Ralph G. Hemesath v. County Line Bar and Grill and Sean McDermott

Filed Jul 24, 2019

View Opinion No. 18-1788

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Ralph Hemesath appeals the district court order granting summary judgment for the defendants on his negligence claim.  OPINION HOLDS: There is insufficient evidence to allow a reasonable person to find the defendants acted negligently.  The defendants are thus entitled to summary judgment. 

Case No. 18-1802:  John Dzian v. Menard, Inc.

Filed Jul 24, 2019

View Opinion No. 18-1802

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

            John Dzian appeals from the district court’s pre-answer dismissal of his tort claim.  OPINION HOLDS: The district court did not err in granting the defendant’s pre-answer motion for dismissal when the Dzian failed to serve the defendant within ninety days and no good cause justified the delay.

Case No. 18-1808:  In re the Marriage of Parlee

Filed Jul 24, 2019

View Opinion No. 18-1808

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Bower, J.  (8 pages)

            Jonathan Parlee appeals the economic and spousal support provisions of the decree dissolving his marriage to Pamela Parlee.  Jon asserts the district court miscalculated the parties’ income, resulting in an inequitable spousal support award.  He also objects to the court’s valuations of property items, the property distribution, and the award of trial attorney fees.  Finally, he requests an award of appellate attorney fees.  OPINION HOLDS: The court carefully considered the parties’ positions and correctly applied the law.  On our de novo review, we find no failure to do equity and therefore affirm.  We deny his request for appellate attorney fees.

Case No. 18-1843:  State of Iowa v. Douglas Earl Hutchison

Filed Jul 24, 2019

View Opinion No. 18-1843

            Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J. (6 pages)

            Douglas Hutchison appeals from judgment and sentence entered following the denial of his motion to suppress and a trial on the minutes of evidence.  OPINION HOLDS: We conclude the district court erred in applying the community-caretaking exception to deny the motion to suppress.  We reverse the conviction and remand. 

Case No. 18-1899:  In re the Marriage of Weiler

Filed Jul 24, 2019

View Opinion No. 18-1899

            Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Matthew Weiler appeals the district court’s modification of the visitation provisions of the parties’ dissolution decree.  OPINION HOLDS: We find modification was appropriate.  We also affirm the award of Sherri’s trial attorney fees and award Sherri appellate attorney fees.

Case No. 18-1901:  In the Interest of C.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 18-1901

            Appeal from the Iowa District Court for Benton County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            The father appeals the termination of his parental rights in a private termination proceeding.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  Therefore, we affirm.

Case No. 18-1906:  In the Interest of K.B., Minor Child

Filed Jul 24, 2019

View Opinion No. 18-1906

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (3 pages)

            K.B. appeals the juvenile court order requiring him to register on the Iowa Sex Offender Registry.  OPINION HOLDS: The juvenile court properly exercised its discretion in declining to waive or suspend the registration requirement. 

Case No. 18-2071:  Paten A. Proesch v. Gilbert J. Eggers

Filed Jul 24, 2019

View Opinion No. 18-2071

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED AND REMANDED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (9 pages)

            Gilbert Eggers appeals from a district court order awarding physical care of his child to the child’s mother, Paten Proesch.  OPINION HOLDS: Because the district court ruled on and decided the physical care issue, we agree with Gilbert that the issue was properly preserved for appellate review.  Upon our de novo review of the record, we find the district court gave thorough reasons for why it determined it is in the child’s best interests to be placed in Paten’s physical care.  Considering all of the relevant factors and the court’s credibility findings, we agree with its determination.  Consequently, we affirm the court’s order placing physical care of the child with Paten.  And we agree with Paten that Gilbert failed to preserve his claim of constitutional error for appellate review because he did not raise the issue before the district court or file an Iowa Rule of Civil Procedure 1.904(2) motion to amend or enlarge the court’s ruling asking the court to address his claim of constitutional error.  We therefore do not address the issue.  Finally, we conclude Paten should be awarded attorney fees for having to defend herself here, and we remand to the district court to determine the amount of appellate attorney fees to be awarded to Paten.  Any costs on appeal are assessed to Gilbert.

Case No. 18-2115:  Bartley Daniel Black v. Stacia Leigh Newlin

Filed Jul 24, 2019

View Opinion No. 18-2115

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            A mother appeals from the decree of paternity, custody, visitation, and support.  OPINION HOLDS: On our de novo review, we affirm the award of joint physical care.

Case No. 18-2126:  Carroll Area Nursing Services and The Cincinnati Insurance Companies v. Amy Malloy

Filed Jul 24, 2019

View Opinion No. 18-2126

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            An employer appeals the district court decision affirming the award of healing period benefits by the workers’ compensation commissioner.  OPINION HOLDS:  We find there is substantial evidence in the record to support a finding the employee came within the personal-vehicle exception to the coming-and-going rule and was not engaged in a deviation from the course of employment at the time of the accident.  We affirm the district court and the workers’ compensation commissioner.

Case No. 18-2246:  Mid-American Glazing Systems, Inc. v. Cladding Corporation

Filed Jul 24, 2019

View Opinion No. 18-2246

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Greer, J.  (5 pages)

            The district court dismissed an Iowa corporation’s breach-of-contract claim because a forum selection clause in the contract designated the state or federal court in Virginia as the proper forum.  On appeal, the corporation challenges the clause’s enforceability.  OPINION HOLDS: We conclude the forum selection clause is enforceable and this Iowa action should be dismissed. 

Case No. 19-0162:  In the Interest of T.P., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0162

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (11 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-0255:  In the Interest of S.K., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0255

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A mother appeals the termination of her parental rights to one child, challenging the statutory grounds for termination.  OPINION HOLDS: We conclude the State showed by clear and convincing evidence that the child cannot be returned to the mother’s custody at this time.  Accordingly, we affirm termination of her parental rights. 

Case No. 19-0352:  In the Interest of A.W. and B.W., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0352

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by Potterfield, P.J.  (9 pages)

            The guardian ad litem for A.W. and B.W., the minor children at issue, appeals the juvenile court’s denial of the petition to modify the dispositional order and dismissal of the children-in-need-of-assistance (CINA) adjudication.  OPINION HOLDS: We agree the CINA adjudications should not have been dismissed; we reverse the juvenile court’s ruling dismissing the CINA adjudications.  Additionally, though the State met the grounds for modification at the time of the hearing, we do not believe making a change now based on the facts and circumstances from several months ago is in the children’s best interests.  We remand for a hearing on the motion to modify the dispositional order; the juvenile court is to determine the appropriate placement of the children on the facts existing at the time of the new hearing.

Case No. 19-0413:  In the Interest of W.C., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0413

            Appeal from the Iowa District Court for Allamakee County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (6 pages)

            J.B. appeals the juvenile court’s decision denying his request to intervene in child in need of assistance proceedings.  OPINION HOLDS: J.B. did not preserve error on his claims regarding discovery or the recusal of the judge.  We determine the juvenile court did not err in denying J.B.’s application to intervene.  We affirm.

Case No. 19-0557:  In the Interest of A.B., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0557

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother appeals a district court order terminating her parental rights to her child, born in 2016.  She contends (1) the record lacks clear and convincing evidence to support the grounds for termination cited by the court; (2) the department of human services did not make reasonable reunification efforts; and (3) termination is not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her child.

Case No. 19-0598:  In the Interest of M.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0598

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

            A mother appeals a district court order terminating her parental rights to her child, contending the record lacks clear and convincing evidence to support the grounds for termination cited by the court.  OPINION HOLDS: We conclude the State proved that the child cannot be returned to the mother’s custody as required by Iowa Code section 232.116(1)(h) (2018).  We affirm the juvenile court’s termination of her parental rights to the child.

Case No. 19-0605:  In the Interest of A.H., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0605

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm.   

Case No. 19-0628:  In the Interest of I.D., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0628

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

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: The State proved the grounds for termination by clear and convincing evidence, and termination is in the child’s best interests.  We decline to apply any of the statutory permissive factors to avoid termination, and we deny the mother’s request for a six-month extension. 

Case No. 19-0630:  In the Interest of K.A., K.M., and K.P., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0630

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A mother appeals the district court’s separate orders terminating her parental rights to her three children K.A., K.M., and K.P.  She argues terminating her parental rights is not in the children’s best interest and she should have instead been given additional time to work toward reunification.  OPINION HOLDS: On de novo review, we conclude termination of the mother’s parental rights to the children is in their best interest.  The mother has not addressed her substance-abuse issue.  She has also failed to address concerns over mental health, domestic violence, and housing.  There is no evidence termination would be detrimental to the children.  No evidence suggests the mother would be able to correct these issues if given another six months to work toward reunification.  We affirm.

Case No. 19-0650:  In the Interest of K.G., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0650

            Appeal from the Iowa District Court for Benton County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            A mother appeals an order modifying the permanency goal in a child-in-need-of-assistance proceeding.  OPINION HOLDS:  We conclude the modification of the permanency goal to placement with the father is in the best interests of the child and is supported by clear and convincing evidence.  The juvenile court did not abuse its discretion in denying the mother’s request to submit written closing arguments.  We affirm the decision of the juvenile court.

Case No. 19-0715:  In the Interest of I.P., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0715

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Foster parents Brad and Bobbi argue the juvenile court should have granted their motion to remove the Iowa Department of Human Services (DHS) as I.P.’s guardian.  OPINION HOLDS: Because we agree with the juvenile court’s conclusion the DHS acted in I.P.’s best interests, we affirm.

Case No. 19-0719:  In the Interest of J.B. and J.B., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0719

            Appeal from the Iowa District Court for Poweshiek County, Rose Ann Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (15 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the children’s best interests.  We affirm.   

Case No. 19-0727:  In the Interest of A.G., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0727

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            A mother and a father separately appeal the termination of their parental rights to their child, A.G.  OPINION HOLDS: Grounds for termination have been shown by clear and convincing evidence.  An extension of time to seek reunification is not warranted, termination of parental rights is in the child’s best interests, and no permissive factor weighs against termination.  We therefore affirm.

Case No. 19-0769:  In the Interest of B.W. and E.W., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0769

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to her two children, raising claims: the State failed to prove the grounds for termination cited by the juvenile court, termination is not in the children’s best interests, and the juvenile court should have declined to terminate her parental rights because the children were placed with a relative.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to her children.

Case No. 19-0772:  In the Interest of J.M., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0772

Juvenile Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            A mother appeals a child in need of assistance (CINA) permanency order.  OPINION HOLDS:  We find the juvenile court properly denied the mother’s request to dismiss or modify the permanency order placing the child in the care of the father.  We affirm the decision of the juvenile court.

Case No. 19-0777:  In the Interest of I.D. and S.D., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0777

            Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            The father appeals the termination of his parental rights to his biological child, I.D., and his legal child, S.D.  The juvenile court terminated his parental rights to both children pursuant to Iowa Code section 232.116(1)(f) and (l) (2018).  The father does not contest the statutory grounds for termination; he argues termination is not in the children’s best interests because they share a bond with him.  He also asks for additional time to work toward reunification.  OPINION HOLDS: Termination is in the children’s best interests, and the father has not established that the children are so bonded to him that we should avoid termination of his parental rights.  Additionally, because we cannot say the father could safely parent the children if given an extension to work toward reunification, we affirm.

Case No. 19-0795:  In the Interest of L.T., A.T., and D.T., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0795

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            The mother’s rights to these children were at issue at a termination-of-parental-rights hearing in November 2016.  After an extended delay, the juvenile court entered a written order in July 2018, terminating the mother’s parental rights.  The mother appealed, and in In re L.T., 924 521, 530 (Iowa 2019), our supreme court reversed the termination and remanded to the juvenile court.  The termination hearing on remand took place in April 2019, and the juvenile court again found the grounds to terminate the mother’s parental rights.  The mother appeals, arguing the Iowa Department of Human Services (DHS) failed to make reasonable efforts until the July 2018 termination order was entered and termination of her rights is not in the children’s best interests.  She also asks for additional time to work toward reunification with the children.  OPINION HOLDS: Although DHS discontinued services aimed at reunification before the written order was entered, the department did not fail to fulfill its reasonable-efforts obligation.  Additionally, we cannot further delay permanency for these children, as termination of the mother’s parental rights is in their best interests.  We affirm.

Case No. 19-0799:  In the Interest of R.S., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0799

            Appeal from the Iowa District Court for Fremont County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The juvenile court terminated the mother’s parental rights to her child, R.S., under Iowa Code section 232.116(1)(f) (2019).  On appeal, the mother argues: (1) termination is not required because the child was in the father’s care, (2) termination is not in the child’s best interests, (3) the Iowa Department of Human Services failed to provide appropriate services, and (4) the exception in Iowa Code section 232.116(3)(a) should apply since the father has legal custody.  OPINION HOLDS: Because filing a termination petition was permissible while R.S. remained in the father’s care and termination is in R.S.’s best interests, we affirm the termination of the mother’s parental rights.

Case No. 19-0804:  In the Interest of D.D., Minor Child

Filed Jul 24, 2019

View Opinion No. 19-0804

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (13 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Under the facts and circumstances of this case, the State provided reasonable services for reunification and the child could not be returned to the father’s care at the time of the termination-of-parental-rights hearing.  And even considering the father’s parole, additional time under section 232.104(2)(b) is unjustified.  We therefore affirm the order terminating the father’s parental rights.

Case No. 19-0883:  In the Interest of R.F., I.F., and A.F., Minor Children

Filed Jul 24, 2019

View Opinion No. 19-0883

            Appeal from the Iowa District Court for Blackhawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights to her three minor children.  The mother argues the State did not make reasonable efforts at reunification and challenges the sufficiency of the evidence underlying the statutory grounds for termination cited by the juvenile court.  OPINION HOLDS: We conclude the mother failed to preserve error on her reasonable-efforts challenge and the State met its burden for termination.  We affirm the termination of the mother’s parental rights.

Case No. 17-1801:  Jade E. Robinson and Shannon K. Robinson v. William A. Welp and Joyce A. Welp

Filed Jul 03, 2019

View Opinion No. 17-1801

            Appeal from the Iowa District Court for Marshall County, Steven J. Oeth, Judge.  AFFIRMED ON BOTH APPEALS AND REMANDED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (18 pages)

            Jade and Shannon Robinson purchased the home of William and Joyce Welp; the Robinsons later initiated suit against the Welps, claiming the Welps failed to disclose a number of known problems with the home.  The district court determined the Welps had a duty to disclose a snake problem pursuant to Iowa Code chapter 558A (2016) and the purchase agreement, which they breached; the court awarded the Robinsons damages in the amount of $64,216.42 and costs and attorney fees of $55,212.  On appeal, the Welps challenge the district court’s ruling, arguing the evidence does not support that there was a snake problem while they owned the home or that they had actual knowledge of any such problem.  In the alternative, they argue newly-discovered evidence presented in their post-judgment petition to vacate requires that the court’s judgment be vacated or modified.  Additionally, they contest the district court’s determination of “reasonable attorney fees,” maintaining the award of fees should be further reduced.  On cross-appeal, the Robinsons maintain the district court should have also determined that the Welps failed to properly disclose problems with leaks in an in-ground pool; they ask for additional damages.  They also urge us to find that the district court abused its discretion in reducing their attorney-fee request and ask for an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s ruling that the Welps breached their duty to disclose a snake problem on the property in question but did not breach a duty to inform the Robinsons of a past pool leak.  We also affirm the district court’s denial of the Welps’ motion to vacate and the reduced award of attorney fees to the Robinsons.  Because the purchase agreement does not preclude the recovery of appellate attorney fees, we remand to the district court for the limited purpose of an evidentiary hearing on and the fixing of appellate attorney fees.

Case No. 18-0004:  Heidi McFarland and Rachel McFarland v. Jason Rieper

Filed Jul 03, 2019

View Opinion No. 18-0004

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Heard by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (9 pages)

            Jason Rieper appeals and Heidi and Rachel McFarland cross-appeal from the jury verdict in favor of the McFarlands on their legal-malpractice claim.  Rieper represented the McFarlands in an unsuccessful adoption.  Rieper asserts emotional distress damages are not available here, the McFarlands did not establish a prima facie case for legal malpractice, and a new trial or a reduction or remittitur of the jury award is warranted due to prejudicial statements and violations of the court’s rulings.  On cross-appeal, the McFarlands assert, in the event of a new trial, evidence of the baby’s death should be admitted and we should clarify the standards for evaluating juror bias.  OPINION HOLDS: The McFarlands have not shown Rieper engaged in illegitimate conduct, as required to recover emotional distress damages in a legal-malpractice claim.  We therefore reverse and remand for entry of judgment in favor of Rieper.  Because this issue is dispositive, we do not reach the parties’ other issues.

Case No. 18-0303:  State of Iowa v. John Matthew Osborn

Filed Jul 03, 2019

View Opinion No. 18-0303

            Appeal from the Iowa District Court for Pottawattamie County, Susan K. Christensen, Judge.  AFFIRMED.  Considered by Mullins, P.J., Danilson, S.J., and Vogel, S.J.  Opinion by Danilson, S.J. (13 pages)

            John Osborn appeals from judgment and sentences imposed upon his convictions for four counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and 709.4(2)(c)(4) (2014).  Osborn contends his trial counsel was ineffective in failing to object to a witness’s testimony as beyond the scope of the minutes and the district court abused its discretion in admitting as an exhibit the criminal complaint and attached affidavit, which was offered to refute Osborn’s inference investigators rushed to judgment.  He also asserts the court imposed an illegal sentence (four concurrent terms of imprisonment), arguing multiple convictions on four counts of sexual abuse where the marshalling instructions are identical must be merged.  OPINION HOLDS: We preserve the ineffective-assistance-of-counsel claims for possible postconviction-relief proceedings.  The district court did not abuse its discretion in allowing the admission of the criminal complaint as rebuttal to the defense’s claim of a rush to judgment.  We reject the claim that an illegal sentence was imposed.

Case No. 18-0342:  State of Iowa v. John Wilfred Gibson, Jr.

Filed Jul 03, 2019

View Opinion No. 18-0342

            Appeal from the Iowa District Court for Monona County, Jeffrey L. Poulson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J. (8 pages)

            John Gibson appeals his convictions for being a felon in possession of a firearm, assault on a peace officer, two counts of child endangerment, and two counts of assault while participating in a felony.  OPINION HOLDS:  We determine Gibson’s sentence for being a felon in possession of a firearm should not be merged with his sentences for assault while participating in a felony.  We find the district court did not abuse its discretion in deciding the sentence for being a felon in possession of a firearm should run consecutively to Gibson’s other sentences, which run concurrently.  On the matter of mandatory minimum sentences for assault on a peace officer and assault while participating in a felony, we remand for a partial resentencing hearing to allow the court to exercise its discretion to determine whether the five-year minimum sentence should be imposed.

Case No. 18-0524:  State of Iowa v. Eduard Nickolas Lester

Filed Jul 03, 2019

View Opinion No. 18-0524

            Appeal from the Iowa District Court for Story County, Adria A.D. Kester, Judge.  SENTENCES VACATED IN PART.  REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., May, J., and Carr, S.J.  Opinion by Carr, S.J.  (7 pages)

            Eduard Lester appeals his sentences for two counts of robbery in the second degree and two counts of burglary in the first degree.  He appeals the provisions of his sentences that impose: fines for his robbery charges without suspending the fines, consecutive sentences, court costs and attorney fees, and law enforcement initiative surcharges.  OPINION HOLDS: We find the court did not abuse its discretion in imposing the fines or in running his sentences consecutively.  However, the court erred in imposing costs and fees without evaluating his reasonable ability to pay and in imposing law enforcement initiative surcharges for his robbery charges without statutory authorization.  Therefore, we vacate his sentences in part and remand for resentencing.

Case No. 18-0527:  In the Matter of the Estate of Helen E. Houser, Deceased.

Filed Jul 03, 2019

View Opinion No. 18-0527

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vaitheswaran, P.J.  (12 pages)

            A mother of four children died, leaving a significant estate to be distributed to her children under the terms of her will.  In this second appeal, Bonnie Forbes challenges the district court’s (A) reduction of her share of the estate, (B) refusal to reduce Woodrow Houser’s share of the estate, (C) allocation of executor fees, and (D) refusal to pay certain charges incurred for upkeep of estate assets.  OPINION HOLDS: We affirm the portion of the district court order awarding Forbes thirty-five percent of the ordinary executor fee and Lawrence Houser sixty-five percent of the fee.  We reverse the portion of the order reducing Forbes’ distributive share by $52,837.81 and remand for entry of an order increasing her distributive share by that amount.  We reverse the portion of the order declining to reduce Woodrow Houser’s distributive share by amounts owing on promissory notes and remand for entry of an order reducing his distributive share by $36,557.71 after reduction by the $38,272.29 contained in the UICCU savings account.  We reverse the denial of the charges submitted by Forbes’ son-in-law, son, and husband and remand for entry of an order requiring the executor to pay the enumerated charges.

Case No. 18-0561:  Undray Jermaine Reed v. State of Iowa

Filed Jul 03, 2019

View Opinion No. 18-0561

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., May, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            Undray Reed appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  The court found Reed established a claim of ineffective assistance of appellate counsel in his postconviction-relief proceeding, but improperly concluded it did not have authority to grant Reed relief.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-0615:  Estate of Joshua Naeve, By Its Administrators, Thad Neave and Nancye Naeve, Thad Naeve, Individually and Nancye Naeve, Individually v. FBL Financial Group, Inc.

Filed Jul 03, 2019

View Opinion No. 18-0615

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (15 pages)

            Appellants appeal a district court order granting FBL Financial Group, Inc.’s motion to dismiss appellants’ civil petition at law forwarding claims of bad faith, interference with contract, and conspiracy or aiding and abetting bad faith.  OPINION HOLDS: We affirm the dismissal of the appellants’ bad-faith claims.  We reverse dismissal of the interference-with-contract claim.  We remand for further proceedings.

Case No. 18-0864:  Doyle Kinzenbaw v. Eric Tindal and Nidey, Erdahl, Tindal & Fisher, PLC

Filed Jul 03, 2019

View Opinion No. 18-0864

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (4 pages)

            The plaintiff in a legal malpractice suit appeals from a grant of summary judgment to the attorney.  He claims the district court erred in finding the dispositive issue of the underlying dispute was fully litigated, and approved by this court, and therefore barred his current claim through issue preclusion.  The plaintiff asserts his case meets an exception to issue preclusion.  OPINION HOLDS: We agree with the district court's detailed and well-reasoned opinion.  Accordingly, we affirm the order granting summary judgment under Iowa Court Rule 21.26(1)(d).

Case No. 18-1013:  Franklin Harris v. State of Iowa

Filed Jul 03, 2019

View Opinion No. 18-1013

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (10 pages)

            Franklin Harris appeals the summary disposition of his actual innocence claim asserted in his third application for postconviction relief.  Harris argues the district court erred because there are genuine issues of material in fact that preclude the summary dismissal of his claim.  OPINION HOLDS: We find the district court carefully reviewed the record under the standards for summary disposition and correctly concluded summary disposition was proper.  We further find Harris has not met his burden to prove actual innocence by clear and convincing evidence.  We affirm the summary dismissal of Harris’s actual innocence claim.

Case No. 18-1068:  Dr. Allen Diercks v. The City of Bettendorf, Iowa, and Kristine Stone

Filed Jul 03, 2019

View Opinion No. 18-1068

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (19 pages)

            Allen Diercks appeals the district court’s denial of his claim based on the alleged failure of the City of Bettendorf and City Attorney Kristine Stone to provide documents pursuant to Iowa Code chapter 22 (2017) (the Iowa Open Records Act).  OPINION HOLDS: Because the district court erred in concluding the records requested were not public records, we reverse and remand for further proceedings.  We leave it to the district court on remand to consider the City’s claims of privilege and that statutory exceptions to disclosure exist. 

Case No. 18-1108:  In re the Marriage of Deutmeyer

Filed Jul 03, 2019

View Opinion No. 18-1108

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            A petitioner appeals the denial of his petition to modify the custodial provisions of a dissolution decree.  OPINION HOLDS: The custodial provisions should not be modified because petitioner failed to show he could provide the child at issue with superior care.

Case No. 18-1188:  State of Iowa v. Brandon Ray Ross

Filed Jul 03, 2019

View Opinion No. 18-1188

            Appeal from the Iowa District Court for Calhoun County, Kurt L. Wilke, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., Doyle, J., and Gamble, S.J.  Opinion by Gamble, S.J. (6 pages)

            Brandon Ross appeals the sentence imposed following the revocation of three deferred judgments.  Ross claims the sentencing court did not exercise its discretion in revoking deferred judgment and imposing prison sentences.  OPINION HOLDS: The district court failed to exercise its sentencing discretion and, instead, applied a fixed sentencing policy.  We vacate the sentencing order and remand for resentencing.

Case No. 18-1213:  In re the Marriage of Timmons

Filed Jul 03, 2019

View Opinion No. 18-1213

            Appeal from the Iowa District Court for Clarke County, Richard B. Clogg, Judge.  AFFIRMED AND REMANDED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (2 pages)

            Matthew Timmons appeals the denial of his petition to modify the child- and spousal-support provisions of a dissolution-of-marriage decree and the award of attorney fees to Kari Timmons.  OPINION HOLDS: We affirm without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a).  We remand the matter to the district court to determine the reasonable amount of appellate attorney fees to be paid by Matthew to Kari and to enter judgment against Matthew and in favor of Kari in that amount.

Case No. 18-1240:  Jar Farms LTD, Paul W. Thieschafer, Individually, and Paul W. Thieschafer, Amy Thieschafer and Paul Thieschafer as Co-Trustees of the Bernus A. Thieschafer Family Trust v. Certified Materials, Inc.

Filed Jul 03, 2019

View Opinion No. 18-1240

            Appeal from the Iowa District Court for Mills County, Jeffrey L. Larson, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (11 pages)

            Certified Materials, Inc. appeals the district court order granting JAR Farms, LTD a prescriptive easement over portions of its property.  OPINION HOLDS: I. JAR Farms failed to establish by clear and convincing evidence that express notice was given of any claim of right to any portion of the land now owned by Certified Materials.  Because the lack of this requisite element is fatal to JAR Farms’s claim to a prescriptive easement, we reverse the district court on this issue.  II. We reject the claim that JAR Farms sought a temporary injunction in bad faith and, therefore, affirm the district court on this issue.  III. We decline to award appellate attorney fees.

Case No. 18-1258:  State of Iowa v. Kevin Dwayne Garvin

Filed Jul 03, 2019

View Opinion No. 18-1258

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  ORDER VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

Kevin Garvin appeals restitution-related orders following his criminal conviction.  OPINION HOLDS: We vacate the court’s imposition of correctional fees against Garvin pending completion of a final restitution order and a subsequent assessment of his reasonable ability to pay.  We remand the matter to the district court for receipt of a final restitution plan and a determination of Garvin’s reasonable ability to pay.

Case No. 18-1271:  In the Matter of the Trust Under the Will of W.H. Daubendiek

Filed Jul 03, 2019

View Opinion No. 18-1271

            Appeal from the Iowa District Court for Palo Alto County, Donald E. Courtney, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Billy Joe Daubendiek, a/k/a Billy Joe Daubendeck, appeals a district court ruling concluding he has no interest in a trust created by W.H. Daubendiek’s will.  OPINION HOLDS:  Under the terms of the will, the beneficiaries of the trust are (1) the named beneficiaries and (2) their “lawful bodily issue.”  Billy Joe is the adopted child of a named beneficiary.  As a matter of law, the phrase “lawful bodily issue” only extends to biological children, not adopted children.  Therefore, Billy Joe has no interest in the trust.

Case No. 18-1279:  Employers Mutual Casualty Company v. John H. Smith

Filed Jul 03, 2019

View Opinion No. 18-1279

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J., but decided by Vaitheswaran, P.J., Mahan, S.J., and Vogel, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Employers Mutual Casualty Company appeals from the ruling granting John H. Smith summary judgment in its breach-of-contract action.  OPINION HOLDS: The district court erred in entering summary judgment for Smith because there is no identity of issues that would warrant the application of defensive issue preclusion.  We reverse and remand for further proceedings.   

Case No. 18-1283:  State of Iowa v. Thomas Jeremy Lopez

Filed Jul 03, 2019

View Opinion No. 18-1283

            Appeal from the Iowa District Court for Tama County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            Thomas Lopez appeals his conviction of possession of a controlled substance, third or subsequent offense, and the sentence imposed.  He argues the district court erred in enhancing his sentence with a conviction for which he had not completed his sentence.  OPINION HOLDS: We affirm Lopez’s conviction and sentence. 

Case No. 18-1415:  Angela Chapman and Kristine Ford v. Barbara Brechler

Filed Jul 03, 2019

View Opinion No. 18-1415

            Appeal from the Iowa District Court for Clay County, Don E. Courtney, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

            Barbara Brechler appeals from the district court’s summary judgment rulings overruling her motion and sustaining the motion of Angela Chapman and Kristine Ford, her deceased husband Carl’s daughters.  OPINION HOLDS: First, we find Barbara was a proper party to the proceeding because Barbara’s right to be Carl’s designated beneficiary of his retirement account was in dispute.  Second, we agree with the district court that, under the terms of Carl and his ex-wife’s 2003 dissolution decree, to which Carl agreed, Carl’s daughters were to be named beneficiaries of the retirement account and therefore entitled to whatever funds, if any, remained in the account upon his death.  Carl’s changing the account’s beneficiary designation to Barbara was in violation of that decree.  Consequently, the district court did not error in its summary judgment rulings.  We therefore affirm the district court’s ruling sustaining Carl’s daughters’ motion for summary judgment and overruling Barbara’s motion for summary judgment.

Case No. 18-1426:  State of Iowa v. K'von Henderson

Filed Jul 03, 2019

View Opinion No. 18-1426

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  REVERSED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            K’von Henderson appeals his second-degree robbery sentence, arguing he was entitled to the benefit of an ameliorative sentencing amendment because his conviction occurred after July 1, 2016, the application date set out in the statute.  OPINION HOLDS: Because we agree Henderson was not convicted of second-degree robbery until the supreme court set aside his first-degree robbery conviction and remanded to the district court for resentencing and entry of judgment on second-degree robbery, we reverse and remand for resentencing.

Case No. 18-1468:  In re the Marriage of Rosonke

Filed Jul 03, 2019

View Opinion No. 18-1468

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            Marie Rosonke appeals from the order modifying the decree dissolving her marriage to Brian Rosonke.  OPINION HOLDS: I. We affirm the order modifying the child custody provisions of the parties’ dissolution decree to grant Brian physical care of the parties’ three children based on Marie’s move.  Because a joint physical care arrangement was no longer feasible, the court had to select one parent as physical caretaker, and the evidence supports a finding that placing the children in Brian’s care, in the only community they have called home, is in the children’s best interests.  II. The district court was not required to order the health insurance coverage offered through Marie’s employer as medical support because it does not meet the definition of “accessible” under Iowa Code 252E (2017).  III. Because Marie has not met her burden of showing the judge had a personal bias or prejudice against her that stemmed from an extrajudicial source, we find no abuse of discretion in refusing to recuse himself.  IV. We decline to award Marie appellate attorney fees.

Case No. 18-1655:  Alexa Anthony v. 60th Street III, L.C. and Professional Property Management, Inc.

Filed Jul 03, 2019

View Opinion No. 18-1655

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  May, J., takes no part.  Opinion by Vogel, S.J.  (8 pages)

            Alexa Anthony appeals from the district court orders granting motions to dismiss from both 60th Street III, L.C. (60th Street) and Professional Property Management, Inc. (PPM).  She argues good cause existed to permit her additional time to serve 60th Street and her amended petition adding PPM as a defendant properly related back to her initial petition.  OPINION HOLDS: Anthony has not shown good cause for failing to timely serve 60th Street and no state of facts exists under the petitions for PPM to know she intended to name them as defendant within the time to bring her claim.  Therefore, we affirm the dismissals of both defendants. 

Case No. 18-1724:  In re the Marriage of Drake

Filed Jul 03, 2019

View Opinion No. 18-1724

            Appeal from the Iowa District Court for Ringgold County, Thomas P. Murphy, Judge.  AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (12 pages)

            Chad Drake appeals the district court’s decree dissolving his marriage to Laura Drake.  OPINION HOLDS: Upon our de novo review, we conclude Chad’s farm expenses should have been deducted from his farm income for purposes of calculating his child support obligation, and we find his farm operation’s annual income was $3100.  Additionally, we affirm, as modified, the equalization payment ordered by the district court.  Accordingly, we affirm as modified the district court’s award of the equalization payment to Laura, and we remand the case back to the district court for recalculation of Chad’s child support obligation using the lesser farm-income figure.  We affirm the decree in all other respects.

Case No. 18-1798:  Anthony Shellito v. Morgan Kaiser

Filed Jul 03, 2019

View Opinion No. 18-1798

            Appeal from the Iowa District Court for Mills County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Anthony Shellito appeals from the district court order modifying the decree governing custody, visitation, and support of the child he shares with Morgan Kaiser.  OPINION HOLDS: Because Anthony has failed to meet his burden of showing a superior ability to minister to the child’s needs, we decline to modify the physical care provisions of the decree.

Case No. 18-1834:  In re the Marriage of Dugan

Filed Jul 03, 2019

View Opinion No. 18-1834

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (9 pages)

            Victoria Dugan appeals the child custody and support provisions of the decree dissolving her marriage to James Dugan.  OPINION HOLDS: I. The record supports the finding that granting James physical care of the parties’ six children serves the children’s best interests.  We also affirm the visitation provisions of the dissolution decree.  II. Because it is necessary to impute income to Victoria to do justice between the parties, we affirm district court’s child support calculation.  III. We decline to award Victoria spousal support on the record before us.  IV. We decline to award Victoria appellate attorney fees.

Case No. 19-0326:  In the Interest of P.S., T.S., and A.S., Minor Children

Filed Jul 03, 2019

View Opinion No. 19-0326

            Appeal from the Iowa District Court for Palo Alto County, Ann M. Gales, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (20 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-0388:  In the Interest of M.D., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0388

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Vogel, S.J.  Opinion by Mullins, P.J.  (4 pages)

            The father appeals a dispositional order in a child-in-need-of-assistance proceeding, challenging the court’s denial of his request for modification of placement and placing the child with the mother.  OPINION HOLDS: Upon our de novo review and in consideration of the best interests of the child, we conclude the court’s determination that placement with the mother is the least restrictive alternative is supported by clear and convincing evidence.  We affirm the dispositional order. 

Case No. 19-0503:  In the Interest of K.M., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0503

            Appeal from the Iowa District Court for Cedar County, Gary P. Strausser, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (11 pages)

            A mother and father appeal the juvenile court’s order terminating their parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm.  

Case No. 19-0635:  In the Interest of K.J. and K.S., Minor Children

Filed Jul 03, 2019

View Opinion No. 19-0635

            Appeal from the Iowa District Court for Plymouth County, Andrew Smith, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The State established the grounds for termination, and we find termination of the mother’s parental rights is in the children’s best interests even though each child is doing well in his and her father’s care.  Under the facts and circumstances of this case, there is no reason to apply any of the permissive factors set out in Iowa Code section 232.116(3) (2018), nor is additional time under section 232.104(2)(b) justified.  Accordingly, we affirm the order terminating the mother’s parental rights.

Case No. 19-0721:  In the Interest of J.S., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0721

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (11 pages)

            A father appeals the termination of his parental rights to his minor child, born in 2014.  He contends the State failed to make reasonable efforts at reunification, challenges the sufficiency of the evidence underlying the statutory grounds for termination cited by the juvenile court, and argues termination is not in the child’s best interests.  OPINION HOLDS: We affirm the juvenile court order terminating the father’s parental rights. 

Case No. 19-0723:  In the Interest of K.I., Minor Child

Filed Jul 03, 2019

View Opinion No. 19-0723

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, contending termination of her parental rights is not in the best interests of the child.  OPINION HOLDS: Upon our de novo review of the record, we conclude the State proved the termination of the mother’s parental rights is in the best interests of the child and we affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 17-1279:  Michael Howard Lang v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1279

            Appeal from the Iowa District Court for Woodbury County, Edward A. Jacobson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Michael Lang appeals on multiple grounds the district court’s dismissal of his application for postconviction relief filed in 2016 and his 2017 supplemental application.  OPINION HOLDS: Lang claims structural error in the court’s decision, but the record is inadequate for us to evaluate this claim.  We find most of Lang’s claims are time-barred, have been previously decided, or are otherwise not properly before this court.  We find the new evidence challenging hair analysis at trial would not have changed the result of the trial.  We affirm.

Case No. 17-1310:  Sullins v. District Court

Filed Jun 19, 2019

View Opinion No. 17-1310

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED.  Considered by Vogel, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Raymond Sullins appeals the district court ruling denying his petition to vacate the court’s decision denying his motion for a new trial.  OPINION HOLDS:  We conclude Sullins did not assert adequate grounds to grant his motion to vacate.  We affirm the decision of the district court.

Case No. 17-1574:  Daniel Samuel Jason v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1574

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Mahan, S.J.  Per Curiam.  (4 pages)

            Daniel Jason appeals the district court’s denial of his two applications for postconviction relief.  OPINION HOLDS: We affirm the court’s denial of Jason’s applications for postconviction relief.

Case No. 17-1783:  William Earl Roby v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 17-1783

            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 Mullins, J.  (13 pages)

            William Roby appeals the denial of his application for postconviction relief.  On appeal, Roby claims his trial counsel provided ineffective assistance in allowing him to plead guilty to kidnapping in the third degree when there was an insufficient factual basis to support the plea.  Roby also claims his counsel provided ineffective assistance by failing to file a motion in arrest of judgment to challenge his guilty plea to the kidnapping charge.  He contends his guilty plea was not voluntarily and intelligently made due to counsel’s ineffective assistance during plea negotiations and during the guilty-plea proceedings.  Roby also raises pro se claims based upon his right of confrontation and a post-trial motion filed after the case was appealed.  OPINION HOLDS: We find a sufficient factual basis supports Roby’s guilty plea to kidnapping in the third degree and his trial counsel did not render ineffective assistance in not challenging his properly entered guilty plea.  We further find Roby’s trial counsel did not render ineffective assistance during plea negotiations or in allowing Roby to plead guilty to the kidnapping charge.  Roby’s guilty plea waived his claim concerning his right of confrontation.  The district court committed no error by not addressing Roby’s post-trial motion.

Case No. 17-2031:  State of Iowa v. Ricky Dean Ryan

Filed Jun 19, 2019

View Opinion No. 17-2031

            Appeal from the Iowa District Court for Polk County, David M. Porter and Karen A. Romano, Judges.  AFFIRMED.  Heard by Vogel, C.J., and Carr and Gamble, S.J.  May, J., takes no part.  Opinion by Vogel, C.J.  (12 pages)

            Ricky Dean Ryan appeals after a jury found him guilty on three drug-related charges.  He challenges the denial of his motion to suppress evidence and the sufficiency of the evidence supporting his convictions.  OPINION HOLDS: A home visit was conducted to carry out a legitimate parole supervision concern, and therefore, Ryan’s motion to suppress was properly overruled.  Because Ryan was not in custody when he made incriminating statements, those statements were admissible, and sufficient evidence supports his convictions.

Case No. 18-0189:  Julie Pfaltzgraff v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-0189

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Partial Dissent by Vogel, C.J.  (6 pages)

            Julie Pfaltzgraff’s appeals the district court ruling denying her petition for judicial review, which affirmed Iowa Department of Human Services (DHS) decision confirming the existence of Child Care Assistance Program (CCAP) overpayments and the amount.  OPINION HOLDS: For the reasons set forth in Endress v. Iowa Department of Human Services, No. 18-1329, 2019 WL ________, at *___ (Iowa Ct. App. June 19, 2019), also filed today, we reverse the district court’s ruling in part because the notice the DHS provided concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient.  On this basis, we reverse the district court’s ruling on judicial review, which affirmed the agency decision regarding recoupment of CCAP overpayments and amount.  And because Pfaltzgraff is entitled to an award of her attorney fees under Iowa Code section 625.29 (2017) for the reasons set forth in Endress, we remand to the district court to determine an appropriate award, which should include appellate attorney fees.  Finally, we affirm the portion of the ruling determining that Pfaltzgraff failed to preserve error on her claim that the DHS violated its own rule in denying her second CCAP application.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: For the reasons expressed in my dissent in Endress, I dissent in part from the opinion of the majority, which found the notice to Julie Pfaltzgraff was deficient and she is entitled to attorney fees.  I agree with the majority’s conclusion that error was not preserved on the refusal to process her second application. 

Case No. 18-0427:  Jesse Neitzel v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-0427

            Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            Jesse Neitzel appeals the dismissal of his postconviction-relief (PCR) action.  Neitzel does not claim error by the PCR court.  Instead, Neitzel claims his PCR counsel was ineffective in allowing the current action to be dismissed.  OPINION HOLDS: We affirm but preserve Neitzel’s ineffective-assistance claims.

Case No. 18-0542:  Joshua Andrew Powell v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-0542

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (19 pages)

            Joshua Powell appeals from the denial of his postconviction-relief application, raising various claims of ineffective assistance of trial and appellate counsel.  OPINION HOLDS: We conclude Powell’s trial attorneys did not breach an essential duty in failing to move for a change of venue.  We also conclude Powell’s trial attorneys did not breach an essential duty in declining to present a diminished responsibility or intoxication defense, as they thoughtfully considered those issues.  Additionally, we find Powell’s trial attorneys were not ineffective in handling the testimony of the medical examiner.  Applying precedent, we further conclude Powell’s trial attorneys breached no essential duty in failing to argue his Fifth Amendment right to counsel was violated, and it follows appellate counsel was not ineffective in failing to raise the issue.  And, because substantial evidence supports a finding of malice aforethought in this case, the failure of Powell’s attorneys to challenge that element could not have been prejudicial.  We find Powell’s trial attorneys did not breach an essential duty in failing to challenge the sufficiency of the trial information, and as such it follows that appellate counsel was not ineffective in failing to raise the issue.  Moreover, we agree with the postconviction court’s conclusion that “[e]ven if the trial court erred in not granting the strike for cause,” Powell did not establish prejudice.  Finally, we conclude counsel did not breach an essential duty in failing to request a hearing on the stun device issue.  Accordingly, affirm the postconviction court’s denial of Powell’s postconviction-relief application.

Case No. 18-0597:  State of Iowa v. Jonathan James Elphic

Filed Jun 19, 2019

View Opinion No. 18-0597

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Jonathan Elphic appeals from his conviction for forgery, a class “D” felony.  Elphic maintains the district court abused its discretion when it allowed the State to reopen the record after the prosecutor indicated the State rested its case and Elphic moved for a judgment of acquittal based on insufficient evidence.  Elphic asserts his conviction should be vacated for insufficient evidence.  OPINION HOLDS:  The district court did not abuse its discretion in allowing the State to call the complaining witness to testify after the State misspoke, stating it rested.  Because the complaining witness’s testimony was properly part of the record, substantial evidence supports the jury’s verdict convicting Elphic of forgery.

Case No. 18-0759:  Willie Carroll v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-0759

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mullins, J.  (13 pages)

            Willie Carroll appeals, and the Iowa Department of Human Services (DHS) cross-appeals, a district court ruling on Carroll’s petition for judicial review partially affirming an agency determination and remanding the matter to the agency.  Carroll argues the district court erred in affirming the denial of four out of five of the skilled-nursing visits she requested to be covered by her managed-care organization because (1) the court failed “to consider whether the requested skilled nursing visits qualify as ‘restorative and maintenance home health agency services’” under Iowa Administrative Code rule 441-78.9, (2) DHS abused its discretion in using arbitrary criteria in denying the request, (3) the court erred in failing to find DHS’s decision’s negative impact on private rights is grossly disproportionate to the public interest, and (4) the factual determinations that skilled-nursing visits were not medically necessary are unsupported by substantial evidence.  On cross-appeal, DHS contends the district court erred in remanding the matter to the agency for the purpose of determining whether one of the five requested skilled-nursing visits was medically necessary.  OPINION HOLDS: Carroll has failed to preserve error on her claims concerning restorative and maintenance care, the criteria used by Amerigroup and DHS in denying the request for prior authorization, and gross disproportionality.  We find the agency determination affirming the denial of all five requested skilled-nursing visits is supported by substantial evidence.  We therefore affirm on appeal.  On cross-appeal, we reverse the district court’s remand of the matter to the agency, and we remand the matter to the district court for the entry of an order affirming the agency determination.

Case No. 18-0765:  State of Iowa v. Ken Lorenze Kuhse

Filed Jun 19, 2019

View Opinion No. 18-0765

            Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J. (8 pages)

            Ken Kuhse appeals his conviction for domestic abuse assault causing bodily injury, claiming counsel was ineffective for failing to object to the marshaling instruction, which directed the jury to find him guilty if it found the elements listed without reference to Kuhse’s justification defense.  OPINION HOLDS: Because the State’s burden to disprove Kuhse’s justification defense became an element of the offense after Kuhse produced sufficient evidence on the defense, counsel breached a material duty by failing to object to the marshaling instruction.  And because Kuhse produced sufficient evidence on the defense to raise a fact question for the jury, he was prejudiced by the faulty instruction.  Accordingly, we reverse and remand for a new trial.

Case No. 18-0784:  John Barton Goplerud, Leslie Clemenson, Lyle Hale, and Dorothy Hale v. Dallas County, Iowa, Dallas County Board of Adjustment, and Napa Valley Owners Association

Filed Jun 19, 2019

View Opinion No. 18-0784

            Appeal from the Iowa District Court for Dallas County, Dustria A. Relph, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (14 pages)

            Plaintiffs appeal the district court decision dismissing their petition for writ of certiorari challenging the decision of the Dallas County Board of Adjustment (Board) finding they were in violation of zoning ordinances and claim against the Napa Valley Owners Association (NVOA) for tortious interference with their property rights.  OPINION HOLDS: We determine the district court erred by dismissing the petition for writ of certiorari based on its finding plaintiffs had not shown they were aggrieved by the Board’s decision.  We reverse on this issue and remand for further proceedings.  We conclude the district court did not err in granting the motion to dismiss filed by the NVOA for failure to state a claim upon which relief may be granted and affirm the court’s ruling on this issue.

Case No. 18-0820:  State of Iowa v. Arthur James Mollo III

Filed Jun 19, 2019

View Opinion No. 18-0820

            Appeal from the Iowa District Court for Wright County, Paul B. Ahlers and Kim M. Riley, District Associate Judges.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Arthur Mollo III appeals from judgment and sentence entered upon his guilty plea to identity theft, contending counsel was ineffective in allowing the plea where there was no factual basis that the victim was a “person” and in failing to object to the court’s consideration of risk assessment tests in sentencing.  He also asserts the court considered an improper factor in sentencing.  OPINION HOLDS: On our review, a factual basis for the plea exists and we find no abuse of the court’s sentencing discretion.  Mollo’s ineffective assistance of counsel claim is preserved for possible postconviction proceedings.

Case No. 18-0898:  State of Iowa v. Brandon Samuel Proctor

Filed Jun 19, 2019

View Opinion No. 18-0898

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (10 pages)

            Brandon Proctor appeals his convictions of first-degree theft, eluding, driving while barred, trespass, and criminal mischief.  OPINION HOLDS:  We find the district court did not err in its decision declining to give a jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We conclude there is substantial evidence in the record to support Proctor’s convictions of first-degree theft and eluding.  We determine there is not substantial admissible evidence in the record to support Proctor’s conviction for fourth-degree criminal mischief.  We find Proctor has not shown he received ineffective assistance on his claim regarding a proposed jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We find his claim he received ineffective assistance because defense counsel did not file a motion to suppress should be preserved for possible postconviction relief.  We affirm Proctor’s convictions of first-degree theft, eluding, driving while barred, and trespass.  We reverse his conviction of fourth-degree criminal mischief and remand to the district court for a new judgment and sentencing order.

Case No. 18-0922:  Estate of Kwan Rim v. Wellmark, Inc. d/b/a Wellmark BlueCross and BlueShield of Iowa and Wellmark Health Plan of Iowa, Inc.

Filed Jun 19, 2019

View Opinion No. 18-0922

            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.  (5 pages)

The estate of Kwan Rim seeks further review from a district court decision that upheld the denial of health coverage for a large portion of an extended hospital stay in South Korea.  The estate argues (1) it was erroneous not to apply the strictures of Iowa Code chapter 17A (2016) to the external review process, (2) Rim’s insurer, Wellmark, Inc., had a duty to provide translated medical records to the independent review organization, and (3) the decision of the independent review organization should not have been affirmed.  OPINION HOLDS: Because the independent review organization is not an agency and Rim does not contest any action of the agency, the standards governing review of agency action are inapplicable.  Also, because the medical records were sufficiently intelligible to an English reader to render a coverage decision, we need not determine who should bear the costs of translation, if translation is required.  Finally, we conclude the independent review organization did not err in denying coverage for the bulk of Rim’s hospital stay.  Accordingly, we affirm the district court ruling on judicial review of the IRO’s decision.

Case No. 18-1088:  State of Iowa v. Michael A. Gill, Jr.

Filed Jun 19, 2019

View Opinion No. 18-1088

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J. (4 pages)

            Michael Gill appeals his conviction and sentence for robbery in the second degree.  On appeal, he asserts his counsel was ineffective for failing to object to a jury instruct on second-degree robbery that did not include the assault element.  OPINION HOLDS: We find Gill has not established prejudice and, therefore, his ineffective-assistance claim fails. 

Case No. 18-1153:  Arnold D. Grice v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-1153

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (3 pages)

            Arnold Grice appeals from the denial of his second application for postconviction relief following his 2007 convictions. Grice raises three issues that he raised to the second PCR court: that his first PCR counsel was ineffective in failing to raise the issues his trial counsel was ineffective (1) for not adequately explaining the strength of the evidence against him, which led him to reject a favorable plea agreement, and (2) for not raising a conflict-of-interest issue, and (3) trial counsel was ineffective for failing to further investigate the DNA evidence against him.  OPINION HOLDS: Having considered each of Grice’s claims, we affirm the PCR court’s denial of Grice’s claims without further opinion. 

Case No. 18-1329:  Terri Endress v. Iowa Department of Human Services

Filed Jun 19, 2019

View Opinion No. 18-1329

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Dissent by Vogel, C.J.  (19 pages)

            The Department of Human Services (DHS) appeals district court’s ruling on judicial review, which determined the DHS violated Terri Endress’s procedural due process rights and exceeded its statutory authority in promulgating administrative rules concerning recoupment of Child Care Assistance Program (CCAP) overpayments, and the administrative rules concerning recoupment are unconstitutionally vague.  Terri Endress cross-appeals the denial of her request for attorney fees.  OPINION HOLDS: I. The DHS violated Endress’s right to procedural due process by seeking recoupment of CCAP payments without providing adequate notice.  The notice provided to Endress concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient, and we affirm on this basis.  Accordingly, we need not address the other grounds on which the district court granted Endress’s petition for judicial review or Endress’s argument concerning unjust enrichment.  II. Although Endress appealed the DHS’s assessment of CCAP overpayments, she did not challenge the existence of a CCAP overpayment under the DHS’s rules and the amount of that overpayment.  Rather, the DHS’s promulgation of administrative rules concerning overpayment and the procedural due process it afforded Endress were at issue.  Because the agency did not adjudicate the matter on appeal, its role was not primarily adjudicative.  We reverse the district court’s determination that Endress is not entitled to attorney fees under Iowa Code section 625.29 (2018) and remand to the district court to determine an appropriate award.  DISSENT ASSERTS: I do not believe the notice from DHS to Endress violated her right to procedural due process.  I also believe Endress cannot recover attorney fees because the department’s actions were primarily adjudicative.  Therefore, I respectfully dissent.

Case No. 18-1419:  State of Iowa v. Tricia Ann Hannegrefs

Filed Jun 19, 2019

View Opinion No. 18-1419

            Appeal from the Iowa District Court for Worth County, Rustin T. Davenport, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Tricia Hannegrefs appeals her conviction for driving while barred, arguing counsel was ineffective for failing to object to jury instruction lacking State’s burden of disproving her compulsion defense.  OPINION HOLDS: Because we conclude competent counsel would have objected to the defective instruction and Hannegrefs suffered prejudice as a result of counsel’s deficiency, we reverse Hannegrefs’s conviction and remand for a new trial.

Case No. 18-1455:  Andrew Lechuga v. Heartland Co-Op, Mid-States Millwright & Builders, Inc., Mid-States Material Handling & Fabrication, Inc., O & J Enterprises, LLC, Manzano Grain Bin Services, LLC and Garcia Grain Structure, LLC

Filed Jun 19, 2019

View Opinion No. 18-1455

            Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            In an interlocutory appeal, Andres Lechuga challenges the district court decision granting summary judgment to O & J Enterprises, LLC (O & J) in his tort action.  OPINION HOLDS: We find there are genuine issues of material fact on the questions of whether O & J had a subcontractor agreement with Garcia Grain Structures, LLC (Garcia Grain), or whether Ezekiel Garcia was O & J’s employee and whether O & J and Garcia or Garcia Grain had a principal-agent relationship.  On these issues we reverse the district court’s decision granting summary judgment to O & J and remand for further proceedings.  We find the district court properly granted summary judgment to O & J on the issue of whether O & J was in a joint venture with Mid-States Millwright & Builders, Inc. and Garcia or Garcia Grain, and we affirm on this issue.

Case No. 18-1603:  Damian Lee Hesseltine v. Drewann Sorensen

Filed Jun 19, 2019

View Opinion No. 18-1603

            Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vaitheswaran, J.  (6 pages)

            DrewAnn Sorensen appeals an order granting Damian Hesseltine physical care of the parties’ minor child and awarding him the associated dependent-tax exemption.  OPINION HOLDS: We affirm the district court’s decree, and we decline to award appellate attorney fees.

Case No. 18-1700:  State of Iowa v. Gregg Patrick Quigley

Filed Jun 19, 2019

View Opinion No. 18-1700

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

            Gregg Quigley appeals his conviction for theft in the third degree.  OPINION HOLDS:  We find Quigley’s claims of ineffective assistance by defense counsel during his guilty plea proceeding should be preserved for possible postconviction proceedings.  We find the court did not abuse its discretion in setting the amount of restitution in the sentencing order.  We affirm Quigley’s conviction.

Case No. 18-1739:  State of Iowa v. Bob Kent Knipfel

Filed Jun 19, 2019

View Opinion No. 18-1739

            Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            A defendant appeals from his sentence for operating while intoxicated, second offense.  OPINION HOLDS: The district court properly exercised its discretion when sentencing the defendant.  We affirm the defendant’s sentence.

Case No. 18-1854:  Mark Roger Scholtes v. State of Iowa

Filed Jun 19, 2019

View Opinion No. 18-1854

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Mark Scholtes appeals the denial of his application for postconviction relief, raising claims of ineffective assistance of plea and postconviction counsel.  OPINION HOLDS: Because postconviction counsel raised and obtained a ruling on the precise issue Scholtes now raises, he could not have been ineffective.  We also conclude plea counsel was not ineffective in his advice about the possibility of consecutive sentences.  Accordingly, we affirm the postconviction court’s denial of Scholtes’ postconvicton-relief application.

Case No. 18-2142:  In the Interest of S.A., Minor Child

Filed Jun 19, 2019

View Opinion No. 18-2142

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            The mother and father separately appeal the termination of their parental rights to their daughter, S.A., who was born in December 2015.  The juvenile court terminated both the mother’s and the father’s parental rights pursuant to Iowa Code section 232.116(1)(h) (2018).  Both parents argue the State failed to prove the statutory grounds by clear and convincing evidence.  The mother also argues that the court should have granted a six-month deferment instead of termination.    OPINION HOLDS: Clear and convincing evidence supports the termination of both the mother’s and father’s parental rights.  The juvenile court properly denied the mother’s request for a six-month deferral.  We affirm on both appeals.

Case No. 19-0153:  In the Interest of T.F.-M., T.M., G.M., and A.G., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0153

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

            A grandmother appeals the juvenile court order denying her petition to intervene in child-welfare cases involving four children.  OPINION HOLDS: The grandmother’s decision to intervene was untimely for intervention in the child-in-need-of-assistance proceedings.  She still had an interest as an intervenor in the post-termination phase of proceedings.  But given concerns about her criminal history and protective capacity concerning the children’s father, we find no error in the juvenile court’s denial of her motion to intervene. 

Case No. 19-0343:  In the Interest of C.S., Minor Child

Filed Jun 19, 2019

View Opinion No. 19-0343

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

            A mother and father appeal the termination of their parental rights to their minor child, contending (1) the record lacks clear and convincing evidence to support the ground for termination cited by the juvenile court; (2) termination is not in the child’s best interests; and (3) the juvenile court should have declined to terminate their parental rights based on the closeness of the parent-child bonds.  OPINION HOLDS: We conclude reunification with either parent is not an option.  Given the father’s violent propensities and both parents’ continued drug use, termination is in the child’s best interests.  Additionally, the juvenile court acted appropriately in declining to invoke the parent-child bond exception to termination.  Accordingly, we affirm the termination of the parents’ rights to the child.

Case No. 19-0347:  In the Interest of R.B., Minor Child

Filed Jun 19, 2019

View Opinion No. 19-0347

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by May, J.  (8 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interest.  We affirm. 

Case No. 19-0437:  In the Interest of A.W., J.W., J.W., J.W., and M.W., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0437

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (10 pages)

            A mother appeals the termination of her parental rights to five children.  She contends the court erred in not ordering transcripts, finding the DHS made reasonable efforts, and finding termination is in the children’s best interests.  OPINION HOLDS: On our de novo review, we affirm the findings of the juvenile court. 

Case No. 19-0440:  In the Interest of L.H., S.H., P.H., and F.H., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0440

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because we agree with the juvenile court that the State proved the grounds for termination of parental rights and that termination was in the children’s best interests, we affirm the juvenile court’s order terminating the mother’s parental rights.

Case No. 19-0470:  In the Interest of K.P., K.P., J.P., K.P., J.P., K.P., J.P., and K.P., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0470

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  REVERSED IN PART AND REMANDED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother and the father of one of her children appeal the juvenile court's removal order in a child-in-need-of-assistance proceeding.  OPINION HOLDS: We find there is not clear and convincing evidence supporting removal of the children.  We reverse the district court’s removal of all the children from the mother’s custody, and removal of the youngest child from her father’s custody.

Case No. 19-0483:  In the Interest of A.Y., A.Y., K.Y., and O.Y., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0483

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Tabor, J., takes no part..  Opinion by Doyle, J.  (6 pages)

            A father appeals the termination of his parental rights to his children.  OPINION HOLDS: The record shows the children are in need of permanency, and all of the children are doing well in their placement with relatives.  Ultimately, the children’s best interests are served by termination of the father’s parental rights.  Consequently, we affirm the juvenile court’s order terminating the father’s parental rights.

Case No. 19-0501:  In the Interest of M.B., T.B., M.B., S.B., and S.B., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0501

            Appeal from the Iowa District Court for Adair County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination and termination is in the children’s best interests.  We affirm.

Case No. 19-0694:  In the Interest of I.M. and A.M., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0694

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the termination of his parental rights to his two children, arguing termination is not in the children’s best interests.  OPINION HOLDS: We conclude the father was in no position to parent his children safely, and we agree with the district court that termination of his parental rights is in the children’s best interests.  We affirm the termination of the father’s parental rights to the children.

Case No. 19-0704:  In the Interest of K.J. and K.J., Minor Children

Filed Jun 19, 2019

View Opinion No. 19-0704

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS: We find her request for a six-month extension is unwarranted and decline to apply any exceptions.  We find termination is in the best interests of the children.  We affirm.

Case No. 17-1661:  State of Iowa v. Tacari Trevon Minifee

Filed Jun 05, 2019

View Opinion No. 17-1661

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            Tacari Minifee appeals his convictions and sentences for the crimes of first-degree murder and first-degree robbery, raising claims of ineffective assistance of counsel and district court error in admitting certain evidence.  OPINION HOLDS: Preserving some claims for possible postconviction relief, we affirm Minifee’s judgment and sentences for both crimes.

Case No. 17-1701:  State of Iowa v. Steve W. Fordyce II

Filed Jun 05, 2019

View Opinion No. 17-1701

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Potterfield, J.  (21 pages)

            Steve Fordyce appeals his conviction after bench trial for voluntary manslaughter.  He claims (1) the State did not present substantial evidence to disprove his justification defense beyond a reasonable doubt, (2) the district court erred in not applying the amended Iowa Code chapter 704 (2017)—also known as the “stand your ground” law—to his case, and (3) his due process rights were violated by the length of time between his trial and the entry of the district court’s verdict.  OPINION HOLDS: Because substantial evidence disproves Fordyce’s justifications of self-defense and defense of others, the district court did not err in refusing to apply the stand your ground law to Fordyce’s case, and we do not find Fordyce’s due process rights were violated due to the delay between trial and the verdict, we affirm his conviction for voluntary manslaughter.

Case No. 17-1959:  State of Iowa v. Curt Douglas Steffen

Filed Jun 05, 2019

View Opinion No. 17-1959

            Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager, District Associate Judge.  DISTRICT COURT JUDGMENT REVERSED IN PART AND CASE REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (6 pages)

            The defendant challenges the adequacy of the court’s colloquy when he stipulated to a prior operating while intoxication (OWI) conviction to enhance the current conviction for second-offense OWI.  The court did not mention the prior OWI was valid for enhancement only if the defendant had been represented by counsel or knowingly waived the right to counsel.  The defendant also alleges the colloquy did not adequately advise him of the applicable penalties for owi second offense.  OPINION HOLDS: Because the colloquy did not comply with the requirements clarified in State v. Harrington, 893 N.W.2d 36 (Iowa 2017), State v. Brewster, 907 N.W.2d 489 (Iowa 2018), and State v. Smith, 924 N.W.2d 846 (Iowa 2019), we reverse the judgment entered on the OWI second offense and remand for further proceedings.

Case No. 17-2001:  Adrian Darius Wilson v. Chelsea Rae Jacques

Filed Jun 05, 2019

View Opinion No. 17-2001

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.  Gamble, S.J., takes no part.  Opinion by Mahan, S.J.  (15 pages)

            Chelsea Jacques appeals the district court’s decree ordering custody of her child with Adrian Wilson and ruling on her petition to disestablish Wilson’s paternity of the child.  OPINION HOLDS: Upon our review, we conclude Adrian’s paternity has been established and the court’s decree placing care of the child with him is in the child’s best interests.  We affirm.

Case No. 18-0175:  DeAndrew Harris v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0175

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED AND REMANDED.  Considered by Potterfield, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (12 pages)

            DeAndrew Harris was granted interlocutory appeal of the district court’s ruling denying his motion for an expert witness at state expense in this postconviction-relief proceeding.  OPINION HOLDS: Finding no abuse of discretion, we affirm.  The matter is remanded for further proceedings.

Case No. 18-0242:  State of Iowa v. Larry Donell Whaley

Filed Jun 05, 2019

View Opinion No. 18-0242

            Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (12 pages)

            Larry Whaley appeals from his conviction for second-degree murder.  He contends the State offered insufficient evidence to support the jury verdict finding he acted with malice aforethought and without justification when he fired three shots through his closed apartment door, killing Samantha Teeter.  OPINION HOLDS: Viewing the record in the light most favorable to the verdict, we find substantial evidence to sustain Whaley’s second-degree murder conviction.  But because Whaley’s claims of ineffective assistance involve questions of trial strategy, and the record is inadequately developed to address those questions, we preserve them for possible postconviction-relief proceedings.

Case No. 18-0254:  Estate of Wilma Poll v. Kenneth William Poll

Filed Jun 05, 2019

View Opinion No. 18-0254

            Appeal from the Iowa District Court for Jackson County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J.  (13 pages)

            Patricia Gerardy, the conservator for Wilma Poll, brought suit against Kenneth Poll concerning a real estate transaction between Kenneth and Wilma, alleging Kenneth unduly influenced Wilma to enter into the agreement and that Wilma was not competent to enter into the transaction.  The jury found in favor of Kenneth, and the district court denied Patricia’s posttrial motions.  Patricia appealed, and the Estate of Wilma Poll was substituted as the plaintiff/appellant after Wilma passed away.  OPINION HOLDS: Upon our review of the record, we conclude Patricia failed to preserve error on her claim she is entitled to a new trial based upon the district court’s reversal of its initial evidentiary ruling admitting credibility evidence.  Additionally, we find the district court did not err in denying Patricia’s motion for judgment notwithstanding the verdict, nor did the court abuse its discretion in denying her motion for a new trial, because there is sufficient evidence to support the jury’s verdict.  Accordingly, we affirm the jury’s verdict and the court’s rulings.

Case No. 18-0377:  State of Iowa v. Derek Krieger

Filed Jun 05, 2019

View Opinion No. 18-0377

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (13 pages)

            Derek Krieger appeals his convictions for third-degree burglary and two counts of criminal trespass.  OPINION HOLDS: Because we find the State failed to prove the Wildwood Road apartment complex was not open to the public, we reverse Krieger’s burglary conviction.  And because the State did not prove Krieger entered the Joan Drive and West Ninth Street apartment complexes without permission, we likewise reverse Krieger’s criminal trespass convictions.

Case No. 18-0467:  State of Iowa v. Phillip Orlando Naylor

Filed Jun 05, 2019

View Opinion No. 18-0467

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            Phillip Naylor appeals his conviction for operating while intoxicated, second offense, alleging the district court should have granted his motion to suppress evidence discovered after police pulled him over based on two 911 calls from the same unnamed source.  OPINION HOLDS: Because we find the details offered by the caller showed enough indicia of the driver’s intoxication to warrant stopping his truck to investigate, we affirm the suppression ruling and resulting conviction.

Case No. 18-0484:  Adam Blomdahl v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0484

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Adam Blomdahl appeals from the denial of his application for postconviction relief.  OPINION HOLDS: Because Blomdahl has failed to prove either a breach of duty or prejudice resulting from alleged counsel errors, his ineffective-assistance-of-counsel claims fail.  We affirm the denial of his postconviction-relief application.

Case No. 18-0488:  Wells Fargo Bank, N.A. v. Jason C. Thomas, et al.

Filed Jun 05, 2019

View Opinion No. 18-0488

            Appeal from the Iowa District Court for Clinton County, Henry W. Latham II, Judge.  REVERSED AND REMANDED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J.  (4 pages)

            Wells Fargo Bank, N.A. (Wells Fargo) appeals the denial of its petition to quiet title as to unknown heirs of Larry F. Humphrey.  Wells Fargo asserts it gave proper notice to any unknown heirs by publication.  OPINION HOLDS: We agree notice by publication is sufficient as to unknown heirs, and no estate need be opened to quiet title.  Therefore, we reverse and remand.

Case No. 18-0502:  Donshey Purnell Reed v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-0502

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  PCR DECISION AFFIRMED; SENTENCES VACATED IN PART AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Donshey Reed appeals the district court’s denial of his application for postconviction relief (PCR), claiming (1) his sentence should be modified to remove illegally-imposed surcharges and (2) his PCR attorney was ineffective in “failing to present evidence or develop a record at the [PCR] proceeding.”  OPINION HOLDS: We vacate Reed’s sentence and remand for removal of the inapplicable surcharges.  We affirm the PCR court’s denial of Reed’s PCR application and preserve his claims that PCR counsel was ineffective for another possible postconviction-relief application.

Case No. 18-0613:  Gene L. Franklin and Connie Johnson, Executors of the Fae Black Estate; Gene L. Franklin, Connie Johnson, Curtis L. Franklin, Julie Pedrick, Bruce Franklin, and Gregory S. Franklin v. Michael Johnston, Elizabeth Johnston, Steve Johnston, and Judith Yeager

Filed Jun 05, 2019

View Opinion No. 18-0613

            Appeal from the Iowa District Court for Van Buren County, Randy S. DeGeest, Judge.  AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Michael Johnston, Elizabeth Johnston, Steve Johnston, and Judith Yeager (the Johnstons) appeal, and Gene Franklin and Connie Johnson (the Franklins) cross-appeal, the district court’s ruling following a remand from our court.  The Johnstons assert the district court should have been granted them fee simple ownership of the dock and shoreline area near Michael Johnston’s home, rather than a prescriptive easement.  The Franklins filed a cross-appeal, and claim the district court should have restricted the size and location of the dock and the width of the shoreline.  OPINION HOLDS: We conclude the district court appropriately granted the Johnstons a prescriptive easement in the dock and shoreline.  Additionally, we order the boundaries of such easement be changed to conform to the Franklins’ requested specifications.

Case No. 18-0648:  State of Iowa v. Allen Wayne Nagle

Filed Jun 05, 2019

View Opinion No. 18-0648

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J. (4 pages)

            Allen Wayne Nagle appeals his sentence for burglary in the third degree.  OPINION HOLDS: Finding no abuse of discretion in running his sentence consecutively or in declining to suspend the fine, we affirm his sentence.

Case No. 18-0654:  Terry D. Butler v. Wells Fargo Bank, N.A., and David M. Erickson

Filed Jun 05, 2019

View Opinion No. 18-0654

            Appeal from the Iowa District Court for Warren County, Timothy O'Grady, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (12 pages)

            Terry Butler appeals from the district court’s grant of summary judgment dismissing his claims against Wells Fargo Bank, N.A. and David Erikson.  OPINION HOLDS: The district court correctly concluded Butler’s claims were barred by issue and claim preclusion.  Butler’s abuse-of-process claim also failed because he failed to provide evidence the defendants used the legal process for an improper purpose.

Case No. 18-0655:  Richard Coberly v. Carolyn J. Mils and Lisa Jean Green

Filed Jun 05, 2019

View Opinion No. 18-0655

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (5 pages)

            Richard Coberly appeals from the grant of summary judgment in favor of Carolyn Mils and Lisa Green after the district court found his petition was barred by claim preclusion.  OPINION HOLDS: Because Richard did not assert a defense that his debt was paid in the prior small claims action, we agree with the district court that his repackaged claim of fraud and conversion of funds is barred by claim preclusion.  Summary judgment was appropriate, and we therefore affirm.

Case No. 18-0692:  Lester Dunigan v. Liberty Mutual Insurance Company d/b/a Liberty Mutual Fire Insurance Company

Filed Jun 05, 2019

View Opinion No. 18-0692

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (15 pages)

            Lester Dunigan appeals the adverse summary judgment ruling on his claim for underinsured motorist coverage against Liberty Mutual Insurance Company (Liberty Mutual).  He argues the district court erred by applying Illinois law to the insurance policy, contending the plain language of the policy required the application of Iowa law.  Further, he argues Liberty Mutual failed to obtain a written declination of underinsured motorist coverage as required by Iowa Code section 516A.1 (2014), which results in underinsured motorist coverage being read into the policy.  OPINION HOLDS: We find the district court did not err by applying Illinois law as Illinois has the most significant relationship to the transaction and the parties.  Under Illinois law, because Dunigan opted to have only the statutory minimum amount of uninsured motorist liability coverage required by law, Liberty Mutual was not required to include underinsured motorist liability.  Accordingly, Dunigan cannot recover underinsured motorist benefits under his policy.  We affirm the district court’s grant of Liberty Mutual’s motion for summary judgment.

Case No. 18-0710:  Daniel Felt and Susan Kern v. David Felt and Felt Farms LLC

Filed Jun 05, 2019

View Opinion No. 18-0710

            Appeal from the Iowa District Court for Dallas County, Bradley McCall, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            Daniel Felt and Susan Kern appeal the district court ruling, finding a limited liability company (LLC) formed by their father, Richard Felt, did not dissolve following his death.  OPINION HOLDS: We find the contractual requirements for membership were not met within ninety days of Richard’s death, and the LLC dissolved by operation of law.

Case No. 18-0777:  State of Iowa v. Leigh Laz Lepon

Filed Jun 05, 2019

View Opinion No. 18-0777

            Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.  WRIT ANNULED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Blane, S.J.  (34 pages)

            Defendant appeals the district court dismissal of his third motion for new trial, filed more than two years after judgment and sentence were imposed on his conviction for second-degree murder.  He raises a number of claims as to why the district court erred in dismissing his motion, mostly procedural complaints, and why we should exercise jurisdiction in this appeal.  OPINION HOLDS: We treat defendant’s notice of appeal as a petition for writ of certiorari, grant the petition, address the issues raised under the appropriate legal standards, find the trial court did not act illegally, and annul the writ.

Case No. 18-0813:  In the Interest of B.H.A., Minor Child

Filed Jun 05, 2019

View Opinion No. 18-0813

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  Dissent by Vaitheswaran, P.J.  (19 pages)

            A mother appeals the juvenile court order denying her petition to terminate the parental rights of her son’s father under Iowa Code chapter 600A (2017).  She contends the juvenile court incorrectly concluded termination is not in the child’s best interests despite the father’s incarceration in another state and far-off release date, long history of substance abuse, and abandonment of the child.  OPINION HOLDS: Because the best-interests standard for private termination under chapter 600A differs from that under chapter 232, we are not prepared to write off the possibility the father will be a positive influence in the child’s life.  The mother did not carry her burden of proving by clear and convincing evidence that termination is in the child’s best interests at this time.  DISSENT ASSERTS: I respectfully dissent.  I would reverse the denial of the termination petition and remand for entry of an order granting the mother’s termination petition.

Case No. 18-0817:  In re the Marriage of Mabbitt

Filed Jun 05, 2019

View Opinion No. 18-0817

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

            Curtis Mabbitt appeals and Kristina Hickcox cross-appeals from the order modifying the decree of dissolution of their marriage.  Curtis argues a material change in circumstances has occurred since dissolution and the district court should have modified their child visitation schedule.  He also argues the court should have allowed one of their children to testify.  Kristina argues the court should have ordered retroactive child support and awarded her attorney fees.  OPINION HOLDS: We agree with the district court there is no material change in circumstances since entry of the decree to justify modifying visitation, and the court did not abuse its discretion in excluding the child as a witness.  We also agree with the court’s increase of child support effective after entry of the order, and the court did not abuse its discretion in declining to award attorney fees.  Accordingly, we affirm.

Case No. 18-0831:  State of Iowa v. David Alan Francis

Filed Jun 05, 2019

View Opinion No. 18-0831

            Appeal from the Iowa District Court for Wapello County, Kirk A. Daily, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            David Francis appeals his conviction of operating while intoxicated (OWI), third offense.  OPINION HOLDS:  We find the district court did not abuse its discretion in determining certain evidence was not relevant and therefore not admissible.  We determine there is substantial evidence in the record to support Francis’s conviction.  We preserve Francis’s claims of ineffective assistance of counsel for possible postconviction relief proceedings.  We affirm Francis’s conviction of OWI, third offense.

Case No. 18-0902:  Andrew Kearse, D.C. v. Iowa Board of Chiropractic

Filed Jun 05, 2019

View Opinion No. 18-0902

            Appeal from the Iowa District Court for Lee County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Andrew Kearse, D.C., appeals the district court’s dismissal of his application for judicial review of a sanction imposed on him by the Iowa Board of Chiropractic, arguing the sanction was not warranted.  OPINION HOLDS: We conclude the board acted well within its discretion in revoking Kearse’s chiropractor license for at least ten years.  The revocation decision was not an irrational, illogical, or wholly unjustifiable application of law to fact.

Case No. 18-0959:  State of Iowa v. John Michael Ancell

Filed Jun 05, 2019

View Opinion No. 18-0959

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J. (14 pages)

            John Ancell appeals his convictions, following a jury trial, of domestic abuse assault causing bodily injury and possession of marijuana.  Ancell asserts the court erred in denying his motions for a new trial and in arrest of judgment, contending he was denied a fair trial due to the State’s late disclosure of evidence, resulting in a Brady violation.  Ancell also challenges the sufficiency of the evidence supporting his convictions.  OPINION HOLDS: Ancell’s Brady claim fails on the merits.  Accordingly, his trial counsel was not ineffective in failing to object to the State’s late disclosure of his statement.  We also find sufficient evidence to support his convictions.  Therefore, we affirm Ancell’s convictions for domestic abuse assault causing bodily injury and possession of marijuana.

Case No. 18-1033:  State of Iowa v. Bruce Rankin

Filed Jun 05, 2019

View Opinion No. 18-1033

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J. (3 pages)

            Bruce Rankin appeals the sentence imposed upon his conviction for two counts of indecent contact with a child, contending the district court erred in determining Rankin had the reasonable ability to pay an unknown amount of attorney’s fees.  OPINION HOLDS: The court erred in determining Rankin was able to pay attorney fees in an unknown amount.  We reverse the part of the sentence regarding restitution and remand the case for resentencing consistent with State v. Albright, 925 N.W.2d 144, 160-61 (Iowa 2019).

Case No. 18-1034:  Thomas Kellen and Jerome Kellen v. Wayne Pottebaum and Jeff Pottebaum

Filed Jun 05, 2019

View Opinion No. 18-1034

            Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Doyle, J.  (7 pages)

            Thomas and Jerome Kellen appeal the district court ruling denying their action for relief.  OPINION HOLDS: I. The Kellens failed to prove by a preponderance of the evidence that the installation of the relief pipe substantially increased the volume of water flowing onto their land or substantially changed the manner or method of drainage.  II. The district court did not abuse its discretion in excluding certain evidence the Kellens failed to disclose prior to trial. 

Case No. 18-1057:  State of Iowa v. Torrenzo Michael Green

Filed Jun 05, 2019

View Opinion No. 18-1057

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson And Mary E. Chicchelly, Judges.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (2 pages)

            Torrenzo Green appeals his conviction for possession of marijuana with intent to deliver.  OPINION HOLDS: We affirm Green’s conviction and preserve his ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings.  

Case No. 18-1065:  Izudin Dubinovic v. Des Moines Public Schools

Filed Jun 05, 2019

View Opinion No. 18-1065

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Tabor, J., takes no part.  Opinion by Potterfield, J.  (7 pages)

            Izudin Dubinovic appeals the district court judicial review decision affirming the final agency action of the workers’ compensation commissioner denying his claim for penalty benefits.  On appeal, Dubinovic contends the commissioner and the district court erred in declining to award penalty benefits for an alleged delay of healing period benefits and permanency benefits.  OPINION HOLDS: We affirm the commissioner’s denial of Dubinovic’s claim for penalty benefits.

Case No. 18-1101:  State of Iowa v. Joshua Snyder

Filed Jun 05, 2019

View Opinion No. 18-1101

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (3 pages)

            Joshua Snyder appeals from his guilty plea, claiming the trial court did not state a factual basis on the record for his plea as required by Iowa Rule of Criminal Procedure 2.8(2).  OPINION HOLDS: Snyder was advised of the deadline to file a motion in arrest of judgment, so his failure to file one precludes us from considering the merits of his challenge to his guilty plea.  We affirm.

Case No. 18-1149:  State of Iowa v. Nikolas A. Stephens

Filed Jun 05, 2019

View Opinion No. 18-1149

            Appeal from the Iowa District Court for Hardin County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            Nikolas Stephens appeals his conviction of leaving the scene of an accident resulting in death, contending: (1) the court abused its discretion in excluding evidence the pedestrian victim was impaired by drugs or alcohol at the time of the collision, (2) the court erred in declining to provide instructions to the jury concerning the victim’s negligence, and (3) the court abused its discretion in admitting the content of a text message as evidence because it was irrelevant and prejudicial.  OPINION HOLDS: Having found no abuse of discretion in the district court’s evidentiary rulings or legal error as to the claimed jury-instruction deficiencies, we affirm Stephens’s conviction of leaving the scene of an accident resulting in death.

Case No. 18-1162:  State of Iowa v. Roosevelt Jerry Smith Sr.

Filed Jun 05, 2019

View Opinion No. 18-1162

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Carr, S.J.  (3 pages)

            Roosevelt Jerry Smith Sr. appeals his sentence for driving while barred as a habitual offender.  OPINION HOLDS: The court sentenced him to exactly the disposition contemplated by the plea agreement, except the court reduced the agreed fine and placed him on unsupervised probation, a topic on which the agreement is silent.  We find no abuse in the court’s exercise of discretion in sentencing.  Therefore, we affirm.

Case No. 18-1347:  State of Iowa v. Jacob Christopher Adams

Filed Jun 05, 2019

View Opinion No. 18-1347

            Appeal from the Iowa District Court for Hamilton County, Kurt L. Wilke and James C. Ellefson, Judges.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            Jacob Adams appeals his conviction for possession of methamphetamine, third offense.  He argues the district court erred in denying his motion to suppress because there was no probable cause to support a search warrant.  OPINION HOLDS:  There a substantial basis for the issuing magistrate to conclude probable cause existed to support the search warrant.

Case No. 18-1413:  State of Iowa v. Seith Keith

Filed Jun 05, 2019

View Opinion No. 18-1413

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            Seith Keith appeals his convictions for robbery in the first degree and willful injury resulting in bodily injury.  He contends there is insufficient evidence he intended to cause serious injury, which is a necessary element of both charges.  OPINION HOLDS: Surveillance video clearly shows Keith was armed with a knife, and there is substantial evidence to support the trial court’s finding that Keith used the knife in a manner that could have inflicted serious injury or death.  We, therefore, affirm.

Case No. 18-1432:  State of Iowa v. Nathan Skeries

Filed Jun 05, 2019

View Opinion No. 18-1432

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            On appeal from his conviction for operating while intoxicated, Nathan Skeries challenges the denial of his motion to suppress evidence obtained during the traffic stop of his vehicle.  OPINION HOLDS: The officer had reasonable suspicion to initiate a traffic stop and investigate whether a traffic offense was being committed based on his belief that the lights on Skeries’s vehicle did not illuminate the road sufficiently under Iowa Code section 321.409(1)(b) (2018).  The officer also had reasonable suspicion to stop Skeries to investigate whether he was operating while intoxicated. 

Case No. 18-1472:  State of Iowa v. Carl John Meyers, Jr.

Filed Jun 05, 2019

View Opinion No. 18-1472

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J. (3 pages)

            Following a guilty plea, Carl Meyers Jr. appeals his sentence, arguing the district court erroneously “ordered [him] to pay court costs without any showing that he had the reasonable ability to repay those obligations.”  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate the sentencing court’s assessment of court costs against Meyers pending the completion of a final restitution order and a subsequent determination of Meyers’ reasonable ability to pay.

Case No. 18-1502:  State of Iowa v. Melton Ray Carter

Filed Jun 05, 2019

View Opinion No. 18-1502

            Appeal from the Iowa District Court for Woodbury County, Julie A. Schumacher, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J. (14 pages)

            The State on discretionary review challenges the district court’s grant of defendant Carter’s motion to suppress when an officer searched Carter, a pedestrian, based on the officer detecting the odor of marijuana emanating from Carter’s person.  The district court held that smell of marijuana alone, absent other circumstances, did not constitute probable cause. OPINION HOLDS:  Based upon Iowa Supreme Court precedent, an officer’s detection of an odor of marijuana emanating from a person by itself constitutes probable cause.  The district court erred in granting Carter’s motion to suppress.

Case No. 18-1543:  State of Iowa v. Terry Thomas Bragg

Filed Jun 05, 2019

View Opinion No. 18-1543

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (5 pages)

            Terry Bragg appeals the district court’s decision to require he serve the sentence imposed in this case consecutive to his sentence in another case asserting the court considered an impermissible sentencing factor and therefore abused its discretion.  OPINION HOLDS: Upon our review, we find the district court did not abuse its discretion in its decision to require that the ten-year term of incarceration for the second-degree-robbery conviction be served consecutive to Bragg’s other sentence.  Accordingly, we affirm Bragg’s sentence.

Case No. 18-1684:  State of Iowa v. Timothy Edward Runyon

Filed Jun 05, 2019

View Opinion No. 18-1684

            Appeal from the Iowa District Court for Mills County, James S. Heckerman (motion to suppress) and Timothy O’Grady (trial), Judges.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            Timothy Runyon appeals his conviction of operating while intoxicated, second offense, contending the district court erred in denying his motion to suppress evidence.  OPINION HOLDS: We affirm the denial of Runyon’s motion to suppress and his conviction.

Case No. 18-1790:  Benjamin John Jass v. Carrie Marie Atkinson n/k/a Carrie Marie Van Hugten

Filed Jun 05, 2019

View Opinion No. 18-1790

            Appeal from the Iowa District Court for Hardin County, James C. Ellefson, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (20 pages)

            A father appeals the district court’s decree granting joint legal custody and placing physical care with the child’s mother.  On appeal, the father seeks to change the child’s surname to his own, expand visitation, share transportation, decrease child support, and alternate tax benefits.  OPINION HOLDS: Our de novo review leads us to most of the same conclusions as the district court: we affirm the district court’s resolution of the child’s name, its visitation schedule, allocation of transportation, the amount of child support, and the award of tax benefits to the mother.  But we agree with the father’s contention there should be an end date to the upward deviation in child support resulting from elevated childcare expenses when the mother removes the child from daycare.  Accordingly, we modify the decree to order the mother to notify the father when she stops paying for daycare at which time the child support payment will be reduced to align with the child support guidelines. 

Case No. 18-1849:  State of Iowa v. Jason Donald Hilbert

Filed Jun 05, 2019

View Opinion No. 18-1849

            Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J.  (4 pages)

            Jason Donald Hilbert was charged with third-degree theft after taking money from his employer.  He pled guilty to fourth-degree theft and was sentenced to a one-year term of incarceration.  On appeal, he raises two ineffective-assistance-of-counsel claims.  OPINION HOLDS: We find Hilbert failed to assert a cognizable claim for the first ineffective-assistance claim and we preserve the second claim for possible postconviction relief.

Case No. 18-1853:  Telly Lawon Nix v. State of Iowa

Filed Jun 05, 2019

View Opinion No. 18-1853

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

            Telly Nix appeals the district court’s denial of his application for postconviction relief, which we construe as a motion to correct an illegal sentence.  The proper form of review is by a petition for writ of certiorari.  We therefore treat Nix’s notice of appeal and appellate briefs as a petition for writ of certiorari, grant the writ, and proceed to the merits of his claims.  OPINION HOLDS: We conclude the district court correctly applied the law in this case.  We therefore annul the writ.

Case No. 18-1925:  In the Interest of A.W., H.D., J.D., and L.D., Minor Children

Filed Jun 05, 2019

View Opinion No. 18-1925

            Appeal from the Iowa District Court for Taylor County, Monty Franklin, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            A mother of four children and the father of the youngest three children separately appeal the termination of their parental rights, both challenging the efforts at reunification by the department of human services.  Additionally, the mother asserts insufficient evidence supported termination, and the father claims termination is not in the children’s best interests.  OPINION HOLDS: We agree with the district court that the children could not be returned to the mother’s custody and affirm the termination of her parental rights.  We affirm the termination of the father’s parental rights to his three children.

Case No. 18-1936:  State of Iowa v. DeAngelo DeShawn Brooks

Filed Jun 05, 2019

View Opinion No. 18-1936

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            DeAngelo Brooks appeals claiming the sentencing court abused its discretion in imposing its sentence.  OPINION HOLDS:  Although Brooks would have preferred a different sentence, the sentencing court did not abuse its discretion.  The court provided sufficient reasons for the sentence imposed.  Substantial evidence supports the sentence, and the court properly applied the law in imposing it.        

Case No. 18-1939:  Chad A. Sposeto v. Kaly M. Hedman n/k/a Fette

Filed Jun 05, 2019

View Opinion No. 18-1939

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            Chad Sposeto appeals the district court order denying his petition to modify provisions of a custody decree.  He also challenges the award of attorney fees.  OPINION HOLDS: We affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (d), and (e). 

Case No. 18-1974:  William McClellan and Racquel McClellan, Individually and as Next Friend for Minor Child, R.B. v. Pablo Orlando Ramirez, and the City of Dubuque, Iowa

Filed Jun 05, 2019

View Opinion No. 18-1974

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Doyle, J.  (8 pages)

            William McClellan and Racquel McClellan appeal the district court order entering summary judgment in favor of the defendants on their claim for damages arising from a collision with a police vehicle.  OPINION HOLDS: While we agree that the undisputed facts show the police officer was responding to an emergency at the time of the collision, the district court erred in applying the recklessness standard in determining the defendants are immune from liability.  The officer’s vehicle’s lights and siren were off at the time of the collision, therefore, by the plain language of Iowa Code section 321.231(4) (2016), he was not privileged to disobey applicable traffic laws.  He is therefore held to a standard of negligence, as any other driver on the road.  The district court erred in holding otherwise.  Summary judgment on the question of Officer Ramirez’s negligence is premature, particularly in view of the undeveloped record presented.  Therefore, we reverse the order granting summary judgment in favor of the defendants and remand to the district court. 

Case No. 19-0060:  In the Interest of T.B. and A.B., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0060

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Tabor, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (11 pages)

            A mother and a father separately appeal the termination of their parental rights to two children.  They challenge the findings of the juvenile court that grounds for termination exist, termination is in the children’s best interests, and no permissive reason warrants the preservation of parental rights.  OPINION HOLDS: On our de novo review, we affirm on both appeals.

Case No. 19-0163:  In the Interest of E.W., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0163

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            The father appeals the termination of his parental rights to his child, E.W., born in 2017.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(e) and (h) (2018).  The father only challenges the sufficiency of the evidence supporting the grounds for termination.  OPINION HOLDS: Because E.W. could not be returned to the father’s care at the time of the termination hearing, we affirm the juvenile court’s termination of the father’s parental rights pursuant to section 232.116(1)(h). 

Case No. 19-0200:  In the Interest of G.D. and A.D., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0200

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: Because returning the children to the mother’s care would expose them to adjudicatory harm, the evidence supports terminating the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) (2018).  Termination is in the children’s best interests.

Case No. 19-0205:  In the Interest of A.W., Z.H., Z.W., and Z.W., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0205

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            A mother appeals the termination of her parental rights to four of her seven children, born in 2006, 2012, 2014, and 2017.  She contends (1) the State failed to prove the grounds for termination cited by the district court; (2) the district court should have granted her additional time to work towards reunification; (3) termination is not in the children’s best interests; and (4) the district court should have placed the oldest child in a guardianship with the child’s maternal grandmother.  The oldest child also appeals the termination decision.  She argues the court should not have terminated her mother’s parental rights and should have placed her in a guardianship with her maternal grandmother.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to four of her children.  We conclude a guardianship for the oldest child with her maternal grandmother was not warranted.

Case No. 19-0206:  In the Interest of K.W., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0206

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (7 pages)

A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for terminating the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) (2018).  The mother has failed to preserve error on her claim that the Department of Human Services failed to make reasonable efforts to return the child to her care.  The best interests of the child require termination of the mother’s parental rights.  Accordingly, we affirm.

Case No. 19-0240:  In the Interest of J.C. and O.C., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0240

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

            A father appeals the juvenile court’s decision to waive the department of human services’ obligation to make reasonable efforts towards reunification.  The father also argues that the court should not have declined his request to bifurcate the roles of the children’s attorney and guardian ad litem.  OPINION HOLDS: We conclude the department’s obligation to make reasonable reunification efforts should not have been waived.  We reverse the portion of the dispositional order granting the children’s waiver motion and remand for reinstatement of reasonable reunification services and further proceedings consistent with this opinion.  We find it unnecessary to also reverse the juvenile court’s denial of the father’s request for bifurcation.

Case No. 19-0271:  In the Interest of C.L. and C.L., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0271

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Per Curiam.  (5 pages)

            A mother appeals the termination of parental rights to her two children.  OPINION HOLDS: The record shows the mother did nothing to address her mental health issues during the pendency of the case.  Consequently, we agree with the juvenile court that the children could not have been returned to the mother’s care at the time of the termination-of-parental-rights hearing.  Because the State established by clear and convincing evidence the ground for termination in paragraph (f) of section 232.116(1) (2018), we affirm the juvenile court’s order terminating the mother’s parental rights.

Case No. 19-0289:  In the Interest of N.K. and D.E., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0289

            Appeal from the Iowa District Court for Scott County, Cheryl Traum, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J.  (4 pages)

            The mother appeals the termination of her parental rights to her two children.  She argues the State failed to prove any of the grounds for termination exist by clear and convincing evidence and termination is not in the best interests of the children.  OPINION HOLDS: Based on the record and the mother’s admission that the children could not have been returned to her at the time of the termination hearing, we conclude the State proved by clear and convincing evidence the grounds for termination exist.  In addition, we find termination is in the best interests of the children.

Case No. 19-0296:  In the Interest of A.L., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0296

              Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (13 pages)

            A mother and father separately challenge the termination of their parental rights to their child.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-0298:  In the Interest of O.C., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0298

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother and father each appeal the termination of their parental rights.  OPINION HOLDS:  We find there is substantial evidence in the record to support termination of the mother’s parental rights, an extension of time would not be in the child’s best interests, an exception to termination should not be applied, and the State engaged in reasonable efforts to reunite the mother and the child.  We also find there is substantial evidence in the record to support termination of the father’s parental rights and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

Case No. 19-0334:  In the Interest of C.M., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0334

            Appeal from the Iowa District Court for Des Moines County, Jennifer S. Bailey, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (6 pages)

            A father appeals the termination of his parental rights to his son, C.M., arguing the court should have permitted him an additional six months to work toward reunification, and the closeness of the parent-child relationship outweighs termination.  OPINION HOLDS: Because we find no grounds for a delay in C.M.’s permanency, and because we do not believe the bond between the father and C.M. overrides the need for termination, we affirm the juvenile court’s termination of the father’s rights.

Case No. 19-0348:  In the Interest of A.M., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0348

            Appeal from the Iowa District Court for Wright County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother appeals the termination of her parental rights to her minor child.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-0350:  In the Interest of A.M., B.M., and K.L., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0350

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (12 pages)

            A mother appeals the termination of her parental rights to three children, contending there is not clear and convincing evidence to support the grounds for termination, termination is not in the children’s best interests, the court erred in not applying one of the factors weighing against termination, and the State failed to make reasonable visitation efforts.  OPINION HOLDS: We affirm because grounds for termination exist, termination and permanency for the children is in their best interests, and guardianship is not preferred to termination of the mother’s parental rights.  The department of human services made reasonable efforts to accommodate the mother’s move.

Case No. 19-0389:  In the Interest of A.D., E.D., and J.D., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0389

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            The mother appeals the termination of her parental rights to her three children.  The juvenile court terminated the mother’s parental rights to each child pursuant to Iowa Code section 232.116(1)(b), (e), (f), and (l) (2018).  OPINION HOLDS: The mother does not challenge whether clear and convincing evidence supports paragraph (b), so we affirm on this ground.  Based on the record at the time of the termination trial, termination of the mother’s parental rights is in these children’s best interests.  We affirm.

Case No. 19-0402:  In the Interest of S.G., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0402

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (10 pages)

            A mother, Patricia, and father, Michael, separately appeal the termination of parental rights to their daughter, S.G.  Patricia challenges the statutory basis for termination, claims termination is not in S.G.’s best interests, and asserts termination will be detrimental to S.G. because of their close bond.  Michael also contests the statutory ground for termination and, alternatively, seeks additional time to obtain a psychosexual evaluation and work on his mental-health issues.  OPINION HOLDS: We agree with the juvenile court’s conclusion the State proved termination of both Patricia and Michael’s parental rights is warranted under Iowa Code section 232.116(1)(f) (2019).  And we do not believe termination of Patricia’s rights is counter to S.G.’s best interests, nor do we believe Patricia’s close bond with S.G. weighs against termination.  Finally, we do not think Michael is entitled to a six-month delay of S.G.’s placement.  Accordingly, we affirm on both appeals.

Case No. 19-0411:  In the Interest of A.T. and A.T., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0411

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A father appeals the juvenile court order terminating his parental rights.  He claims clear and convincing evidence shows termination would be detrimental to the children due to the closeness of the parent-child bonds.  OPINION HOLDS: We find termination of the father’s parental rights is in the children’s best interests.

Case No. 19-0424:  In the Interest of W.L. and E.L., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0424

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Following termination of the rights of their biological parents, the Iowa Department of Human Services (DHS) removed E.L. and W.L. from their pre-adoptive placement with intervenors Craig and his husband, Dwight.  The intervenors challenge the denial of their motion to remove the DHS as the children’s guardian, arguing the DHS acted unreasonably and not in the children’s best interests by removing the children from their home over concerns about inadequate supervision.  OPINION HOLDS: We agree with the juvenile court’s conclusion disrupting the children’s current pre-adoptive placement would not be in their best interests, even if the DHS acted unreasonably at the time of the removal.  Accordingly, we affirm. 

Case No. 19-0426:  In the Interest of L.M., C.K., and J.T., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0426

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

            A mother challenges the termination of her parental rights to three children, raising three claims: (1) termination is not in the children’s best interests under Iowa Code section 232.116(2) (2018); (2) the juvenile court should have declined to terminate under section 232.116(3) because of the closeness of the parent-child relationship and because the children were placed with relatives; and (3) the Iowa Department of Human Services (DHS) did not provide reasonable reunification services because of the high level of turnover among the caseworkers assigned to her family.  OPINION HOLDS: Because we conclude termination is in the children’s best interests, the closeness of the parent-child bond does not outweigh termination, the children were not in the legal custody of relatives, and the mother failed to preserve error on her reasonable-efforts argument relating to caseworker turnover, we affirm the juvenile court’s termination of her parental rights.

Case No. 19-0467:  In the Interest of T.N., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0467

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            A mother appeals the termination of her parental rights to her child, challenging the sufficiency of the evidence supporting the statutory grounds for termination cited by the juvenile court.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-0498:  In the Interest of M.R., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0498

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights.  They independently claim the evidence was insufficient to support termination, the court should have granted additional time for them to resolve their issues, and exceptions to termination apply.  OPINION HOLDS: We find sufficient evidence supports the termination, additional time is not warranted, and no exceptions preclude termination.  We affirm.

Case No. 19-0515:  In the Interest of G.W., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0515

            Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Tabor, J.  (8 pages)

            A father appeals the order terminating his parental rights to one child.  He contends the State did not prove statutory grounds for termination, reasonable efforts to reunify, or that termination is in the child’s best interests.  He also alleges the court should have denied the petition based on the closeness of the parent-child relationship.  In the alternative, he asks to delay permanency for six months.  OPINION HOLDS: On our de novo review, we agree with the conclusions of the juvenile court—the father admitted he was not in a position to resume care of the child, and his remaining arguments fail.  We affirm. 

Case No. 19-0521:  In the Interest of A.V., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0521

            Appeal from the Iowa District Court for Clay County, Andrew Smith, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            A father appeals the termination of his parental rights to his minor child.  OPINION HOLDS: We affirm the termination of the father’s parental rights. 

Case No. 19-0533:  In the Interest of N.S. and M.S., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0533

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            The parents of two minor children separately appeal the termination of their parental rights, arguing the State failed to prove the grounds for removal cited by the district court and termination was not in the children’s best interests.  OPINION HOLDS: On our de novo review, we affirm the district court’s termination of the mother’s parental rights to the two children, as well as the termination of the father’s parental rights to the older child.

Case No. 19-0549:  In the Interest of A.W., M.W., and C.P., Minor Children

Filed Jun 05, 2019

View Opinion No. 19-0549

            Appeal from the Iowa District Court for Pottawattamie County, Scott D. Strait, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the mother’s parental rights.  We find the services provided by the State were reasonable under the circumstances of the case.  Also, we find termination of the mother’s parental rights is in the children’s best interests.  We affirm the juvenile court’s decision terminating the mother’s parental rights.

Case No. 19-0588:  In the Interest of M.W., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0588

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The mother appeals the juvenile court order terminating parental rights to her child, and the denial of her motion for new trial.  The juvenile court terminated the mother’s rights pursuant to Iowa Code section 232.116(1)(e) and (h) (2018) in March 2019.  OPINION HOLDS: After reviewing the record, we conclude that termination of parental rights is in the child’s best interest.  We also hold that the juvenile court did not abuse its discretion in denying the mother’s motion for new trial.  We affirm the juvenile court’s decision terminating the mother’s parental rights.

Case No. 19-0602:  In the Interest of B.W., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0602

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J.  (9 pages)

            A mother appeals the juvenile court’s order terminating her parental rights.  OPINION HOLDS: We conclude termination was proper under Iowa law and consistent with the child’s best interests.  We affirm. 

Case No. 19-0656:  In the Interest of C.G., Minor Child

Filed Jun 05, 2019

View Opinion No. 19-0656

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The father appeals the termination of his parental rights to his child, C.G., born in June 2016.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(d) and (h) (2018).  He maintains the State failed to prove the statutory grounds by clear and convincing evidence, termination is not in the child’s best interests, and a permissive factor weighs against severing the parent-child relationship.  OPINION HOLDS: Because the statutory grounds for termination have been proved by clear and convincing evidence, termination is in C.G.’s best interests, and no permissive factor weighs against severing the parent-child relationship, we affirm.

Case No. 17-0960:  Spencer A. Pierce v. State of Iowa

Filed May 15, 2019

View Opinion No. 17-0960

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (15 pages)

            Spencer Pierce appeals the denial of his application for postconviction relief.  He argues his trial counsel was ineffective for failing to take several actions: (1) file a motion to suppress evidence from the search of a residence; (2) properly argue the motion to suppress evidence from the search of a vehicle; (3) investigate a confidential informant; and (4) prepare for trial.  OPINION HOLDS: We find Pierce has not shown prejudice by proving, but for counsel’s claimed errors, he would have refused the plea bargain and proceeded to trial.  Furthermore, he has not proven: (1) the warrant to search the residence was impermissibly tainted by evidence from an illegal search and seizure or from inaccuracies in the application; (2) the warrant to search the vehicle was improperly rejected or the vehicle would not run properly with the evidence in place; (3) evidence from the confidential informant was beneficial to him; or (4) a lack of preparation for trial by counsel caused him to plead guilty.  Therefore, we affirm.

Case No. 17-1789:  Eric Christopher Miller v. State of Iowa

Filed May 15, 2019

View Opinion No. 17-1789

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

            Eric Miller appeals the dismissal of his application for postconviction relief.  He asserts he has raised a proper gateway claim of actual innocence to survive summary judgment.  OPINION HOLDS: Iowa does not recognize a gateway claim of actual innocence.  Even if we were to recognize a gateway claim, Miller has not shown a constitutional error at trial that is supported with new reliable evidence to establish, more likely than not, no reasonable juror would have convicted him. 

Case No. 17-1997:  David Palmer Dewberry v. State of Iowa

Filed May 15, 2019

View Opinion No. 17-1997

            Appeal from the Iowa District Court for Decatur County, John D. Lloyd, Judge.  REVERSED AND REMANDED. Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Vogel, C.J.  (4 pages)

            Dewberry appeals the denial of his second postconviction-relief (PCR) application.  He claims he was wrongly denied a full PCR hearing to demonstrate his trial counsel was ineffective for failing to present an expert to testify on whether the BB gun he used during the incident was a dangerous weapon under Iowa Code section 711.2 (2011).  OPINION HOLDS: Because Dewberry was deprived of the opportunity to prove his actual-innocence claim, we remand the case to the PCR court where a full evidentiary hearing may be held.

Case No. 17-2035:  In re the Marriage of Schenkelberg

Filed May 15, 2019

View Opinion No. 17-2035

            Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Gary Schenkelberg appeals the district court’s order denying his petition to modify the parties’ dissolution decree to decrease his spousal support obligation to Julianne Schenkelberg.  OPINION HOLDS: We agree with the district court that Gary failed to carry his burden of proving a substantial change not in the contemplation of the supreme court, and we affirm the denial of his modification petition. 

Case No. 17-2058:  Lonny Otto Bathen v. State of Iowa

Filed May 15, 2019

View Opinion No. 17-2058

            Appeal from the Iowa District Court for Buchanan County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (5 pages)

            Lonny Bathen appeals the denial of his application for postconviction relief.  OPINION HOLDS:  Bathen has failed to demonstrate his trial counsel breached essential duties in a way that prejudiced him either individually or cumulatively.  Bathen must raise his claims of ineffective assistance of postconviction-relief counsel in a second application for postconviction relief that is promptly filed following this appeal.

Case No. 17-2059:  State of Iowa v. Jorge Sanders-Galvez

Filed May 15, 2019

View Opinion No. 17-2059

            Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (12 pages)

            Jorge Sanders-Galvez appeals his conviction for murder in the first degree, contending (1) the evidence was insufficient to support the jury’s finding of guilt; (2) his trial attorney was ineffective in failing to object to a statement on hearsay grounds; (3) the district court abused its discretion in admitting a phone video; and (4) juvenile-sentencing precedent “should be expanded” to young adults.  OPINION HOLDS: We affirm Sanders-Galvez’s judgment and sentence for first-degree murder and preserve his ineffective-assistance-of-counsel claim concerning the admission of hearsay evidence for possible postconviction relief.

Case No. 17-2084:  Bulmer v. UnityPoint Health

Filed May 15, 2019

View Opinion No. 17-2084

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

            Plaintiffs appeal the district court’s denial of their request for an extension of time to designate expert witnesses in a medical malpractice case and subsequent grant of summary judgment.  OPINION HOLDS: The district court did not abuse its discretion in denying the motion for an extension of time because plaintiffs failed to show good cause for their delay to designate expert witnesses.  Accordingly, summary judgment was proper.

Case No. 18-0098:  State of Iowa v. Larry Deandre Ratliff Jr

Filed May 15, 2019

View Opinion No. 18-0098

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (18 pages)

            On appeal, Larry Ratliff Jr. challenges the sufficiency of the evidence supporting his convictions of first-degree murder, willful injury causing serious injury, and assault with intent to inflict serious injury.  Ratliff also asserts his trial counsel provided ineffective assistance by failing to object to faulty jury instructions.  Ratliff further contends the district court abused its discretion in admitting cumulative and unduly prejudicial photographs into evidence.  OPINION HOLDS: We find the jury’s verdicts for murder in the first degree and willful injury causing serious injury are supported by substantial evidence and therefore affirm the judgments and sentences of the district court for those offenses.  We find the State failed to establish sufficient evidence for assault with intent to inflict serious injury.  Accordingly, we reverse the judgment and sentence for that offense and remand for dismissal of the charge.  We find Ratliff’s trial counsel was not ineffective and the court did not abuse its discretion in admitting photographs showing Ratliff holding the murder weapon.

Case No. 18-0194:  Izudin Dubinovic v. Des Moines Public Schools

Filed May 15, 2019

View Opinion No. 18-0194

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Tabor, J., takes no part.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Izudin Dubinovic appeals the district court judicial review decision affirming the final agency action of the worker’s compensation commissioner, contending: (1) the supreme court erred in adopting a legal causation standard in cases involving a purely mental injury, and the district court erred in affirming the commissioner’s application of the standard, and (2) the commissioner should have applied a modified standard applicable to mental injuries arising from sudden traumatic events.  OPINION HOLDS: We affirm the commissioner’s denial of Dubinovic’s claim for medical benefits.

Case No. 18-0348:  Marc Steffes, Mercedes Steffes, Lance Freed, and Jill Freed v. Terrace Park Dock and Property Owners Association, Terrace Park Dock and Property Owners Association Officers, Terrace Park Dock and Property Owners Association Members, and Colonel F. Krage

Filed May 15, 2019

View Opinion No. 18-0348

            Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen, Judge.  REVERSED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Decided by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Doyle, P.J.  (13 pages)

            Property owners appeal the district court order dismissing their action to enforce their right to membership in the Terrace Park Dock and Property Owners Association.  OPINION HOLDS: The language of the Association’s bylaws unambiguously states that in order to be eligible for membership, an individual need only own a parcel or lot within the original plat or replat.  Because it does not restrict membership to owners of lots of record as delineated in the 1905 Plat or the 1908 Replat, we reverse the district court’s decision.

Case No. 18-0365:  State of Iowa v. Robert Earl Rivers, Jr.

Filed May 15, 2019

View Opinion No. 18-0365

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (13 pages)

            Robert Rivers Jr. appeals his convictions of eluding and driving while barred.  He argues (1) the district court’s denial of his Batson challenge violated his right to equal protection under the federal constitution, (2) the use of peremptory strikes under Iowa Rule of Criminal Procedure 2.18 violates due process and the right to an impartial jury under the state and federal constitutions, (3) the State failed to provide sufficient evidence to support the charges and the court therefore erred in denying his motions for judgment of acquittal, and (4) his counsel rendered ineffective assistance in failing to object to testimony and evidence derived from the forensic examination of a cellular phone.  OPINION HOLDS: We affirm Rivers’s convictions of eluding and driving while barred.

Case No. 18-0379:  Arthur John Chumbley v. Lyman Enterprises, L.C.

Filed May 15, 2019

View Opinion No. 18-0379

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., Tabor, J., and Carr, S.J.  Gamble, S.J., takes no part.  Opinion by Carr, S.J.  (4 pages)

            Lyman Enterprises, L.C., appeals the judgment entered in favor of Arthur Chumbley on his action to enforce a mechanic’s lien.  OPINION HOLDS: We affirm the district court’s determination concerning the fair and reasonable value of the materials and labor Chumbley furnished but reverse the portion of the court’s order awarding Chumbley attorney fees and remand to the district court to determine whether, in its discretion, Chumbley is entitled to such an award.

Case No. 18-0412:  State of Iowa v. Austin Michael Muilenberg

Filed May 15, 2019

View Opinion No. 18-0412

            Appeal from the Iowa District Court for Clay County, Patrick M. Carr (suppression) and Nancy L. Whittenburg (trial), Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Carr, S.J., takes no part.  Opinion by Mullins, J.  Special concurrence by Tabor, P.J.  (18 pages)

            Austin Muilenburg appeals his convictions of three drug-related crimes following a trial on the minutes of evidence.  He argues: (1) the district court erred in denying his motion to suppress evidence, contending the warrant was unsupported by probable cause; (2) his trial counsel rendered ineffective assistance in failing to challenge the probable cause supporting the warrant, specifically the qualifications of the police officer who applied for the warrant; and (3) there was insufficient evidence to support his convictions of possession of cocaine and prescription drugs without a valid prescription.  OPINION HOLDS: We find there was a substantial basis for the issuing magistrate to conclude probable cause existed for the issuance of the search warrant and the search of Muilenburg’s bedroom did not exceed the scope of the warrant.  Accordingly, we affirm the district court’s denial of Muilenburg’s motion to suppress.  We find Muilenburg has not shown he received ineffective assistance of counsel.  We additionally find there is sufficient evidence to support Muilenburg’s convictions for possession of cocaine and prescription drugs without a valid prescription.  SPECIAL CONCURRENCE ASSERTS: I write separately because I disagree with the majority’s assertion that knowledge of the nature of the prescription drugs is not an element of Iowa Code section 155A.21(1) (2017).  The court in State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973), found proof of unlawful “possession” requires the State to establish the accused knew of the nature of the substance in his or her possession.  I believe the same proof requirement applies to the term “possession” in section 155A.21(1).

Case No. 18-0481:  State of Iowa v. Timothy Douglas Seils

Filed May 15, 2019

View Opinion No. 18-0481

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., and Mullins and Bower, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Timothy Seils challenges the district court’s denial of his motion to suppress following his conviction for operating while intoxicated, third offense.  Seils maintains police officers (1) violated his constitutional rights when they searched his vehicle and (2) improperly invoked implied consent pursuant to Iowa Code section 321J.6 (2017) without satisfying the statutory conditions precedent.  He asks that we reverse the district court’s denial of the motion to suppress and remand for new trial.  OPINION HOLDS:  Because the State failed to prove the implied-consent procedures had been satisfied at the time the trooper invoked Seils’s implied consent, the evidence of Seils’s refusal to test is not admissible.  Additionally, the evidence obtained by the illegal search of Seils vehicle should been suppressed by the district court.  We reverse the district court’s denial of Seil’s motion to suppress the evidence and remand for a new trial without the suppressed evidence.

Case No. 18-0559:  State of Iowa v. Joshua James Sullivan

Filed May 15, 2019

View Opinion No. 18-0559

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Mullins, J., and Danilson, S.J.  Opinion by Danilson, S.J. (10 pages)

            Joshua Sullivan appeals from his conviction on two counts of indecent exposure, each in violation of Iowa Code section 709.9 (2017).  He challenges the sufficiency of the evidence supporting the jury’s findings of guilt and a jury instruction.  OPINION HOLDS: Because there is substantial evidence to support both convictions, and we find no error in the jury instruction given, we affirm.

Case No. 18-0587:  State of Iowa v. Michael Francis Watson

Filed May 15, 2019

View Opinion No. 18-0587

            Appeal from the Iowa District Court for Tama County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            Michael Francis Watson appeals from his conviction for possession of a controlled substance, to wit: methamphetamine.  He argues trial counsel was ineffective in allowing him to plead guilty without a factual basis that he knowingly possessed methamphetamine because there were no lab reports in the record and the minutes of evidence did not identify the “criminalist” who would have provided relevant testimony.  OPINION HOLDS: We take the minutes of evidence as facts in determining whether a factual basis exists for a plea.  Because we find the record discloses ample evidence to satisfy this element of the offense, trial counsel was not ineffective, and we affirm.  

Case No. 18-0588:  State of Iowa v. Eddie DeLong

Filed May 15, 2019

View Opinion No. 18-0588

            Appeal from the Iowa District Court for Cherokee County, Nancy L. Whittenburg, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J. (11 pages)

            Eddie DeLong appeals from judgment and sentence entered upon his convictions for sexual abuse in the third degree as a habitual offender and supplying alcohol to a minor.  He asserts the district court abused its discretion in denying his motion to present testimony about the minor complainant’s prior sex life pursuant to Iowa Rule of Evidence 5.412.  He also challenges the habitual-offender colloquy and the fine imposed upon his conviction as a habitual offender.  OPINION HOLDS: We find no abuse of discretion in the court’s rape-shield ruling.  Accordingly, we affirm DeLong’s convictions.  But we reverse the habitual-offender judgment and remand for further proceedings because DeLong’s stipulation of prior offenses fell short of the requirements in State v. Harrington, 893 N.W.2d 36, 45–46 (Iowa 2017).  We need not reach the issue concerning the concededly erroneous fine as resentencing will be required. 

Case No. 18-0612:  In the Estate of Zaneta Walters

Filed May 15, 2019

View Opinion No. 18-0612

            Appeal from the Iowa District Court for Mitchell County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Vogel, C.J.  (5 pages)

            Robert Walters and Sandi Heter, the objectors, appeal the district court’s ruling on their objection to the final report.  They argue the district court incorrectly determined co-executors, Richard Walters and Shirley Shirley, had not breached their fiduciary duties.  The co-executors argue the district court’s ruling was proper because the objectors have failed to meet their burden of proof.  OPINION HOLDS: On our de novo review, we defer to the district court’s credibility findings and find no credible evidence warranting a disruption of the district court’s ruling.

Case No. 18-0630:  State of Iowa v. Robin Ray Keith

Filed May 15, 2019

View Opinion No. 18-0630

            Appeal from the Iowa District Court for Lucas County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (2 pages)

            Robin Keith appeals following pleas of guilty to a number of charges, contending trial counsel was ineffective and the court erred in accepting his plea.  He asserts the “strong and unfamiliar psychological medication” he was taking interfered with his cognitive abilities and prevented him from understanding his rights and the consequences of entering a guilty plea.  OPINION HOLDS: The record before us is not adequate to explore this ineffective-assistance-of-counsel claim and we preserve the claim for possible postconviction-relief proceedings. 

Case No. 18-0677:  State of Iowa v. Miguel Angel Lorenzo Baltazar

Filed May 15, 2019

View Opinion No. 18-0677

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Opinion by Vogel, C.J. (11 pages)

            Miguel Angel Lorenzo Baltazar appeals his conviction for murder in the first degree.  He argues his counsel was ineffective for failing to object to jury instructions on his justification defense, and both parties argue the court abused its discretion in allowing only certain character evidence of the decedent.  OPINION HOLDS: Because the 2017 amendments to Chapter 704 of the Iowa Code should have resulted in the jury being instructed without the “alternative course of action” language, we find counsel breached an essential duty in failing to object when the older version of the justification instruction was given, and prejudice resulted.  The evidence presented at trial was sufficient to prove Lorenzo Baltazar acted with the specific intent to kill, and thus we reverse and remand for new trial.  Further, should the issue of the character evidence arise during the new trial, we also find the trial court did not abuse its discretion in allowing only certain character evidence.

Case No. 18-0791:  Lindsay Moses v. Zachary Ray Rosol

Filed May 15, 2019

View Opinion No. 18-0791

            Appeal from the Iowa District Court for Grundy County, George L. Stigler, Judge.  AFFIRMED.  Considered by Doyle, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (14 pages)

            The mother appeals the district court award of shared physical care with the father of their one-and-a-half year old son, who, because of a significant hearing deficiency has bilateral cochlear implants.  She contends that (1) the trial court failed to comply with Iowa Rule of Civil Procedure 1.904(1) in not filing written findings; (2) the court should adopt a “special needs best interests” standard for determining physical care of a special-needs child, and (3) shared care with the father is not in the son’s best interest.  Father requests appellate attorney fees.  OPINION HOLDS: Upon de novo review, we find (1) mother failed to preserve error on the written findings issue, but we still conduct a de novo review; (2) we must decline mother’s invitation to adopt a new legal standard as it applies to special-needs children and find the standards in current law provide adequate consideration of special needs of the child; (3) shared physical care of the child is in his best interest; and (4) we decline to award appellate attorney fees.

Case No. 18-0819:  Darin Godfrey v. State of Iowa

Filed May 15, 2019

View Opinion No. 18-0819

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Tabor, J., takes no part.  Opinion by Doyle, J.  (5 pages)

            Darin Godfrey appeals the summary dismissal of his application for postconviction relief.  OPINION HOLDS: Because Godfrey seeks to challenge his requirement to register for the sex offender registry, which has not yet been formally determined by the Iowa Department of Public Safety, the issue is not ripe for review, and summary dismissal was appropriate.  In addition, Godfrey’s second claim of ineffective assistance of counsel is without merit. 

Case No. 18-0861:  In the Matter of the Guardianship of I.P. and K.P.

Filed May 15, 2019

View Opinion No. 18-0861

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A grandmother appeals the dismissal of her petitions for guardianship of her two grandchildren, arguing the establishment of guardianships is in the children’s best interests.  She also requests appellate attorney fees.  OPINION HOLDS: The grandmother did not rebut the statutory preference for parents to retain care and control of their children.  It is in the children’s best interests to deny the guardianships and permit the father to retain care and control of the children.  We decline to award appellate attorney fees.

Case No. 18-0874:  State of Iowa v. Gregory Richard Kuchera

Filed May 15, 2019

View Opinion No. 18-0874

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (3 pages)

            Gregory Kuchera appeals his conviction for carrying a concealed weapon.  He alleges his trial counsel in guilty plea proceedings was ineffective in failing to request withdrawal of his guilty plea when his statements showed he was confused and potentially incompetent.  OPINION HOLDS: Because the record is inadequate on direct appeal, we preserve the claims for postconviction-relief proceedings. 

Case No. 18-0882:  State of Iowa v. Thomas Van Rawls Jr.

Filed May 15, 2019

View Opinion No. 18-0882

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, District Associate Judge.  SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vogel, C.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J. (5 pages)

            Thomas Rawls Jr. appeals the sentences imposed on his convictions of five criminal counts.  He argues the district court abused its discretion in ordering the prison sentences on all counts to be served consecutively and erred in ordering him to reimburse the State for court-appointed attorney fees as restitution without first properly determining his reasonable ability to pay the same.  OPINION HOLDS:  We find no abuse of discretion in the district court’s imposition of consecutive sentences.  We conclude the court erred in determining Rawls possessed the reasonable ability to pay court-appointed attorney fees as restitution because the amount for the same was not before the court.  We vacate the portions of the district court’s sentencing order concerning restitution and remand the case to the district court to order restitution consistent with the supreme court’s ruling in State v. Albright, ___ N.W.2d ___, 2019 WL 1302384 (Iowa 2019). 

Case No. 18-0911:  In re the Marriage of Ramundo

Filed May 15, 2019

View Opinion No. 18-0911

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED ON APPEAL AND CROSS-APPEAL.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (10 pages)

            Former spouses appeal and cross-appeal the district court’s reduction of the husband’s alimony payments.  Both also request appellate attorney fees.  OPINION HOLDS: The former wife’s move to full-time employment and the tripling of her salary constitutes a substantial change in circumstances, and considering other relevant factors, we affirm the district court’s decision to reduce the alimony obligation.  We award the former wife appellate attorney fees. 

Case No. 18-0927:  Maxwell R. Alberhasky v. George Rodney Alberhasky and Grayson H. Alberhasky

Filed May 15, 2019

View Opinion No. 18-0927

            Appeal from the Iowa District Court for Johnson County, Mary E. Howes, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (14 pages)

            Maxwell Alberhasky (Max) appeals the district court’s dismissal of Max’s claim his father, George Rodney Alberhasky (Rod), breached his fiduciary duty in managing assets left to him by his grandmother.  OPINION HOLDS: Because we conclude Max’s petition satisfied our liberal notice-pleading standards, we reverse the district court’s grant of Rod’s motion to dismiss for failure to state a claim upon which relief can be granted.

Case No. 18-0981:  Teresa L. Sladek v. Employment Appeal Board and Kelly Services USA LLC

Filed May 15, 2019

View Opinion No. 18-0981

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

Teresa Sladek appeals the denial of her application for unemployment benefits, challenging the Employment Appeal Board’s determination that she voluntarily quit her employment with temporary services employer Kelly Services USA, LLC without good cause attributable to the employer.  OPINION HOLDS: Like the district court, we affirm the decision of the Employment Appeal Board.

Case No. 18-0998:  State of Iowa v. Timothy Eric Smeltser

Filed May 15, 2019

View Opinion No. 18-0998

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright and Mary Ann Brown, Judges.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (4 pages)

            Following a guilty plea, Timothy Smeltser appeals his sentence, arguing (1) “the district court erred in ordering [him] to reimburse the State for court costs and correctional fees without first considering his reasonable ability to pay such restitution” and (2) “the sentencing court abused its discretion” in considering facts that were “unsupported by the record.”  OPINION HOLDS: We affirm all portions of the sentencing and post-sentencing orders except that portion of the sentencing order imposing correctional fees and court costs.  Applying State v. Albright, 925 N.W.2d 144, 161 (Iowa 2019), we vacate those portions of the orders and remand for receipt of the final restitution plan and consideration of Smeltser’s reasonable ability to pay.

Case No. 18-1051:  Anita Gumm v. Easter Seal Society of Iowa, Inc., American Compensation Ins. Co., and SFM Insurance Company

Filed May 15, 2019

View Opinion No. 18-1051

            Appeal from the Iowa District Court for Polk County, Paul Scott, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Doyle, P.J.  Dissent by Mullins, J.  (10 pages)

            Anita Gumm appeals the denial of her petition for judicial review upholding the Workers’ Compensation Commissioner’s denial of her petition asserting she sustained a cumulative workplace injury.  OPINION HOLDS: We disagree with the agency and district court that Gumm was required to establish she sustained a distinct and discreet disability to recover on a cumulative-injury claim under the circumstances presented.  Under Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), Gumm’s showing of an aggravation of her injury was sufficient to establish a cumulative injury.  Accordingly, we reverse the district court’s denial of Gumm’s petition for judicial review and remand to the commissioner.  DISSENT ASSERTS: I respectfully dissent because I do not believe the Floyd case authorizes Gumm to pursue a cumulative injury claim after a successful resolution of a claim for an underlying injury.

Case No. 18-1137:  State of Iowa v. Tyler Ferguson

Filed May 15, 2019

View Opinion No. 18-1137

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (5 pages)

            Tyler Ferguson appeals the district court’s revocation of his probation, contending the court failed to consider the mitigating circumstances surrounding his probation violation.  OPINION HOLDS: Because the court properly exercised its discretion in viewing the new driving offense as a sufficient reason to impose judgment, we affirm.

Case No. 18-1163:  State of Iowa v. Dean David Geary

Filed May 15, 2019

View Opinion No. 18-1163

            Appeal from the Iowa District Court for Black Hawk County, Patrice Eichman, District Associate Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vogel, C.J., Bower, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            Dean Geary appeals from judgment and sentence entered upon his written plea of guilty to assault causing bodily injury or mental illness.  OPINION HOLDS: Geary was adequately advised of the need to file a motion in arrest of judgment.  Having filed no motion in arrest of judgment, Geary waived his right to challenge the guilty plea.  Because we are unable to determine whether the district court properly exercised its discretion in sentencing Geary, we vacate the sentence and remand for resentencing.

Case No. 18-1225:  Jeremy Hollingshead v. DC Misfits, LLC

Filed May 15, 2019

View Opinion No. 18-1225

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Bower, JJ.  May, J., takes no part.  Opinion by Bower, J.  Dissent by Doyle, P.J.  (7 pages)

Jeramy Hollingshead appeals from the summary-judgment order dismissing his dramshop claim.  OPINION HOLDS: Because Hollingshead failed to substantially comply with Iowa Code section 123.29 (2015) notice requirements by failing to identify the proper licensee, summary judgment was proper.  DISSENT ASSERTS: Here, the notice sets out all the pertinent statutory requisites: plaintiff’s intention to bring a dramshop action and references to the date, place and circumstances causing the injury.  Although the notice’s reference to “Leonard LLC dba Misfits,” the former operator of the bar, as the insured, is in error, I do not believe it deems the notice to be fatally deficient as to content.  I would reverse the district court’s grant of summary judgment.

Case No. 18-1241:  Jennifer Lightfoot v. Jennifer Gehrum n/k/a Jennifer Baumler

Filed May 15, 2019

View Opinion No. 18-1241

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Jennifer Lightfoot appeals the dismissal of her personal-injury action for failure to comply with initial disclosure requirements, claiming the district court abused its discretion.  OPINION HOLDS: We conclude the district court did not abuse its discretion in dismissing the petition as a sanction for the plaintiff’s repeated failure to comply with the disclosure requirements of Iowa Rule of Civil Procedure 1.500(1).

Case No. 18-1292:  State of Iowa v. Darreon Corta Draine

Filed May 15, 2019

View Opinion No. 18-1292

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Blane, S.J.  Opinion by Mullins, J. (11 pages)

            Darreon Draine appeals his conviction of willful injury causing serious injury.  He claims the district court should have ordered a competency evaluation and abused its discretion in denying his motion in arrest of judgment.  OPINION HOLDS: Draine failed to establish probable cause of his incompetency to warrant a competency evaluation.  The district court did not abuse its discretion in denying Draine’s motion in arrest of judgment because the plea proceeding showed Draine entered his plea knowingly and intelligently.  We affirm Draine’s conviction. 

Case No. 18-1296:  State of Iowa v. Randall James Maresch

Filed May 15, 2019

View Opinion No. 18-1296

            Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (3 pages)

            Following a guilty plea, Randall Maresch appeals his sentence, arguing the district court erred in “assessing financial obligations to [him] without first making a constitutionally mandated determination of his reasonable ability to pay.”  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate that portion of the sentencing order imposing an obligation to immediately pay court costs and court-appointed attorney fees pending the completion of a final restitution order and a subsequent determination of Maresch’s reasonable ability to pay.

Case No. 18-1371:  State of Iowa v. Terrence Alonzo Watson

Filed May 15, 2019

View Opinion No. 18-1371

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (4 pages)

            Terrence Watson appeals the sentence imposed upon his conviction for failure to comply with the sex-offender registry requirements, second or subsequent offense, in violation of Iowa Code sections 692A.113(1)(f) and 692A.111(1) (2018), enhanced as a habitual offender pursuant to sections 902.8 and 902.9(3).  Watson contends the district court failed to consider the minimum essential factors and provide sufficient reasons for the sentence imposed.  OPINION HOLDS: The sentence is within statutory limits, and we find no abuse of the court’s sentencing discretion.

Case No. 18-1378:  State of Iowa v. Sefton Royd Akin

Filed May 15, 2019

View Opinion No. 18-1378

            Appeal from the Iowa District Court for Buena Vista County, Charles Borth, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (4 pages)

            Sefton Akin appeals from his conviction for third-offense public intoxication following a guilty plea.  He alleges trial counsel was ineffective for failing to inform him he would be required to submit a DNA sample for the state database.  OPINION HOLDS: Because we cannot tell from this record whether counsel breached a duty or Akin suffered prejudice, we affirm his conviction and preserve the claim for potential postconviction-relief proceedings.

Case No. 18-1387:  Jordan M. Paglia v. Heather A. Taylor

Filed May 15, 2019

View Opinion No. 18-1387

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., Bower, J., and Carr, S.J.  May, J., takes no part.  Opinion by Carr, S.J.  (8 pages)

            Heather Taylor and Jordan Paglia appeal the order establishing custody, visitation, and support of their child.  OPINION HOLDS: I. Affording the district court’s findings the deference they are due, we agree that Jordan has shown he is better able to minister to the child’s long-term needs.  However, we modify the visitation ordered by the court to include provisions for extended visitation during school breaks.  II. It was improper to calculate the amount of Heather’s child support obligation at $15,834 based on her 2016 earnings where, by her own admission, Heather’s current annual income is no less than $29,120.  We therefore remand to the district court to recalculate Heather’s obligation under the child support guidelines based on the financial circumstances of the parties proven at trial, and this opinion.  We deny Jordan’s request for an award of appellate attorney fees.

Case No. 18-1402:  State of Iowa v. Terrance O. Williams

Filed May 15, 2019

View Opinion No. 18-1402

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Dissent by Potterfield, J.  (6 pages)

            Terrance Williams appeals the sentence imposed following his conviction for child endangerment.  OPINION HOLDS: Because Williams never raised an objection or otherwise notified the court concerning its failure to allow the child’s mother to make a statement before pronouncing sentence, the claim is not preserved for our review.  The district court did not consider any unproven charges in sentencing William, and the record shows it exercised its discretion in denying him a deferred judgment.  Accordingly, we affirm.  DISSENT ASSERTS: I would reverse.  The allegation that Williams hit the boy with the belt is neither proven nor admitted, so the district court’s reliance on the unproven fact in sentencing is an abuse of discretion.

Case No. 18-1451:  Kelly Hope Torres v. Daniel Eldon Morrison

Filed May 15, 2019

View Opinion No. 18-1451

            Appeal from the Iowa District Court for Woodbury County, Tod J. Deck, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Mullins, J.  (8 pages)

            Kelly Torres appeals a district court order modifying a custody decree concerning her child.  She argues the child’s father did not meet his burden to show a substantial change in circumstances or that he has a superior ability to minister to the child’s needs.  The father requests an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s modification ruling.  We deny the father’s request for appellate attorney fees.  Costs on appeal are assessed to Kelly. 

Case No. 18-1452:  Molly Arlene Dayton v. Paul Anthony Asberry

Filed May 15, 2019

View Opinion No. 18-1452

            Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.  VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Paul Anthony Asberry appeals from the award of a final protective order against him, arguing (1) insufficient evidence supported its issuance and (2) he did not receive proper notice of a change in the scheduled hearing date.  OPINION HOLDS: We find the notice issue dispositive.  In the absence of personal service, we vacate the final order of protection and remand for further proceedings consistent with this opinion.

Case No. 18-1498:  In the Matter of D.M., Alleged to Be Seriously Mentally Impaired

Filed May 15, 2019

View Opinion No. 18-1498

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            D.M. challenges the trial court’s finding of serious mental impairment, claiming there is insufficient evidence that he poses a risk to his own or others’ safety.  OPINION HOLDS: In light of D.M.’s recent suicidal ideations, refusal to follow-through with mental-health treatment, a telephoned threat to a former employer, and the recent purchase of AR15 rifle, we find clear and convincing evidence to support the court’s finding that D.M. poses a risk to himself or others. 

Case No. 18-1506:  Richard Alan Kessler and Richard L. Kessler v. Mercedes Kessler, Individually and as Co-Executor of the Estate of Charles L. Kessler, and Tom Thompson, as Co-Executor of the Estate of Charles L. Kessler

Filed May 15, 2019

View Opinion No. 18-1506

            Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Richard Alan Kessler appeals his removal as co-executor of his late father’s estate, claiming the district court abused its discretion.  OPINION HOLDS: We conclude the district court did not abuse its discretion in granting the removal petition.  We affirm Kessler’s removal as co-executor.

Case No. 18-1634:  State of Iowa v. Damarcus B. Northern

Filed May 15, 2019

View Opinion No. 18-1634

            Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (3 pages)

            Following a guilty plea, Damarcus Northern appeals his sentence, arguing the district court erroneously ordered him “to pay court costs while finding he had no ability to [pay] fines or pay attorney fees based upon his imminent incarceration.”  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate the sentencing court’s assessment of court costs against Northern pending the completion of a final restitution order and a subsequent determination of Northern’s reasonable ability to pay.

Case No. 18-1691:  Kyler Hester v. Amanda Davis

Filed May 15, 2019

View Opinion No. 18-1691

            Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Doyle, P.J.  (6 pages)

            A father appeals the district court’s custody, visitation, and support order.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court that the child’s best interests are served by placement of the child in the mother’s physical care with the visitation schedule set by the district court.  We also conclude the court’s allocation of the tax exemption to the mother is equitable.  Accordingly, we affirm the district court’s custody order in all respects.

Case No. 18-1836:  In re the Marriage of Anderson and Bumann

Filed May 15, 2019

View Opinion No. 18-1836

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

            Cory Bumann appeals the district court’s modification of the decree dissolving his marriage to Alexis Anderson, formerly Alexis Bumann.  He argues the court erred in not awarding him physical care of the parties’ minor child and in placing too much emphasis on the value of the child’s sibling relationship with Alexis’s other daughter.  OPINION HOLDS:  We affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).  We deny each party’s request for appellate attorney fees.  Costs on appeal are assessed to Cory. 

Case No. 18-1838:  Bradley Wayne Van Gundy v. Jennifer Grace Bolton

Filed May 15, 2019

View Opinion No. 18-1838

            Appeal from the Iowa District Court for Black Hawk County, Linda L. Fangman, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A mother appeals from an order modifying the physical care provisions of a custody order.  She argues physical care should be place with her because she can provide the child with superior care.  She also claims the district court abused its discretion by denying her request for attorney fees and requests appellate attorney fees.  OPINION HOLDS: Because the mother’s move to a different part of the state amounted to a material and substantial change in circumstance and father can provide the child with superior care, we conclude the district court properly modified the physical care arrangement by awarding the father physical care of the child.  The court did not abuse its discretion in declining to award attorney fees, and we decline to award either party appellate attorney fees.

Case No. 19-0213:  In the Interest of F.H., Minor Child

Filed May 15, 2019

View Opinion No. 19-0213

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (3 pages)

A father appeals the termination of his parental rights to his child.  OPINION HOLDS: We affirm the termination of the father’s parental rights under Iowa Code section 232.116(1)(g) and (l) (2018).

Case No. 19-0332:  In the Interest of B.S. and T.S., Minor Children

Filed May 15, 2019

View Opinion No. 19-0332

            Appeal from the Iowa District Court for Mahaska County, Rose Ann Mefford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to two children; she contends the district court erred in finding the statutory grounds for termination were met and termination is not in the children’s best interests.  OPINION HOLDS: On our de novo review, we conclude the district court did not err in finding the statutory grounds for termination were met by clear and convincing evidence.  Considering the children’s safety and need for permanency in the long- and short-term, their best interests are furthered by termination of her parental rights. 

Case No. 19-0354:  In the Interest of D.C. and K.C., Minor Children

Filed May 15, 2019

View Opinion No. 19-0354

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Tabor, J., takes no part.  Opinion by Doyle, J.  (4 pages)

            A father appeals the termination of his parental rights to his children, asking us to place the children in a guardianship with a relative and apply one of the statutory exceptions to termination.  OPINION HOLDS: Upon our de novo review of the evidence, we agree termination is in the children’s best interests and decline to apply the exception to termination provided in Iowa Code section 232.116(3)(a) (2018). 

Case No. 19-0376:  In the Interest of J.J., Minor Child

Filed May 15, 2019

View Opinion No. 19-0376

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (8 pages)

            A father appeals the termination of his parental rights to his minor child.  He challenges the sufficiency of the evidence supporting the grounds for termination and contends termination is not in the child’s best interests.  The father additionally challenges the denial of his motion to reconsider, enlarge, or amend the juvenile court’s findings.  OPINION HOLDS:  We affirm the termination of the father’s parental rights.

Case No. 19-0438:  In the Interest of D.W., Minor Child

Filed May 15, 2019

View Opinion No. 19-0438

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for terminating the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) (2018).  Terminating parental rights is in the child’s best interests, and the juvenile court properly denied the mother’s request for a six-month extension.

Case No. 17-1478:  State of Iowa v. Julie Ann Breeding

Filed May 01, 2019

View Opinion No. 17-1478

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

            Julie Ann Breeding appeals following her convictions for possession of methamphetamine with intent to deliver and failure to possess a drug tax stamp as a second or subsequent offender, raising claims of insufficient evidence, prosecutorial misconduct, and district court abuse of sentencing discretion.  OPINION HOLDS: We affirm the jury’s findings of guilt and the district court’s sentences.  We preserve the prosecutorial misconduct claim for possible postconviction relief.

Case No. 17-1652:  State of Iowa v. Christopher Dewayne Johnson

Filed May 01, 2019

View Opinion No. 17-1652

            Appeal from the Iowa District Court for Wapello County, Shawn Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (4 pages)

            Christopher Johnson appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: Most of Johnson’s claims concern his counsel’s trial strategy rather than a breach of duty.  Of the two remaining claims, we find his trial counsel did not breach a duty by failing to ensure he testified at trial and his counsel’s failure to depose one witness did not prejudice him.  Johnson has failed to show his trial counsel was ineffective with regard to any individual claim or cumulative prejudice.  Accordingly, we affirm.  

Case No. 17-1663:  State of Iowa v. Nicholas Cagle

Filed May 01, 2019

View Opinion No. 17-1663

            Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (20 pages)

            Nicholas Cagle appeals his conviction for sexual abuse in the second degree.  He asserts that his trial counsel was ineffective in failing to object to prosecutorial misconduct, failing to lodge foundation and confrontation objections to the admission of a video exhibit, failing to object to claimed vouching testimony by expert witness in support of child witness, and that trial court erred in overruling his hearsay objection to admission of child witness’s recorded pre-trial interview.  OPINION HOLD: Trial counsel was not ineffective, and trial court did not err in admitting video exhibit.  We affirm.

Case No. 17-1679:  Daniel J. Dawson v. State of Iowa

Filed May 01, 2019

View Opinion No. 17-1679

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Bower, JJ.  Opinion by Potterfield, P.J.  (24 pages)

            Daniel Dawson appeals from the denial of his application for postconviction relief (PCR) challenging his convictions for murder in the second degree; assault with intent to inflict serious injury; and domestic abuse assault, second offense.  On appeal, Dawson argues for the first time that his trial counsel provided ineffective assistance by failing to move for a mistrial during closing arguments based on prosecutorial error; Dawson maintains all counsel since his first have been ineffective in failing to raise the issue sooner.  Dawson raises an additional sixteen claims without the assistance of counsel; we address each one below.  OPINION HOLDS: Having considered each of Dawson’s seventeen claims of ineffective assistance and finding no reversible error, we affirm the denial of Dawson’s application for PCR. 

Case No. 18-0083:  State of Iowa v. Ramon Hernandez-Mendoza

Filed May 01, 2019

View Opinion No. 18-0083

            Appeal from the Iowa District Court for Crawford County, Jeffrey A. Neary, Judge.  CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vogel, C.J. (11 pages)

            Ramon Hernandez-Mendoza appeals his convictions and sentence for homicide by vehicle, controlled substance violations, and supplying alcohol to minors.  He argues his counsel was ineffective for failing to move for judgment of acquittal on the basis of causation for the homicide by vehicle charge.  He also argues his sentences are illegal because the sentencing order is inconsistent on whether it applied an enhancement and it imposed a minimum term of confinement on one charge without authority.  The State in turn argues his sentences are illegal because the court waived a minimum term of confinement on other charges without authority.  OPINION HOLDS: Because substantial evidence supports finding his intoxicated driving was a factual cause and—if applicable—a proximate cause of death, we find his counsel was not ineffective.  We also find his sentences are illegal because the court misapplied minimum terms of confinement.  Therefore, we affirm his convictions, vacate his sentences in part, and remand for the district court to amend the judgment and sentences.

Case No. 18-0261:  In re Estate of Franken

Filed May 01, 2019

View Opinion No. 18-0261

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  Special Concurrence by Mullins, J.  Dissent by Vogel, C.J.  (9 pages)

            John and Dessie Rottinghaus appeal from the district court’s order granting the estate’s motion for summary judgment.  The Rottinghauses contend (1) Iowa Code section 614.17A (2017) was not “timely raised as a defense,” (2) the estate was not “a proper party” to raise section 614.17A as a defense, and (3) the language of sections 614.17A and 614.24 does not “bar the action by the claimants.”  OPINION HOLDS: We conclude the district court did not err in granting summary judgment for the estate.  SPECIAL CONCURRENCE ASSERTS: The majority opinion in this case and the decision in West Lakes Properties, L.C. v. Greenspon Property Management, Inc., No. 16-1463, 2017 WL 4317297 (Iowa Ct. App. Sept. 27, 2017) are limited by the facts and issues presented.  DISSENT ASSERTS: Because I view this case as a simple breach of contract claim and not subject to Iowa Code section 614.17A, I respectfully dissent. 

Case No. 18-0294:  State of Iowa v. Earnest B. Bynum

Filed May 01, 2019

View Opinion No. 18-0294

            Appeal from the Iowa District Court for Linn County, Nicholas Scott, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (15 pages)

            Earnest Bynum appeals following his conviction for falsely reporting a criminal offense, in violation of Iowa Code section 718.6(1) (2016).  Bynum asserts he was denied an impartial jury of his peers, the court abused its discretion in allowing prior-bad-acts evidence and photographs of firearms used during the police response, and the court erred in denying Bynum’s requested jury instruction that carrying weapons is not a crime if the person has a permit.  OPINION HOLDS: Finding no abuse of discretion in the trial court’s denial of Bynum’s motions for mistrial or its evidentiary and instructional rulings, we affirm.

Case No. 18-0298:  In re the Marriage of Johanningmeier

Filed May 01, 2019

View Opinion No. 18-0298

            Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.  REVERSED AND REMANDED ON APPEAL; AFFIRMED on CROSS-APPEAL.  Heard by Potterfield, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (13 pages)

            Roxanne Johanningmeier appeals, and Travis Johanningmeier cross-appeals, the district court order denying both parties’ petitions to modify a dissolution-of-marriage decree.  OPINION HOLDS: We affirm the court’s denial of Travis’s petition to modify the physical-care provisions of the dissolution decree as he failed to prove that a material change in circumstances occurred since the dissolution decree.  We reverse the court’s denial of Roxanne’s petition to modify the child-support provisions of the decree and remand for a calculation of child support and medical support based on the district court’s findings of Roxanne’s annual income of $37,000.00 and Travis’s monthly income of $25,000.00 under the current guidelines.  The modified support orders shall be retroactive to February 2018.  We award Roxanne $5000.00 in appellate attorney fees.

Case No. 18-0354:  State of Iowa v. Griffin Edward Meyer

Filed May 01, 2019

View Opinion No. 18-0354

            Appeal from the Iowa District Court for Des Moines County, Emily S. Dean, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (10 pages)

            A defendant appeals his conviction for being absent from custody.  He challenges the sufficiency of the evidence and claims his trial counsel was deficient in several respects.  OPINION HOLDS:  Substantial evidence supported the defendant’s conviction, and he suffered no prejudice from the alleged deficiencies in his counsel’s representation.

Case No. 18-0369:  In re the Marriage of Ayala

Filed May 01, 2019

View Opinion No. 18-0369

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

            Bryant Ayala appeals the property division provisions in the district court’s decree dissolving his marriage with Laura Ayala.  He claims the court should have set aside additional amounts to him for premarital assets and erred in its valuation of some property.  OPINION HOLDS: We affirm the court’s decree.

Case No. 18-0371:  Woodruff Construction, LLC v. Steven P. Christensen, Individually and D/B/A Christensen Construction Company

Filed May 01, 2019

View Opinion No. 18-0371

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

            Woodruff Construction, LLC (Woodruff) appeals the district court order entering judgment in favor of Steven P. Christensen and Christensen Construction Company (Christensen) on its breach-of-contract counterclaim.  Woodruff challenges the district court’s finding that it breached its contract with Christensen and its damage calculation.  OPINION HOLDS: The bulk of Woodruff’s claims concern its defense that it could not perform under the deadlines of the contract based on circumstances beyond its control.  Because it was not objectively impossible for Woodruff to perform, its failure to do so is not excused.  Substantial evidence supports the finding that Woodruff breached the contract with Christensen, and there is sufficient evidence to support the district court’s award of damages. 

Case No. 18-0429:  Scott Allen Doornink v. State of Iowa

Filed May 01, 2019

View Opinion No. 18-0429

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

            Bryant Ayala appeals the property division provisions in the district court’s decree dissolving his marriage with Laura Ayala.  He claims the court should have set aside additional amounts to him for premarital assets and erred in its valuation of some property.  OPINION HOLDS: We affirm the court’s decree.

Case No. 18-0483:  State of Iowa v. Kari Lee Fogg

Filed May 01, 2019

View Opinion No. 18-0483

            Appeal from the Iowa District Court for Boone County, Paul G. Crawford (motion to suppress) and Stephen A. Owen (trial), District Associate Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (11 pages)

           

            Kari Fogg appeals her conviction of operating while intoxicated (OWI), first offense.  She contends the district court erred in denying her motion to suppress evidence on the basis of an allegedly unreasonable seizure.  She also argues her counsel rendered ineffective assistance in failing to object to alleged prosecutorial error in the State’s closing argument.  OPINION HOLDS: Having found the district court correctly denied Fogg’s motion to suppress and counsel was not ineffective as alleged, we affirm Fogg’s conviction of OWI, first offense. 

Case No. 18-0566:  Marsha Whitlow v. Ron McConnaha, Jodi McConnaha, and Timothy Newton

Filed May 01, 2019

View Opinion No. 18-0566

            Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, Judge.  REVERSED AND REMANDED.  Heard by Mullins, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (13 pages)

            Marsha Whitlow, plaintiff in a comparative-fault action against two defendants, appeals the denial of her motion for mistrial and motion for new trial.  The verdict form wrongly instructed the jury to stop answering special interrogatories after it found for the first defendant, thus the jury did not render a verdict as to the second defendant.  Whitlow alleges this constituted a hung jury or inconsistent verdicts warranting a new trial.  Although the court did order new trial as to the second defendant, the plaintiff contends both defendants must be retried.  OPINION HOLDS: We agree the incomplete verdict requires a new trial involving both defendants. 

Case No. 18-0575:  State of Iowa v. Abraham Roberts

Filed May 01, 2019

View Opinion No. 18-0575

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

            Abraham Roberts appeals his conviction for first-degree murder, asserting the jury verdict is not supported by substantial evidence.  OPINION HOLDS: Because a reasonable jury could find ample evidence in the record to support the conviction, we affirm. 

Case No. 18-0611:  In re the Marriage of Seay

Filed May 01, 2019

View Opinion No. 18-0611

            Appeal from the Iowa District Court for Lee (North) County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            DeAngelo Seay appeals the district court’s order modifying the dissolution decree dissolving his marriage to Dena Seay, claiming the court erred in modifying his summer visitation and denying his request to reduce his child support obligation.  OPINION HOLDS: We affirm the district court.

Case No. 18-0621:  Karen K. Pistek v. Dalton S. Karsjens

Filed May 01, 2019

View Opinion No. 18-0621

            Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (10 pages)

            Karen Pistek appeals the district court order establishing paternity, custody, visitation, and support of the child she shares with Dalton Karsjens.  OPINION HOLDS: I. The district court did not abuse its discretion in denying Karen’s request for additional testimony.  II. Affording the district court’s findings the deference they are due, we agree with its determination that Dalton has shown he is better able to minister to O.K.K.’s long-term best interests and affirm the physical-care provision.  III. Considering the child’s young age and the distance between the parties’ homes, we find the visitation schedule set forth in the court’s order is in the child’s best interests and affirm.  IV. Because the record supports the parties’ earnings as found by the district court, we affirm the portion of the court’s order relating to child support.  V. Because there is no common law or statutory right to such a subsidy for children born to unmarried parents, we modify the order to eliminate the postsecondary education subsidy.  VI. We decline to award either party their appellate attorney fees.

Case No. 18-0622:  Reicher Electric, Inc. v. Atul Patel and Shri Ganapati & Bajrangbali, Inc., and Iowa Corporation, d/b/a Fairfield Inn & Suites

Filed May 01, 2019

View Opinion No. 18-0622

            Appeal from the Iowa District Court for Black Hawk County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Reicher Electric, Inc. (Reicher) appeals the district court’s verdict in favor of Shri Ganapati & Bajrangbali, Inc. (SGB).  Reicher contends SGB was unjustly enriched by receiving the benefit of work when Reicher was not paid.  OPINION HOLDS: We find Reicher did not establish a direct contract between Reicher and SGB and cannot support a claim of unjust enrichment.

Case No. 18-0644:  State of Iowa v. Mangok Ajuet Kodok

Filed May 01, 2019

View Opinion No. 18-0644

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

            Mangok Kodok pled guilty to one count of possession of a controlled substance (marijuana) in case number SRCR305546 and another count in case number SRCR308868.  On appeal, he challenges the district court’s revocation of his deferred judgment in case SRCR305546 and argues there is not a factual basis to support his guilty plea in case SRCR308868.  Additionally, he claims the court abused its discretion in sentencing him to jail time on the two convictions.  OPINION HOLDS: Having found no error or abuse of discretion, we affirm.

Case No. 18-0683:  Robert J. Hemmingsen and Cheryl R. Hemmingsen v. Robert J. Mings, Jani S. Mings, and Kathleen L. Mings

Filed May 01, 2019

View Opinion No. 18-0683

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

            The Hemmingsens appeal the district court’s grant of summary judgment in favor of the Mings, contending the court erred in concluding their claim could have been fully and fairly adjudicated in a prior action.  OPINION HOLDS: We conclude the doctrine of claim preclusion bars the present action, and we affirm the district court’s ruling.

Case No. 18-0715:  In re the Detention of Robert Swanson

Filed May 01, 2019

View Opinion No. 18-0715

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by per curiam.  (8 pages)

            Robert Swanson appeals the order continuing his commitment as a sexually violent predator.  OPINION HOLDS: Viewing the evidence in the light most favorable to the State and leaving credibility determinations to the district court, substantial evidence supports a finding that Swanson has a mental abnormality affecting his emotional or volitional capacity and is likely to engage in predatory acts that constitute sexually violent offenses if discharged from treatment.  Because the State proved beyond a reasonable doubt that Swanson’s commitment should continue, we affirm.

Case No. 18-0722:  Michael W. King v. Gage M. Smith

Filed May 01, 2019

View Opinion No. 18-0722

            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 per curiam.  (6 pages)

            Gage Smith appeals following the issuance of a final domestic abuse protective order against him.  OPINION HOLDS: Because we find sufficient evidence supports the district court’s finding that Smith committed domestic abuse against King, we affirm. 

Case No. 18-0736:  State of Iowa v. Samantha Bailey

Filed May 01, 2019

View Opinion No. 18-0736

            Appeal from the Iowa District Court for Audubon County, Susan Christensen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Samantha Bailey appeals from judgment and sentences entered following her plea of guilty to two counts of child endangerment and one count of neglect of a dependent person.  She contends the district court abused its discretion in denying her motions in arrest of judgment and to withdraw her pleas.  She also challenges the imposition of consecutive sentences, and she claims there is not a factual basis for her pleas.  OPINION HOLDS: Because the district court did not abuse its discretion in denying Bailey’s late-filed motions, the court did not err in imposing consecutive sentences, and there is a factual basis for her pleas, we affirm.

Case No. 18-0747:  State of Iowa v. Destiny Brown

Filed May 01, 2019

View Opinion No. 18-0747

            Appeal from the Iowa District Court for Black Hawk County, Brook Jacobsen, District Associate Judge.  AFFIRMED.  Heard by Mullins, P.J., Vogel, C.J., and Vaitheswaran, Doyle, and Tabor, JJ.  Opinion by Mullins, P.J. (10 pages)

 

            Destiny Brown appeals her convictions of two counts of second-offense possession of a controlled substance, contending the district court erred in denying her motion to suppress evidence obtained as a result of a traffic stop.  She contends the State failed to meet its burden to prove the continued detention following the initial stop of her vehicle was constitutional.  She additionally argues the stopping officer’s failure “to diligently and reasonably investigate the reasonable suspicion for the traffic stop” rendered the continued detention unconstitutional.  OPINION HOLDS: We affirm the denial of Brown’s motion to suppress. 

Case No. 18-0796:  In the Interest of K.E., Minor Child

Filed May 01, 2019

View Opinion No. 18-0796

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            K.E. appeals after being adjudicated a delinquent for theft in the second degree, possession of stolen property, in violation of Iowa Code sections 714.1(1), 714.1(4), and 714.2(2) (2017).  He alleges the State failed to prove the theft occurred within the statute of limitations, trial counsel was ineffective in failing to move for a judgment of acquittal, and there is insufficient evidence K.E. knew the four-wheeler in his possession was stolen.  OPINION HOLDS: The State proved the delinquent act occurred in June 2017, and there is substantial evidence K.E. believed the vehicle in his possession was stolen.  We affirm.

Case No. 18-0829:  State of Iowa v. Joseph Ronald Banks

Filed May 01, 2019

View Opinion No. 18-0829

            Appeal from the Iowa District Court for Buchanan County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            After a bench trial, Joseph Banks was found guilty of lascivious acts with a child, in violation of Iowa Code sections 709.8(1)(a), 709.8(2)(a), and 903B.1 (2016).  He contends the trial court abused its discretion in denying his motion for new trial, asserting the verdict is contrary to the weight of the evidence.  OPINION HOLDS: Finding no abuse of the trial court’s discretion here, we affirm.

Case No. 18-0939:  State of Iowa v. Hal Charles Runner

Filed May 01, 2019

View Opinion No. 18-0939

            Appeal from the Iowa District Court for Poweshiek County, Annette J. Scieszinski, Judge.  AFFIRMED.  Considered by Vogel, C.J., Tabor, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            Hal Runner appeals his restitution order for court-appointed attorney fees, asserting the court used an incorrect standard to determine his ability to pay.  OPINION HOLDS: We find the court properly considered Runner’s ability to pay before ordering restitution at both his sentencing and resentencing hearings.  Therefore, we affirm the restitution order.

Case No. 18-0969:  In re the Marriage of Verdoorn

Filed May 01, 2019

View Opinion No. 18-0969

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Shelly Verdoorn appeals the property division in the parties’ dissolution decree.  OPINION HOLDS:  We determine the amount of $93,200.00, representing her interest in a home she owned prior to the marriage, should be set aside to Shelly as her premarital property.  We modify the decree to decrease the property settlement payable from Shelly to Troy Verdoorn.  We affirm the dissolution decree as modified.

Case No. 18-0977:  State of Iowa v. Brown Dennis

Filed May 01, 2019

View Opinion No. 18-0977

            Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., Mullins, J., and Blane, S.J.  Opinion by Mullins, J.  (3 pages)

            Brown Dennis appeals the sentences imposed upon his two misdemeanor theft convictions.  He argues the court abused its discretion in failing to articulate adequate reasons for the sentences imposed.  OPINION HOLDS: The district court abused its discretion in considering a sentencing factor not supported by the record.  Consequently, we vacate the sentences and remand for resentencing.

Case No. 18-0984:  Jon D. Luckstead v. Iowa Department of Transportation

Filed May 01, 2019

View Opinion No. 18-0984

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Jon Luckstead appeals the district court judgment finding no compensable taking occurred due to the Iowa Department of Transportation’s relocation of the access point to Luckstead’s property and finding as proper the compensation awarded by the Dubuque County Compensation Commission for two parcels of land.  OPINION HOLDS: We find the district court correctly found the access issue was not a compensable taking and affirm.

Case No. 18-1044:  State of Iowa v. Dana Robert Cherry

Filed May 01, 2019

View Opinion No. 18-1044

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            Dana Cherry appeals his conviction for driving while barred.  He claims the district court erred in failing to rule on his motion in arrest of judgment prior to sentencing and his counsel was ineffective for failing to ensure the court addressed the motion prior to sentencing.  Cherry also claims the district court abused its discretion by failing to consider the sentence he recommended outside the plea agreement.  OPINION HOLDS: We find Cherry’s motion in arrest of judgment was untimely, preserve the ineffective-assistance claim, and find the sentencing claim is moot.  We affirm.

Case No. 18-1067:  In re the Estate of Mrla

Filed May 01, 2019

View Opinion No. 18-1067

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Defendants appeal the district court decision finding there was good cause for the failure of Robert Mrla to timely serve notice of his petition to set aside a will and petition for breach of contract to make a will.  OPINION HOLDS: We find Robert was required to serve notice to the defendants.  The defendants’ petition for declaratory judgment did not waive their claims regarding untimely service of process.  The district court erred in finding Robert showed good cause for the delay in service.  We reverse the decision of the district court and remand.

Case No. 18-1125:  John Winston Lusk v. State of Iowa

Filed May 01, 2019

View Opinion No. 18-1125

            Appeal from the Iowa District Court for Floyd County, Christopher Foy, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (5 pages)

            John Lusk appeals the denial of his application for postconviction relief, for the first time raising claims that his postconviction-relief counsel provided ineffective assistance.  OPINION HOLDS: Lusk’s complaints concerning postconviction counsel do not rise to the level of structural error.  In order to resolve questions concerning the performance of his postconviction counsel, Lusk must file a separate application for postconviction relief promptly following this appeal.

Case No. 18-1144:  State of Iowa v. Antoine J. Allen

Filed May 01, 2019

View Opinion No. 18-1144

            Appeal from the Iowa District Court for Clinton County, Henry W. Latham, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.  Opinion by Bower, J. (5 pages)

            Antoine Allen appeals his conviction for first-degree robbery, claiming trial counsel was ineffective for failing to object to an in-court identification and failing to request an instruction on eyewitness identification.  OPINION HOLDS: We affirm the conviction and preserve the ineffective-assistance claims for possible postconviction-relief proceedings.

Case No. 18-1170:  Scott Cooper v. City of Reinbeck, Reinbeck Telecommunications Utility, and Tim Johnson, Mayor of the City of Reinbeck

Filed May 01, 2019

View Opinion No. 18-1170

            Appeal from the Iowa District Court for Grundy County, Bradley J. Harris, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vogel, C.J.  (9 pages)

            Scott Cooper appeals the grant of summary judgment dismissing his defamation claim against defendants City of Reinbeck, Reinbeck Telecommunications Utility (RTU), and Tim Johnson.  He argues the defendants are not entitled to absolute or qualified privilege on their allegedly defamatory statements contained in their letter prepared for Cooper’s unemployment proceeding and in statements to the RTU board and city council.  OPINION HOLDS: Because Cooper has not shown a genuine issue of material fact as to whether the defendants acted with actual malice or otherwise abused their immunity under qualified privilege, we affirm the district court’s grant of summary judgment.

Case No. 18-1191:  State of Iowa v. Rodney Lewis Cockhren

Filed May 01, 2019

View Opinion No. 18-1191

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vogel, C.J. (6 pages)

            Rodney Cockhren appeals his conviction and sentence after he entered into an Alford plea for second-degree burglary.  He claims his counsel was ineffective for allowing him to enter into the Alford plea despite a lack of factual basis for the plea.  OPINION HOLDS: We find Cockhren may not rely on the additional minutes of evidence filed after he appealed and his counsel was not ineffective.

Case No. 18-1197:  State of Iowa v. Michael L. Croft, Jr.

Filed May 01, 2019

View Opinion No. 18-1197

            Appeal from the Iowa District Court for Dallas County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J. (3 pages)

            Michael Croft Jr. appeals from his conviction for theft in the fourth degree, in violation of Iowa Code sections 714.1(1) and 714.2(4) (2018), contending there is insufficient evidence to support the jury’s finding on the element of identity.  OPINION HOLDS: Upon our review, we affirm.

Case No. 18-1270:  Clarence G. Bryant v. State of Iowa

Filed May 01, 2019

View Opinion No. 18-1270

            Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Doyle, J.  (4 pages)

            Clarence Bryant appeals the denial of his motion to strike court costs arguing Iowa Code section 822.2(1) (2018) prohibits assessment of a filing fee on applications for postconviction relief.  OPINION HOLDS:  Although section 822.2(1) allows initiation of a postconviction action without requiring the applicant to first pay a filing fee, the filing fee is recoverable in the event that the PCR applicant is unsuccessful in securing relief.  Accordingly, we affirm.

Case No. 18-1308:  In re the Marriage of Nevins

Filed May 01, 2019

View Opinion No. 18-1308

            Appeal from the Iowa District Court for Davis County, Myron L. Gookin, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            Matthew Nevins challenges the physical-care, visitation, child-support, and attorney-fees provisions of the decree dissolving his marriage to Kelsey Nevins.  Matthew maintains the parties’ children should have been placed in his physical care or, alternatively, he and Kelsey should share joint physical care.  Additionally, he challenges the district court’s determination of each party’s income for the purposes of calculating child support and claims the court abused its discretion in ordering him to pay $2000 of Kelsey’s attorney fees.  On appeal, Kelsey asks that we affirm the district court’s decree and award her an additional $16,982.50 in appellate attorney fees.  OPINION HOLDS: We affirm the district court’s decision to place the parties’ children in Kelsey’s physical care, but we adjust the parenting-time schedule to give Matthew an additional overnight time with the children each week.  As a result of the change in parenting time, we remand to the district court to determine if the extraordinary visitation credit should be applied to Matthew’s child-support obligation.  We affirm the district court’s award of $2000 of attorney fees to Kelsey and award Kelsey $2000 in appellate attorney fees.

Case No. 18-1479:  State of Iowa v. Cody Aaron Deneve

Filed May 01, 2019

View Opinion No. 18-1479

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Mullins, J. (5 pages)

            Cody Deneve appeals his guilty plea to possession of heroin with intent to deliver, as a habitual offender, contending he received ineffective assistance of counsel.  OPINION HOLDS: We find the record inadequate to decide whether Deneve was prejudiced.  We therefore affirm his conviction but preserve his ineffective-assistance claim for postconviction-relief proceedings. 

Case No. 18-1510:  State of Iowa v. Derek A. Westwater

Filed May 01, 2019

View Opinion No. 18-1510

            Appeal from the Iowa District Court for Lee (South) County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Per Curiam.  (7 pages)

            Derek Westwater appeals his conviction for harassment in the first degree.  OPINION HOLDS:  We find Westwater failed to show he received ineffective assistance because defense counsel permitted him to plead guilty to a count where there was not a factual basis, as there was a sufficient factual basis for the plea.  We affirm Westwater’s conviction.

Case No. 18-1644:  In the Interest of G.R., Minor Child

Filed May 01, 2019

View Opinion No. 18-1644

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            G.R. appeals the juvenile court decision finding he committed the delinquent act of sexual abuse in the second degree.  OPINION HOLDS:  We find the court did not abuse its discretion in denying G.R.’s request for a consent decree or in determining G.R. should be required to register as a sex offender.  We affirm the decision of the juvenile court.

Case No. 18-1690:  In re the Marriage of Seward

Filed May 01, 2019

View Opinion No. 18-1690

            Appeal from the Iowa District Court for Hardin County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            Nicole Seward appeals the modification of the visitation and child support provisions of her dissolution decree with Adam Seward.  She argues the district court improperly acted sua sponte by modifying the visitation provision and the child support provision of the decree because Adam’s petition for modification only requested modification of the physical care provision.  In the event the court acted properly, Nicole argues Adam failed to show a change in circumstance warranting modification of the visitation provision.  She also claims the district court erred in denying her request for attorney fees.  OPINION HOLDS: The parties were aware visitation and child support were at issue as evidenced by their trial testimony.  As a result, the court’s modification of visitation and child support was not improper.  There was a change in circumstance warranting modification of the visitation provision and the modification was in the children’s best interests.  The district court’s modification of the child support provision was equitable to all parties.  Finally, the court did not abuse its discretion in declining to award attorney fees.

Case No. 18-1926:  Tyler Andrew Swift v. Kabra Grabill

Filed May 01, 2019

View Opinion No. 18-1926

            Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Kabra Grabill appeals from the child visitation provisions of her decree with Tyler Swift.  She asserts the district court should have granted her additional visitation with their child, K.S.  OPINION HOLDS: We find the district court should not have granted Swift discretion to decide visitation with Grabill. Therefore, we reverse that part of the order and remand for entry of an order for definite visitation with Grabill.

Case No. 18-2045:  In the Interest of A.C., M.B., and B.E., Minor Children

Filed May 01, 2019

View Opinion No. 18-2045

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            The State appeals an order in a child-in-need-of-assistance proceeding returning custody of a child to her mother and scheduling the return of a second child within forty-five days of the order, arguing (1) both children would be subject to harm if returned and (2) the juvenile court should have changed the permanency goal to termination of the mother’s parental rights.  OPINION HOLDS: We affirm the juvenile court’s order in all respects except that we reverse that portion of the order requiring immediate reunification of the youngest child with the mother and reunification of the second child with the mother within forty-five days.  We remand for further proceedings consistent with this opinion.

Case No. 19-0154:  In the Interest of H.S., Minor Child

Filed May 01, 2019

View Opinion No. 19-0154

            Appeal from the Iowa District Court for Clay County, Andrew Smith, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

            A mother appeals removal and adjudication orders involving her child, raising claims that the district court erroneously required participation in pre-adjudication services and improperly relied on her refusal to take a drug test in adjudicating the child in need of assistance.  She also asserts the statutory grounds for adjudication cited by the district court were not satisfied.  OPINION HOLDS: The district court acted appropriately in basing the temporary removal order on the mother’s refusal to take the test requested by the child protection worker.  The court also cited other factors to support adjudication of the child as a child in need of assistance.  For that reason, the court’s reliance on the compelled drug-testing portion of the removal order does not require reversal of the adjudicatory order.  As for the statutory grounds cited in support of adjudication, we reverse the adjudication under Iowa Code section 232.2(6)(b) (2018) and affirm the adjudication under section 232.2(6)(c)(2) and section 232.2(6)(n).

Case No. 19-0196:  In the Interest of D.S. and B.S., Minor Children

Filed May 01, 2019

View Opinion No. 19-0196

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (6 pages)

Parents separately appeal the termination of their parental rights to their two minor children, challenging the grounds of the district court’s decision and arguing that termination was not in the children’s best interests.  OPINION HOLDS: We affirm the termination of parental rights to the children.

Case No. 19-0203:  In the Interest of K.H. and K.H., Minor Children

Filed May 01, 2019

View Opinion No. 19-0203

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Tabor, J., takes no part.  Opinion by Mullins, J.  (3 pages)

            A father appeals the termination of his parental rights to his two minor children.  OPINION HOLDS: We affirm the termination of the father’s parental rights. 

Case No. 19-0233:  In the Interest of B.P., Minor Child

Filed May 01, 2019

View Opinion No. 19-0233

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J.  (7 pages)

            A mother and father separately appeal the order terminating their parental rights to one child.  The mother contends there was not clear and convincing evidence to support the statutory grounds for termination.  Both parents assert the court should have established a guardianship in the child’s current placement rather than terminate their rights.  OPINION HOLDS: The mother has waived the statutory-grounds argument by not citing the ground she challenges.  But even if she had not waived her challenge, we find termination appropriate under Iowa Code section 232.116(1)(f) (2018).  Further, a guardianship is not in the child’s best interests.  We affirm termination as to both appeals. 

Case No. 19-0245:  In the Interest of J.M., Minor Child

Filed May 01, 2019

View Opinion No. 19-0245

            Appeal from the Iowa District Court for Greene County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (3 pages)

            A father appeals the termination of his parental rights, claiming grounds for termination have not been proved.  OPINION HOLDS: There is clear and convincing evidence to support termination of the father’s parental rights and an extension of time is not warranted.  We therefore affirm.

Case No. 19-0282:  In the Interest of G.J., Minor Child

Filed May 01, 2019

View Opinion No. 19-0282

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge. AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find reasonable efforts were made to reunify the family and the child could not be safely returned to the mother’s care even with additional services and time.  We affirm the termination of her parental rights. 

Case No. 19-0323:  In the Interest of A.B. and A.B., Minor Children

Filed May 01, 2019

View Opinion No. 19-0323

            Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the mother’s parental rights.  It is not in the children’s best interests to give the mother additional time to work on reunification.  Termination of the mother’s rights is in the children’s best interests.  Although the father’s rights could not be terminated at the time of the termination hearing because he had not received adequate notice, the court could proceed with termination of the mother’s rights.  We affirm the decision of the juvenile court.

Case No. 19-0372:  In the Interest of J.W., K.W., and G.J., Minor Children

Filed May 01, 2019

View Opinion No. 19-0372

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (17 pages)

            Parents separately appeal the termination of their parental rights to their respective children.  The father argues the Iowa Department of Human Services failed to make reasonable efforts to facilitate reunification and termination is not in his child’s best interests because a guardianship could have been established in the paternal grandmother.  The mother challenges the sufficiency of the evidence underlying the grounds for termination cited by the juvenile court, argues termination is not in the children’s best interests due to the parent-child bond, and maintains she should have been granted additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 17-1534:  State of Iowa v. Abraham Petro Riko

Filed Apr 17, 2019

View Opinion No. 17-1534

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

            Abraham Riko appeals from judgment and sentence following his convictions for second-degree theft (two counts), assault on a peace officer, and first-degree eluding.  He alleges there is insufficient evidence to support the charges and trial counsel was ineffective in failing to object to a jury instruction on the elements of eluding that included the phrase “and/or.”  OPINION HOLDS: Because substantial evidence supports his convictions and Riko’s ineffectiveness claims fail, we affirm.

Case No. 17-1567:  State of Iowa v. Aaron Christopher Ortiz

Filed Apr 17, 2019

View Opinion No. 17-1567

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (14 pages)

            Aaron Ortiz appeals his convictions and sentence for assault with intent to commit sexual abuse causing bodily injury.  He contends his status as a ward and his intellectual disabilities prevented him from making legal decisions, and his plenary guardian should have been involved at all stages of the criminal case—especially the competency proceedings and the guilty plea hearing.  He seeks to establish he is excused from the rules of error preservation due to structural error.  OPINION HOLDS: On this undeveloped record, neither the structural error nor the competency issues allow us to reach the merits of the challenge.  We also find Ortiz’s sentence is not categorically unconstitutional. 

Case No. 17-1739:  State of Iowa v. LB Deontay Goodjoint

Filed Apr 17, 2019

View Opinion No. 17-1739

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  REVERSED AND REMANDED FOR DISMISSAL.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The defendant, LB Goodjoint, appeals his conviction for possession of a firearm as a felon.  Goodjoint challenges the sufficiency of the evidence to support the determination he was previously convicted of a qualifying felony.  OPINION HOLDS: Because the record lacks substantial evidence to support the “felon” element of the crime of felon in possession of a firearm, we reverse Goodjoint’s conviction, judgment, and sentence and remand for dismissal. 

Case No. 17-1970:  Melissa Sadler, Individually and as Parent and Next Friend of S.S., A.S., Z.S., and I.S., Minor Children v. Iowa Department of Human Services (DHS); Charles M. Palmer, In His Capacity as Director of DHS; Stacy Deberg, Individually and in Her Capacity as Child Protective Worker; Lori Mulder, Individually and in Her Capacity as DHS Social Worker II

Filed Apr 17, 2019

View Opinion No. 17-1970

            Appeal from the Iowa District Court for Butler County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            Melissa Sadler, individually and as parent and next friend of four children, appeals the district court’s order granting the defendants’ motion to dismiss.  OPINION HOLDS: We affirm the district court’s dismissal for failure to state a claim.

Case No. 17-1983:  In re the Marriage of Lewis

Filed Apr 17, 2019

View Opinion No. 17-1983

            Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.  AFFIRMED ON APPEAL, AFFIRMED AS MODIFIED ON CROSS-APPEAL, AND REMANDED WITH INSTRUCTIONS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (15 pages)

            Holly Lewis appeals, and Eric Lewis cross-appeals, the modification of a dissolution-of-marriage decree.  Holly argues the court erred in modifying the physical-care provisions of the decree or, alternatively, she should have been afforded additional parenting time as to the children placed in the parties’ shared physical care.  Eric argues the court erred in placing the two younger children in the joint physical care of both parties rather than in his physical care and the court erred in its child-support calculation as to the joint-physical-care children.  OPINION HOLDS: We conclude Eric met his burden for modification.  We affirm the district court’s finding of the same, but modify the modification decree to place the two younger children in Eric’s physical care.  We also modify the district court’s summer visitation schedule, and affirm the remainder of the visitation schedule.  We reject Eric’s challenges to his support obligations.  We remand the matter to the district court for determination of future support obligations under the physical-care arrangement ordered herein.  Costs on appeal are assessed to Holly. 

Case No. 17-2006:  State of Iowa v. Daron Wilkinson

Filed Apr 17, 2019

View Opinion No. 17-2006

            Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J. (4 pages)

            Daron Wilkinson appeals his conviction and sentence for theft in the second degree.  He contends the district court improperly considered the Iowa Risk Revised assessment, violating his due process rights.  He also contends his trial counsel was ineffective in not raising the objection.  OPINION HOLDS: Applying the recent supreme court decisions in State v. Guise, 921 N.W.2d 26, 29 (Iowa 2018), and State v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018), we find because Wilkinson did not raise this issue in the district court, we cannot reach the due process claim on direct appeal.  We preserve the ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings. 

Case No. 18-0174:  State of Iowa v. Omar Montalvo Nunez

Filed Apr 17, 2019

View Opinion No. 18-0174

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

            Omar Montalvo Nunez appeals his conviction for willful injury causing serious injury.  OPINION HOLDS:  We find Nunez has not preserved error on his claim concerning the use of a key witness to translate during an interview with the victim.  We conclude there is substantial evidence in the record to support Nunez’s conviction for willful injury causing serious injury based on a finding he aided and abetted his brother while the brother was stabbing the victim.  We affirm Nunez’s conviction.

Case No. 18-0182:  Thomas Duane Morris v. State of Iowa

Filed Apr 17, 2019

View Opinion No. 18-0182

            Appeal from the Iowa District Court for Henry County, Mark Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (5 pages)

            Thomas Morris appeals the district court’s denial of his application for postconviction relief (PCR) alleging counsel was ineffective for failing to file a motion in arrest of judgment following his guilty plea to second-degree theft.  OPINION HOLDS: Because Morris pointed to no inadequacy in the plea proceeding and the record lacks support for Morris’s claim he expressed a wish to withdraw his guilty plea, we affirm the denial of PCR.

Case No. 18-0258:  In the Matter of the Estate of David L. Christoffersen, Deceased.

Filed Apr 17, 2019

View Opinion No. 18-0258

            Appeal from the Iowa District Court for Shelby County, Timothy O'Grady, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Karen Christoffersen appeals the probate court’s denial of her amendment to the report and inventory of the estate of her late husband, David.  David’s sister, Shirley, made a claim for repayment of loans to David.  Shirley contended Karen paid her own debts from the estate and amended the report and inventory to defeat Shirley’s claim.  The district court agreed—finding Karen engaged in self-dealing and refused to approve the amendment.  Karen appeals.  OPINION HOLDS: Because the probate court properly applied provisions of Iowa Probate Code chapter 633 (2017), we affirm the self-dealing determination.  We slightly modify the ruling rejecting the amended report and inventory to allow the correction of the genuine inaccuracies in the original report.  We affirm the ruling as modified and remand for further proceedings. 

Case No. 18-0407:  State of Iowa v. Jose Manuel Cruz Ordonez

Filed Apr 17, 2019

View Opinion No. 18-0407

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Opinion by Vaitheswaran, J.  (8 pages)

            Jose Manuel Cruz Ordonez appeals the district court’s denial of his motion to suppress evidence uncovered during a field sobriety test and the court’s subsequent finding of his guilt of operating a motor vehicle while intoxicated (first offense), raising constitutional claims of a violation of his right against self-incrimination and his freedom from unreasonable searches and seizures.  DISPOSITION HOLDS: We affirm the district court’s denial of Cruz Ordonez’s suppression motion and Cruz Ordonez’s conviction, judgment, and sentence for operating a motor vehicle while intoxicated (first offense).

Case No. 18-0442:  State of Iowa v. Jose Manuel Domingo Mendez

Filed Apr 17, 2019

View Opinion No. 18-0442

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Jose Domingo Mendez appeals his convictions for possession with intent to deliver methamphetamine with a firearm enhancement, failure to affix a drug tax stamp, criminal gang participation, and carrying a weapon.  OPINION HOLDS: We find substantial evidence supports the jury’s verdicts.  We affirm all four convictions.

Case No. 18-0565:  James Heal v. Brian Anderson

Filed Apr 17, 2019

View Opinion No. 18-0565

            Appeal from the Iowa District Court for Iowa County, Ian K. Thornhill, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (10 pages)

            James Heal appeals the entry of a civil money judgment, challenging the district court’s conclusion that he was grossly negligent in storing and caring for items under a gratuitous bailment belonging to a Brian Anderson.  Anderson requests an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s entry of judgment in part, reverse it in part, and remand the matter to the district court for entry of judgment against Heal and in favor of Anderson in the amount of $37,485.23, plus interest in accordance with law, and an order for Heal to return to Anderson the items he is not liable for converting.  Anderson’s request for appellate attorney fees is denied.  Costs on appeal are taxed equally between the parties.

Case No. 18-0574:  Craig Naber v. Jerald "Jerry" Naber

Filed Apr 17, 2019

View Opinion No. 18-0574

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

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

Case No. 18-0636:  Michael Roach v. State of Iowa

Filed Apr 17, 2019

View Opinion No. 18-0636

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

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

Case No. 18-0685:  State of Iowa v. Anthony Gomez

Filed Apr 17, 2019

View Opinion No. 18-0685

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

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

Case No. 18-0690:  State of Iowa v. Larry Gross

Filed Apr 17, 2019

View Opinion No. 18-0690

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

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

Case No. 18-0824:  Shelby Anthony Vogt v. Jack Ogden and Denice Bennett

Filed Apr 17, 2019

View Opinion No. 18-0824

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

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

Case No. 18-0976:  In the Interest of D.C., Minor Child

Filed Apr 17, 2019

View Opinion No. 18-0976

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

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

Case No. 18-1168:  State of Iowa v. Kenneth Wayne Turner

Filed Apr 17, 2019

View Opinion No. 18-1168

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

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

Case No. 18-1301:  State of Iowa v. James Richard Dawson Jr.

Filed Apr 17, 2019

View Opinion No. 18-1301

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

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

Case No. 18-1356:  In the Interest of S.W., Minor Child

Filed Apr 17, 2019

View Opinion No. 18-1356

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

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

Case No. 18-1381:  State of Iowa v. Randall Lee Brooks

Filed Apr 17, 2019

View Opinion No. 18-1381

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

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

Case No. 18-1401:  Jesse Joe Blair v. Trish Scott n/k/a Trish Weimar

Filed Apr 17, 2019

View Opinion No. 18-1401

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

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

Case No. 18-1403:  State of Iowa v. Amanda Caye Dreier

Filed Apr 17, 2019

View Opinion No. 18-1403

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

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

Case No. 18-1599:  State of Iowa v. Shannon Christopher Turner

Filed Apr 17, 2019

View Opinion No. 18-1599

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED. Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Vogel, C.J.  (4 pages)

            Shannon Turner pled guilty to operating while intoxicated and assault with intent to commit sexual abuse.  He appeals his sentence, arguing the district court abused its discretion and failed to consider all relevant factors and possible sentencing options when sentencing him.  OPINION HOLDS: Based on the record and the district court’s reasoning when sentencing Turner, we find the district court did not abuse its discretion.

Case No. 19-0128:  In the Interest of T.C., T.B., B.B., K.B., and C.B., Minor Children

Filed Apr 17, 2019

View Opinion No. 19-0128

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

            A mother and father separately appeal the termination of their parental rights to several children.  OPINION HOLDS: We affirm the termination of the parents’ rights to their children.

Case No. 19-0171:  In the Interest of E.D., Minor Child

Filed Apr 17, 2019

View Opinion No. 19-0171

            Appeal from the Iowa District Court for Benton County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (7 pages)

            A mother appeals from the order terminating her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows that the child could not be returned to the mother’s care at the time of the termination hearing, establishing the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(h) (2018).  Because the statutory time period has passed and there is no evidence the bond between the child and the mother is so great that terminating it would be detrimental to the child, termination is in the child’s best interests.  Accordingly, we affirm.

Case No. 19-0254:  In the Interest of S.I., Minor Child

Filed Apr 17, 2019

View Opinion No. 19-0254

            Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (5 pages)

            A mother appeals from an order terminating her parental rights to one child.  She contends the juvenile court abused its discretion in denying her motion to continue when the court continued the first of two days of hearing for inclement weather and the mother failed to appear on the second day.  OPINION HOLDS: We find the district court did not abuse its discretion.  There was no communication from the mother as to her whereabouts, and the best interests of the child demanded permanency.  The mother had not made a significant effort to address the substance abuse issues that led to the initial removal.  Under those circumstances, we find no abuse of discretion. 

Case No. 19-0258:  In the Interest of I.R., Minor Child

Filed Apr 17, 2019

View Opinion No. 19-0258

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, 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 their child.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 19-0274:  In the Interest of A.F., A.F., A.F., and S.F., Minor Children

Filed Apr 17, 2019

View Opinion No. 19-0274

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Tabor, J., takes no part.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: The mother failed to preserve error on her claims that the State failed to make reasonable efforts to have the children returned to her care and the juvenile court should have continued the termination hearing.  Because the evidence shows termination of the mother’s parental rights is in the children’s best interests, we affirm.

Case No. 19-0297:  In the Interest of M.D., K.T., G.A., E.A., and S.A., Minor Children

Filed Apr 17, 2019

View Opinion No. 19-0297

            Appeal from the Iowa District Court for Ida County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            The mother appeals the termination of her parental rights to her five children.  The mother does not challenge the statutory grounds for termination.  She focuses on her argument on a permissive factor of Iowa Code section 232.116(3) (2018), claiming the court need not terminate her parental rights because each of the five children is in the custody of their respective father.  OPINION HOLDS: These children have been involved with the juvenile court system for much of their lives.  Leaving the door open for additional uncertainty in their lives is not in their best interests.  We affirm the termination of the mother’s parental rights. 

Case No. 17-0885:  Paul Henry Cannon v. State of Iowa

Filed Apr 03, 2019

View Opinion No. 17-0885

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (6 pages)

            Paul Cannon appeals the denial of his application for postconviction relief (PCR).  He argues his PCR counsel was ineffective for failing to obtain an expert opinion on his competency and for failing to challenge the procedure used during the competency determination.  OPINION HOLDS: We find his PCR counsel did not commit structural error and the procedure during the competency determination complied with due process.  Therefore, we affirm.

Case No. 17-1445:  State of Iowa v. Mackinzie Standlee-Campbell

Filed Apr 03, 2019

View Opinion No. 17-1445

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

            Mackinzie Standlee-Campbell appeals her conviction for domestic abuse assault causing bodily injury.  She asserts the district court violated her constitutional right to present a defense when it excluded evidence of the victim’s prior bad acts and her conviction is not supported by sufficient evidence.  OPINION HOLDS: Standlee-Campbell did not preserve her argument about her right to present a defense for our review, and even if we were to consider the issue, she cannot show the probative value of the evidence substantially outweighs the danger of unfair prejudice.  Also, the evidence is sufficient for the jury to reject her self-defense claim and find she committed domestic abuse assault causing bodily injury.  Therefore, we affirm.

Case No. 17-1668:  State of Iowa v. Clay Thomas Paulson

Filed Apr 03, 2019

View Opinion No. 17-1668

            Appeal from the Iowa District Court for Boone County, Paul G. Crawford, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (10 pages)

            Clay Thomas Paulson appeals from a jury trial finding him guilty as charged of suborning perjury and solicitation to suborn perjury.  He raises claims of insufficiency of the evidence and improper admission of hearsay.  OPINION HOLDS: We conclude substantial evidence supported the elements of both crimes.  However, we conclude the woman’s statement as recounted by the police officer was offered to prove the truth of the matter asserted and, accordingly, was hearsay.  We conclude the State failed to prove the woman’s statement to the police officer concerning Paulson’s possession of a starred backpack was admissible under the forfeiture-by-wrongdoing exception to the hearsay rule.  Because the evidence was inadmissible, we reverse and remand for a new trial.

Case No. 17-1872:  State of Iowa v. Kurt Alan Olson

Filed Apr 03, 2019

View Opinion No. 17-1872

            Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Blane, S.J.  Opinion by Blane, S.J.  (15 pages)

            Defendant appeals from his convictions for two counts of indecent contact with a child and three counts of assault with intent to commit sexual abuse.  He contends the jury verdicts are not supported by sufficient evidence and the district court erred in not granting him a new trial based on his weight-of-the-evidence and evidentiary claims.  Finally, he contends his trial counsel was ineffective.  OPINION HOLDS:  We find Olson failed to preserve his sufficiency-of-the-evidence argument.  The district court did not abuse its discretion in denying his motion for new trial as the verdict was not against the weight-of-the-evidence.  The court did not abuse its discretion in any preserved evidentiary ruling.  And the ineffective-assistance-of-counsel claims are preserved for postconviction-relief proceedings. 

Case No. 17-1910:  State of Iowa v. Daniel Leroy Connerley

Filed Apr 03, 2019

View Opinion No. 17-1910

            Appeal from the Iowa District Court for Floyd County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (10 pages)

            Daniel Connerley appeals his convictions for third-degree theft and ongoing criminal conduct, arguing the court erred in modifying the jury verdict form to remove an offense greater than the offense charged by the State after the jury returned a verdict finding Connerley guilty of the greater charge.  OPINION HOLDS: Finding no error in the court’s modification of the verdict form, we affirm Connerley’s convictions.

Case No. 17-1914:  State of Iowa v. Maliek Todd-Harris

Filed Apr 03, 2019

View Opinion No. 17-1914

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J. (3 pages)

            Maliek Todd-Harris appeals his conviction for second-degree burglary.  OPINION HOLDS: The district court acted within its discretion in denying Todd-Harris’s motion for mistrial based on juror misconduct.  He failed to preserve his claim the trial court should be required to conduct an investigation into how much of the trial the juror had missed. 

Case No. 17-1963:  State of Iowa v. David Jay Nuno

Filed Apr 03, 2019

View Opinion No. 17-1963

            Appeal from the Iowa District Court for Mills County, Mark J. Eveloff, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (17 pages)

            David Nuno appeals his conviction and sentence for second-degree sexual abuse.  He argues his right to confront his witnesses was violated, his motion for new trial was incorrectly decided using the wrong standard, and his trial counsel was ineffective several reasons.  OPINION HOLDS: Nuno was not denied the right to confront witnesses, and the district court did not apply the incorrect standard in denying Nuno’s motion for new trial.  We preserve Nuno’s claims of ineffective assistance of counsel for possible postconviction-relief proceedings. 

Case No. 17-2020:  Brenda N. Papillon v. Bryon L. Jones

Filed Apr 03, 2019

View Opinion No. 17-2020

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Gamble, S.J., takes no part.  Opinion by Potterfield, P.J.  (5 pages)

            Bryon Jones challenges the district court’s award of punitive damages and attorney fees.  He argues the district court (1) violated his right to due process when it adopted the proposed findings of Papillon on remand and (2) erred when it ordered him to pay trial attorney and appellate attorney fees without having evidence of either party’s finances.  OPINION HOLDS: Jones’s complaint regarding his due process rights involves a previous order by the district court—not the final order before us now.  He has not established a due process violation regarding the final order.  Additionally, he provides no authority to support his claim the court is required to consider or make a determination as to either party’s need or ability to pay before ordering the payment of fees pursuant to Iowa Code section 808B.8 (2015).  We affirm.

Case No. 17-2079:  State of Iowa v. Michael Alan Fry

Filed Apr 03, 2019

View Opinion No. 17-2079

            Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Michael Fry appeals his judgment and sentence for possession of methamphetamine, third or subsequent offense, as a habitual felon.  He contends, “[T]he trial court erred by failing to consider [his] request for new counsel, violating his Sixth Amendment Right to counsel.”  OPINION HOLDS: The record is inadequate to resolve Fry’s claim that he was entitled to substitute counsel either based on a breakdown in the attorney-client relationship or because of a conflict of interest, as he alleges.  Accordingly, we affirm his judgment and sentence and preserve his claim for possible postconviction relief.

Case No. 18-0002:  State of Iowa v. Earl Booth-Harris

Filed Apr 03, 2019

View Opinion No. 18-0002

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

            Earl Booth-Harris appeals his conviction for murder in the first degree.  OPINION HOLDS: We find the district court properly denied Booth-Harris’s motion to suppress based on a claim of an impermissible suggestive identification procedure.  We preserve for a possible postconviction relief action defendant’s due process claim raised under the Iowa Constitution and his claim defense counsel should have requested a different eyewitness identification instruction.  We affirm Booth-Harris’s conviction for first-degree murder

Case No. 18-0042:  Tech Professional Centre Condominium Association v. Apex Holdings, L.L.C. and Jens Baker

Filed Apr 03, 2019

View Opinion No. 18-0042

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vaitheswaran, J.  (10 pages)

            The district court ruled in favor of a condominium association and ordered a condominium owner to return units it modified to their original condition.  The court declined to grant the association’s request for attorney fees.  The owner and the association appeal.  OPINION HOLDS: We affirm all aspects of the district court’s final order except the grant of injunctive relief.  We reverse that portion of the final order and remand for entry of judgment in favor of the Association for $5095.48 plus interest.   

Case No. 18-0082:  Jacolby Japriest Pendleton v. State of Iowa

Filed Apr 03, 2019

View Opinion No. 18-0082

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Jacolby Pendleton appeals the denial of his application for postconviction relief (1) challenging the specificity of the postconviction court’s findings of fact, (2) contending his mandatory minimum sentence constituted cruel and unusual punishment, and (3) arguing his attorneys were ineffective in several respects.  OPINION HOLDS: We conclude the postconviction court made fact findings on the issues raised.  Pendleton was an adult offender, so his mandatory minimum sentence did not constitute cruel and unusual punishment.  In terms of the defendant’s representation by counsel during various phases, we find the sentencing argument unpersuasive; none of Pendleton’s attorneys were ineffective in failing to raise the cruel-and-unusual-punishment claims.  We preserve the remaining ineffective-assistance-of-counsel claims for a possible second postconviction-relief action.  We affirm the denial of Pendleton’s postconviction-relief application.

Case No. 18-0140:  State of Iowa v. Bobbi Lee Barden

Filed Apr 03, 2019

View Opinion No. 18-0140

            Appeal from the Iowa District Court for Boone County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

            Bobbi Barden appeals her conviction for possession of methamphetamine, contending the district court erred in denying her motion to suppress evidence retrieved from her purse because she did not consent to the search.  OPINION HOLDS: On our de novo review of the record, we agree with the district court that Barden’s consent to the search of her purse was voluntary.  We affirm Barden’s judgment, conviction, and sentence for possession of methamphetamine, first offense.

Case No. 18-0249:  State of Iowa v. Dean Joseph Ott

Filed Apr 03, 2019

View Opinion No. 18-0249

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

Dean Ott appeals his conviction and sentence for second-degree theft, arguing it was an abuse of discretion for the district court to prohibit the admission of certain evidence and counsel was ineffective. OPINION HOLDS: We conclude the district court did not abuse its discretion in excluding the witness.  We affirm the district court’s exclusion of the proposed evidence of certain legal proceedings.  We find the record inadequate to address the claim of ineffective assistance of counsel and preserve it for postconviction relief.  We affirm Ott’s judgment and sentence for second-degree theft. 

Case No. 18-0397:  State of Iowa v. Cameron D. Singleton

Filed Apr 03, 2019

View Opinion No. 18-0397

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J. (7 pages)

            Cameron Singleton appeals from judgment and sentence imposed upon his convictions for first-degree burglary, stalking in violation of a protective order, and eluding.  He contends his trial counsel was ineffective in failing to challenge the habitual offender stipulation colloquy; the court violated his due process rights and abused its discretion when it considered risk-assessment information contained in the presentence investigation report; and the court erred in stating he may be assessed attorney fees on appeal.  OPINION HOLDS: Singleton’s claim of ineffective assistance of counsel fails for lack of prejudice.  He did not raise the due process challenge below and we do not address it here.  However, because the district court entered a restitution order without a finding of reasonable ability to pay, we reverse the part of the sentencing order regarding restitution and remand. 

Case No. 18-0450:  Perry Andrew Fischer v. State of Iowa

Filed Apr 03, 2019

View Opinion No. 18-0450

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

            Perry Fischer appeals the summary judgment ruling to dismiss his application for postconviction relief.  He argues summary judgment was inappropriate as there were genuine issues of material fact, and he asserts his claims are not time-barred, despite the sixteen-year period between conviction and the application.  In addition, Fischer raises ineffective-assistance claims against his trial counsel and postconviction counsel.  OPINION HOLDS: We conclude summary judgment was appropriate because Fischer’s claims are not within the three-year statute of limitations and no exception applies.  Additionally, we find Fischer’s ineffective-assistance claims against trial counsel are time-barred and he failed to prove postconviction counsel was ineffective.

Case No. 18-0495:  Steven Kuhle as Fraternal Order of Eagles #568 v. Iowa Civil Rights Commission and Patricia Kelly and Michael Fishnick

Filed Apr 03, 2019

View Opinion No. 18-0495

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED AND REMANDED WITH DIRECTIONS.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Considered on rehearing by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Doyle, P.J.  (6 pages)

            The appellant appeals the district court’s ruling affirming an adverse agency decision.  OPINION HOLDS: The appellant has failed to preserve error on a freedom-of-association claim that it never raised in the district court.  Although an at-will employment relationship existed, the Iowa Civil Rights Act prohibits unlawful discrimination against an employee based on the employee’s age.  Because there is substantial evidence in the record that appellant discriminated against employees because of their ages, we affirm the district court ruling.  We affirm the district court’s ruling that affirmed the agency’s award of attorney fees incurred by Kelly and Fishnick through September 13, 2016.  We remand for a hearing concerning an award to Kelly and Fishnick for reasonable attorney fees, including appellate attorney fees, incurred after September 13, 2016.

Case No. 18-0573:  In re the Marriage of Whalen

Filed Apr 03, 2019

View Opinion No. 18-0573

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  ORDER VACATED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (9 pages)

            Morgan Whalen appeals the district court ruling granting Douglas Whalen’s motion to reconsider provisions of the parties’ dissolution decree.  OPINION HOLDS: Because the court’s order did not constitute a proper nunc pro tunc order, the district court lacked jurisdiction to grant Douglas’s untimely posttrial motion, and we reverse and vacate the district court’s

Case No. 18-0659:  State of Iowa v. Rodney D. Beck

Filed Apr 03, 2019

View Opinion No. 18-0659

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge, and Mark R. Fowler, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (5 pages)

            Rodney Beck appeals from his convictions for driving while barred and driving while suspended, contending his trial counsel was ineffective and the court abused its sentencing discretion.  OPINION HOLDS: Beck has failed to prove counsel was ineffective.  We are able to discern the court’s reasons for the sentence imposed and, thus, find no abuse of discretion.

Case No. 18-0712:  Mike Marion Niday v. Roehl Transport, Inc.

Filed Apr 03, 2019

View Opinion No. 18-0712

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., and Tabor and McDonald, JJ, but Decided by Potterfield, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (18 pages)

            Michael Niday challenges the district court’s affirmance of the workers’ compensation commissioner’s denial of his petition for benefits on the basis the commission lacked jurisdiction.  OPINION HOLDS: Because we find the commissioner erroneously concluded the last act necessary for formation of a contract was fulfillment of conditions precedent within the contract, we reverse.

Case No. 18-0755:  State of Iowa v. Derrick Deonte Moore

Filed Apr 03, 2019

View Opinion No. 18-0755

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

            Derrick Moore appeals his convictions for burglary in the first degree, harassment in the third degree, domestic abuse assault causing bodily injury, and possession of marijuana.  He contends the State failed to offer sufficient evidence to support his convictions and he was prejudiced by trial counsel’s subpar performance.  OPINION HOLDS: Finding the State offered substantial evidence of burglary and drug possession, we affirm those convictions.  Finding Moore failed to preserve error on his challenges to the remaining counts, we decline to disturb the jury verdicts.  Finally, because Moore needs to further develop the record on his allegations of ineffective assistance of counsel, we preserve those claims for possible postconviction-relief proceedings.

Case No. 18-0832:  State of Iowa v. Matthew Alan Reynolds

Filed Apr 03, 2019

View Opinion No. 18-0832

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

            The district court ordered Matthew Reynolds to serve three concurrent sentences for a total term of incarceration not to exceed fifteen years.  On appeal, Reynolds maintains the court abused its discretion by imposing a term of incarceration rather than granting his request for probation.  OPINION HOLDS: Although the district court did not accept Reynolds’s claims that he could be successful in achieving sobriety if granted probation, Reynolds has not established that the sentence imposed by the court was based on grounds or for reasons clearly untenable, nor was its choice clearly unreasonable under the circumstances.  Thus, we affirm the sentence imposed by the district court.

Case No. 18-0848:  State of Iowa v. Erick Byicaza

Filed Apr 03, 2019

View Opinion No. 18-0848

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Carr, S.J.  Opinion by Doyle, P.J.  (5 pages)

            Eric Byizaca appeals the judgment and sentence entered after he pled guilty to one count of dependent adult abuse.  OPINION HOLDS: Because the record shows a factual basis and Byizaca does not have standing to challenge the offense as unconstitutionally vague, he has failed to prove his trial counsel was ineffective for allowing him to enter his plea. 

Case No. 18-0942:  Deloris Grace Young, by and through her attorney-in-fact Robert A. Young and Joan E. Ambrose v. Rally Appraisal, L.L.C. and Fuhrmeister Appraisal, L.L.C.

Filed Apr 03, 2019

View Opinion No. 18-0942

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (10 pages)

            Deloris Grace Young, beneficiary of her son William’s estate, challenges the district court’s grant of summary judgment in favor of two appraisal companies on her negligent-misrepresentation claims.  OPINION HOLDS: Because we agree with the district court’s conclusion there was no genuine issue of material fact and Grace failed, as a matter of law, to prove justifiable reliance, we affirm. 

Case No. 18-1031:  State of Iowa v. Robert Allen Brown

Filed Apr 03, 2019

View Opinion No. 18-1031

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor and Joel W. Barrows, Judges.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Tabor, J., takes no part.  Opinion by Vogel, C.J.  (4 pages)

            Robert Brown pled guilty to operating while intoxicated, third offense, in violation of Iowa Code section 321J.2(2)(c) (2017).  He now appeals, asserting his counsel was ineffective for allowing the district court to accept his guilty plea without a factual basis.  OPINION HOLDS: We affirm his conviction and conclude counsel was not ineffective because there was a factual basis for Brown’s guilty plea.

Case No. 18-1303:  State of Iowa v. Johnny Tibnol

Filed Apr 03, 2019

View Opinion No. 18-1303

            Appeal from the Iowa District Court for Linn County, Robert E. Sosalla and Lars G. Anderson, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J. (3 pages)

            Johnny Tibnol appeals his conviction for incest, claiming the district court abused its discretion by sentencing him to prison.  OPINION HOLDS: We find the district court did not abuse its discretion and affirm the judgment and sentence.

Case No. 18-1391:  State of Iowa v. Larry Dale Edgren

Filed Apr 03, 2019

View Opinion No. 18-1391

            Appeal from the Iowa District Court for Marion County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Larry Edgren entered an Alford plea to the charge of assault with intent to commit sexual abuse.  On appeal, he maintains trial counsel provided ineffective assistance.  OPINION HOLDS: Because the record is inadequate for us to decide Edgren’s claims of ineffective assistance, we preserve them for postconviction-relief proceedings. 

Case No. 18-1513:  Modern Piping, Inc. v. Board of Regents, State of Iowa on Behalf of the University of Iowa

Filed Apr 03, 2019

View Opinion No. 18-1513

            Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (4 pages)

            The University of Iowa, Board of Regents, and State of Iowa appeal from the district court order granting Modern Piping, Inc.’s motion to confirm an arbitration award.  OPINION HOLDS: The use of the word “shall” in the arbitration clause regarding disputes submitted to the design professional indicates arbitration is mandatory.  Because Modern Piping directed the disputes at issue to the design professional, we affirm the order confirming the arbitration award. 

Case No. 18-2078:  In the Interest of H.E., Minor Child

Filed Apr 03, 2019

View Opinion No. 18-2078

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  (9 pages)

            The mother appeals the termination of her parental rights, claiming the State did not prove by clear and convincing evidence the statutory requirements for termination.  OPINION HOLDS: The State proved the statutory requirements for termination under Iowa Code section 232.116(1)(h) )2018), termination is in the best interest of the child, and that the bond with the child was not so strong as to defeat termination.  We affirm.

Case No. 18-2119:  In the Interest of D.F. and M.S., Minor Children

Filed Apr 03, 2019

View Opinion No. 18-2119

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

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find clear and convincing evidence supports the termination and termination is in the children’s best interests.

Case No. 18-2180:  In the Interest of R.B., Minor Child

Filed Apr 03, 2019

View Opinion No. 18-2180

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vogel, C.J.  (10 pages)

            The mother and father both appeal the termination of their parental rights to their child.  Both parents raise various arguments, including the State failed to prove by clear and convincing evidence that grounds for termination exist, the district court should have granted a six-month extension, termination was not in the best interests of the child, and termination was precluded by permissive factors.  Alternatively, the parents claim the district court should have established a guardianship.  OPINION HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination exist, additional time would not extinguish the need for removal, termination is in the best interests of the child, and nothing in the record precludes termination.  Furthermore, we find the district court appropriately rejected a guardianship.

Case No. 18-2227:  In the Interest of A.M., Minor Child

Filed Apr 03, 2019

View Opinion No. 18-2227

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

            A mother appeals the juvenile court’s termination of her parental rights under Iowa Code section 232.116(1)(f) and (g) (2018), arguing termination was not warranted because the child could have been returned to her care.  OPINION HOLDS: Because we conclude the child could not be safely returned home at the time of the termination hearing, we affirm.

Case No. 18-2245:  In the Interest of L.M., Minor Child

Filed Apr 03, 2019

View Opinion No. 18-2245

            Appeal from the Iowa District Court for Clay County, Charles Borth, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            A father appeals the termination of his parental rights, contending the State failed to make reasonable efforts to reunify him with the child, grounds for termination do not exist, and termination is not in the child’s best interests.  OPINION HOLDS: On our de novo review, we discern no reason to disagree with the juvenile court’s findings and conclusions.  We affirm.

Case No. 19-0003:  In the Interest of D.S., Minor Child

Filed Apr 03, 2019

View Opinion No. 19-0003

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (7 pages)

            A father appeals the termination of his parental rights to a one-year-old child.  OPINION HOLDS: The father’s sole contention is that it was not in the child’s best interests to terminate his parental rights.  The father’s lack of progress in addressing and controlling his anger leads us to conclude it is in the child’s best interests to terminate his parental rights and seek a permanent home for the child.  We affirm. 

Case No. 19-0090:  In the Interest of K.R. and K.R., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0090

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The mother appeals the termination of her parental rights to her children, born in April 2017.  The juvenile court terminated the mother’s parental rights pursuant to Iowa Code section 232.116(1)(e) and (h) (2018).  The mother maintains the State did not prove the statutory grounds for termination by clear and convincing evidence, termination is not in the children’s best interests, and a permissive factor weighs against termination.  Alternatively, she requests a six-month extension to continue working toward reunification with her children.  OPINION HOLDS:  Because we find the juvenile court should have granted the mother’s request for a six-month extension to continue working toward reunification, we do not address any of the mother’s other claims.  We reverse the termination of the mother’s parental rights and remand for implementation of a six-month extension. 

Case No. 19-0115:  In the Interest of E.A. and A.A., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0115

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We find termination of the father’s parental rights is in the children’s best interests.  Also, the juvenile court properly determined the exception to termination based on the closeness of the parent-child relationship should not be applied.  We affirm the juvenile court’s decision.

Case No. 19-0117:  In the Interest of A.T. and Q.T., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0117

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Danilson, S.J.  Opinion by Bower, J.  (5 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS:  The mother concedes the statutory grounds for termination of parental rights have been met but claims termination is not in the best interests of the children.  We conclude it is in the children’s best interests to terminate the mother’s parental rights.  We affirm the decision of the juvenile court.

Case No. 19-0158:  In the Interest of A.M., D.M., Q.H., H.H., and D.H., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0158

            Appeal from the Iowa District Court for Fremont County, Craig M. Dreismeier, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (10 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We find clear and convincing evidence to support termination of the mother’s parental rights pursuant to Iowa Code section 232.116(1)(f) and (h) (2018).  The children cannot be returned to the mother at the present time due to unresolved substance-abuse and domestic-violence issues and the mother’s inability to provide adequate supervision to ensure the children’s safety.  Termination of the mother’s rights is in the children’s best interests.     

Case No. 19-0165:  In the Interest of L.M., D.M., and M.M., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0165

            Appeal from the Iowa District Court for Lee (North) County, Ty Rogers, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (12 pages)

            A mother appeals the termination of her parental rights to two children, and a father appeals the termination of his parental rights to three children.  They also contend the State did not timely file its response brief.  OPINION HOLDS: We agree the State did not timely file its response brief.  We further find the State proved the statutory grounds for termination, that termination was in the children’s best interests, and termination would not be so detrimental due to the closeness of the parent-child relationship that termination should be avoided.  We also find the State made reasonable efforts toward reunification.  We affirm. 

Case No. 19-0170:  In the Interest of A.P., Minor Child

Filed Apr 03, 2019

View Opinion No. 19-0170

            Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Doyle, P.J.  Dissent by Danilson, S.J.  (8 pages)

A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: Clear and convincing evidence establishes the grounds for terminating both the mother’s and the father’s parental rights because the child could not be returned safely to either parent’s care.  Termination is in the child’s best interests and none of the exceptions to the termination statute apply.  Accordingly, we affirm the termination of both the mother’s and the father’s parental rights.  DISSENT ASSERTS: I respectfully dissent.  I believe the evidence falls short of clear and convincing evidence that the child could not be returned home to the parents.  Initially, the parents struggled to attend to the child’s special needs but they had progressed to four overnights a week without any significant incident prior to the termination hearing.  I would reverse.  

Case No. 19-0182:  In the Interest of A.K. and P.K., Minor Children

Filed Apr 03, 2019

View Opinion No. 19-0182

            Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.  Opinion by Mullins, J.  (11 pages)

            A father appeals the termination of his parental rights.  He challenges the sufficiency of the evidence supporting the grounds for termination, asserts termination is not in the children’s best interest, and requests the application of a statutory exception to termination.  The father also argues the State failed to make reasonable efforts to reunify him with the children.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 19-0265:  In the Interest of G.B., Minor Child

Filed Apr 03, 2019

View Opinion No. 19-0265

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (5 pages)

            A father appeals the termination of his parental rights in his child.  OPINION HOLDS: The juvenile court did not err in denying the father’s request for an additional six months to work toward reunification.  Termination is in the child’s best interest, and the parent-child bond is not so strong as to preclude termination.

Case No. 17-0753:  State of Iowa v. Devaris Marquis Perry

Filed Mar 20, 2019

View Opinion No. 17-0753

            Appeal from the Iowa District Court for Polk County, Bradley M. McCall, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (12 pages)

            Devaris Perry appeals from his convictions for attempted murder, intimidation with a dangerous weapon with intent, and reckless use of a firearm resulting in property damage.  With the assistance of counsel, Perry argues the district court abused its discretion in failing to exclude a State witness for whom there was inadequate notice, there was insufficient evidence to support his conviction for attempted murder, the weight of the evidence is contrary to each of the three guilty verdicts, and trial counsel provided ineffective assistance by failing to file a motion to suppress Perry’s involuntary confession.  Additionally, in a supplemental pro se brief, Perry reiterates some of the arguments made by counsel and also maintains there was no corroboration of accomplice testimony and his trial counsel was ineffective when he inadequately impeached a witness for the State.  OPINION HOLDS:  Substantial evidence supports Perry’s convictions—even if Stogner was an accomplice.  Additionally, we cannot say the district court abused its discretion when it denied Perry’s motion to exclude Stogner as a witness or when it denied Perry’s motion for new trial based on the weight of the evidence.  Thus, we affirm Perry’s convictions.  We preserve for possible postconviction relief his claims of ineffective assistance.  

Case No. 17-1331:  State of Iowa v. Seth Alan Torbensen

Filed Mar 20, 2019

View Opinion No. 17-1331

            Appeal from the Iowa District Court for Poweshiek County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (2 pages)

            Seth Torbensen appeals from the sentence imposed upon his plea of guilty, contending the district court abused its discretion in considering improper factors.  OPINION HOLDS: Torbensen made no objection to the presentence investigation report and cannot now complain the court considered matters therein.  We affirm.   

Case No. 17-1526:  State of Iowa v. Cedric R. Whitmire

Filed Mar 20, 2019

View Opinion No. 17-1526

            Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (14 pages)

            Cedric Whitmire appeals his convictions for sexual abuse in the third degree, pimping, willful injury causing bodily injury, domestic abuse assault by strangulation causing bodily injury, and possession of marijuana.  OPINION HOLDS: Upon our review, we affirm.

Case No. 17-1544:  CEI Equipment Company v. Donald Gaddis and Karen Gaddis

Filed Mar 20, 2019

View Opinion No. 17-1544

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Potterfield, P.J., and Tabor and Mullins, JJ.  Opinion by Tabor, J.  (12 pages)

            The plaintiff in a third-party action for indemnity appeals the grant of summary judgment in favor of the third-party defendants, arguing the district court erred in finding their claim was time-barred under the stock purchase agreement.  The third-party defendants cross-appeal the denial of their application for attorney fees.  OPINION HOLDS: The unambiguous language of the contract evidences the intent of the parties that the Gaddises would indemnify CEI for claims from the accrual of the products liability cause of action until the running of the applicable statute of limitations.  Therefore, the district court erred in granting summary judgment to the Gaddises.  We reverse and remand for entry of new orders denying the Gaddises’ motion for summary judgment and granting CEIs as well as any further necessary proceedings.  We affirm the denial of the Gaddises’ request for attorney fees. 

Case No. 17-1820:  State of Iowa v. Benjamin DeJesus-Cruz

Filed Mar 20, 2019

View Opinion No. 17-1820

            Appeal from the Iowa District Court for Sioux County, Patrick H. Tott and Julie Schumacher, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Mullins, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Benjamin DeJesus-Cruz appeals his convictions for manufacture, delivery, or possession of methamphetamine with intent to deliver and operating while intoxicated.  OPINION HOLDS: Counsel may have breached an essential duty in failing to make a separate argument concerning the impoundment and search of his vehicle under the state constitution’s prohibition against unreasonable searches and seizures.  No Iowa cases had foreclosed the argument counsel failed to make, and case law from other jurisdictions supported the position.  We preserve this claim for postconviction relief to allow full development of the record regarding counsel’s decision-making and any prejudice to DeJesus-Cruz. 

Case No. 17-1908:  Jean Beloved v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 17-1908

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Gamble, S.J., takes no part.  Opinion by Mahan, S.J.  (15 pages)

            Jean Beloved appeals the dismissal of his application for postconviction relief.  OPINION HOLDS: Because Beloved cannot establish prejudice from any of the alleged breaches in trial counsel’s conduct, we affirm.

Case No. 17-1909:  State of Iowa v. Lori Dee Mathes

Filed Mar 20, 2019

View Opinion No. 17-1909

            Appeal from the Iowa District Court for Monona County, Duane E. Hoffmeyer, Judge.  APPEAL DISMISSED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  (4 pages)

            Lori Mathes appeals an order dismissing her criminal charges but requiring her to reimburse the State for her court-appointed attorney fees.  OPINION HOLDS: Because Mathes does not have the right of appeal from an order dismissing the criminal charge against her and she does not claim the district court acted beyond its authority, we dismiss her appeal.

Case No. 18-0096:  State of Iowa v. Chaka Khan Fielder

Filed Mar 20, 2019

View Opinion No. 18-0096

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell and Robert B. Hanson, Judges.  REVERSED AND REMANDED.  Heard by Tabor, P.J., Bower, J., and Mahan, S.J.  Per Curiam Opinion.  (33 pages)

            A defendant appeals her convictions for theft by deception and tampering with a witness.  She raises several contentions.  OPINION HOLDS: The verdicts were supported by sufficient evidence.  But the district court abused its discretion in admitting an irrelevant employee handbook that contained a broad and misleading definition of theft.  We reverse the judgment and remand for a new trial without the irrelevant evidence.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: The State did not show substantial evidence to support the amount stolen was sufficient for first-degree theft, only second-degree theft.  I would remand for retrial only on second-degree theft by deception. 

Case No. 18-0123:  State of Iowa v. Quayshan Lamontez Moore

Filed Mar 20, 2019

View Opinion No. 18-0123

            Appeal from the Iowa District Court for Scott County, John D. Telleen and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            Quayshan Moore appeals following a jury trial that resulted in convictions for possession of crack cocaine with intent to deliver, failure to affix a drug tax stamp, possession of a firearm by a domestic violence offender, carrying weapons, interference with official acts, and assault causing bodily injury.  Moore challenges the sentences imposed and claims trial counsel was ineffective in stipulating that he was a prohibited person and in failing to challenge the sufficiency of the evidence of his intent to deliver cocaine.  OPINION HOLDS: The court stated adequate reasons for imposing consecutive sentences.  The record is not sufficient to address his ineffectiveness claim as to the stipulation.  Because there is substantial evidence from which the jury could find an intent to deliver, Moore cannot show he was prejudiced by counsel’s failure to challenge evidence of intent.

Case No. 18-0126:  Mary DeHaai v. City of Monroe and Parties in Possession

Filed Mar 20, 2019

View Opinion No. 18-0126

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Mary DeHaai seeks reversal of the district court decision dismissing her quiet-title claim against the City of Monroe and denial of her motion for leave to amend.  OPINION HOLDS: We affirm the district court’s decision.

Case No. 18-0173:  Tim Kruse and Russell Bries d/b/a Kruse "N" Bries Construction v. Don Krumwiede and Molly Krumwiede

Filed Mar 20, 2019

View Opinion No. 18-0173

            Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (10 pages)

            The plaintiffs, Tim Kruse and Russell Bries, who do business as Kruse “N” Bries Contruction, were hired by Don and Molly Krumwiede to build and finish the Krumwiede’s new home.  The plaintiffs filed suit against the Krumwiedes for breach of contract and promissory estoppel or unjust enrichment, maintaining they performed construction services pursuant to written and verbal contracts and the Krumwiedes failed to compensate them fully.  The district court denied the plaintiffs’ claim, finding they failed to prove their case.  On appeal, the plaintiffs claim the district court “was incorrect in the conclusions of law necessary for plaintiffs to establish their cause of action.”  OPINION HOLDS: Because Kruse and Bries did not meet their burden to prove the Krumwiedes breached the contract, and because a claim of breach of implied contract cannot coexist with a claimed breach of express contract on the same subject matter, we affirm the district court’s denial of the plaintiffs’ suit.

Case No. 18-0186:  State of Iowa v. Cheryl Wanchanic

Filed Mar 20, 2019

View Opinion No. 18-0186

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED SENTENCING ORDER.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (6 pages)

            Cheryl Wanchanic appeals his conviction, following a jury trial, of first-degree robbery and the sentence imposed.  He contends his trial counsel was ineffective in failing to move for a mistrial.  He further challenges the district court’s order assessing appellate attorney fees against him unless he filed a request for a hearing on his reasonable ability to pay.  OPINION HOLDS: We affirm Wanchanic’s conviction but preserve his claim of ineffective assistance of counsel for possible postconviction-relief proceedings.  We affirm his sentence in part, but vacate the portion of the sentencing order requiring Wanchanic to affirmatively request a reasonable-ability-to-pay hearing.  We remand for the entry of a corrected sentencing order.

Case No. 18-0223:  Javier Benitez Pizarro v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-0223

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

            Javier Benitez Pizarro appeals the district court’s denial of his application for postconviction relief (PCR).  In the underlying case, Benitez Pizarro entered a guilty plea to possession of a controlled substance with intent to deliver.  Here, as he did in front of the PCR court, Benitez Pizarro maintains his trial counsel provided ineffective assistance by failing to (1) effectively plea bargain, (2) inform him of the immigration consequences associated with his plea deal, (3) adequately advocate on Benitez Pizarro’s behalf at sentencing, and (4) prepare Benitez Pizarro for his right of allocution at sentencing.  In the alternative, if we do not find he met his burden of establishing Strickland prejudice, Benitez Pizarro asks that we adopt a new standard for prejudice under the Iowa Constitution and consider his claims under that standard.  OPINION HOLDS: Because Benitez Pizarro has not met his burden to establish that trial counsel breached any essential duties in their representation of him, he cannot establish his claims of ineffective assistance and his new proposed new standard of prejudice is inapposite.  We affirm the denial of his application for PCR.    

Case No. 18-0235:  State of Iowa v. Prince Mellish

Filed Mar 20, 2019

View Opinion No. 18-0235

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (7 pages)

            Prince Mellish appeals his conviction and sentence for theft in the third degree.  He argues his counsel was ineffective for allowing him to sign a plea agreement that incorrectly states the law and for failing to correctly explain how his guilty plea would affect his immigration status.  OPINION HOLDS: We find the plea agreement correctly states he has an obligation to understand his immigration status and no prejudice resulted from his counsel’s claimed failure to investigate the divisibility of his theft charge.  Therefore, we affirm.         

Case No. 18-0337:  In re the Marriage of Friest

Filed Mar 20, 2019

View Opinion No. 18-0337

            Appeal from the Iowa District Court for Hardin County, Timothy J. Finn, Judge.  AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Decided by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (22 pages)

            Colette Friest appeals and Brent Friest cross-appeals various provisions of the district court’s decree dissolving their twenty-one-year marriage.  OPINION HOLDS: We agree with the district court that “[t]his is an extremely complicated case.”  We find the district court’s decree should be affirmed as modified in various respects as set out in this opinion, resulting in an increase of the equalization payment to Collette.  We further find Brent’s personal farm income for purposes of calculating his child-support obligation should be increased, and we remand the issue back to the district court to recalculate Brent’s child-support obligation consistent with this opinion.  The district court shall order a schedule of payments for the increased equalization payment that is fair and equitable to the parties.

Case No. 18-0356:  State of Iowa v. Asa South

Filed Mar 20, 2019

View Opinion No. 18-0356

            Appeal from the Iowa District Court for Marion County, Martha L. Mertz, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (5 pages)

            Asa South appeals the judgment and sentence entered after a jury found him guilty of third-degree sexual abuse.  OPINION HOLDS: The trial court acted within its discretion in denying evidence concerning an allegedly false claim of sexual abuse made by the complaining witness ten years earlier because South failed to show by a preponderance of the evidence that the claim was false.  His trial counsel was not ineffective in failing to object to the model jury instruction concerning his out-of-court statements.

Case No. 18-0362:  In re the Marriage of Moeller

Filed Mar 20, 2019

View Opinion No. 18-0362

            Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (10 pages)

            Tamra Moeller appeals the economic provisions in the parties’ dissolution decree.  OPINION HOLDS: We find the parties’ premarital agreement is not enforceable because Galyn Moeller did not provide accurate information on his financial disclosure form.  The district court made alternative findings concerning the division of the parties’ property if the premarital agreement was found to be unenforceable, and we find this division is equitable.  We also affirm the court’s decision not to award spousal support to Tamra and to order Galyn to pay part of her trial attorney fees.  We do not award any appellate attorney fees.  We affirm the decision of the district court, although we modify it to find the parties’ premarital agreement is not enforceable.

Case No. 18-0453:  Marquis Brumfield v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-0453

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Marquis Brumfield appeals the denial of his application for postconviction relief arguing ineffective assistance of counsel.  OPINION HOLDS: We affirm the postconviction court’s denial of Brumfield’s ineffective-assistance-of-counsel claim and the denial of his postconviction-relief application.

Case No. 18-0457:  State of Iowa v. Lawrence Eugene Walker

Filed Mar 20, 2019

View Opinion No. 18-0457

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J. (15 pages)

           

            Lawrence Walker appeals from his convictions for sexual abuse in the second degree and lascivious acts with a child.  He maintains the district court abused its discretion when it excluded evidence under the rape-shield law.  Additionally, he maintains the court erred in allowing the doctor to testify to hearsay that did not fall within the exception for statements for medical diagnosis and that trial counsel provided ineffective assistance by failing to object when a nurse testified to similar improper hearsay testimony.  OPINION HOLDS: The district court did not abuse its discretion in excluding evidence based on the rape-shield law.  Additionally, the court did not err in admitting Dr. Harre’s testimony about E.W.’s statements pursuant to a hearsay exception.  We affirm Walker’s convictions.  We preserve his claim of ineffective assistance for possible postconviction relief.

Case No. 18-0490:  Russell L. Newhall v. Marcia Elaine Newhall Roll

Filed Mar 20, 2019

View Opinion No. 18-0490

            Appeal from the Iowa District Court for Hardin County, Gregg R. Rosenbladt, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Marcia Roll appeals and Russell Newhall cross-appeals the district court’s taxing half Newhall’s trial and appellate attorney fees against Roll on remand.  OPINION HOLDS: We find the court erred in taxing plaintiff’s appellate attorney fees as costs and made no finding as to the reasonableness of Newhall’s trial attorney fees.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-0526:  State of Iowa v. Gary Wayne Elliott

Filed Mar 20, 2019

View Opinion No. 18-0526

            Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (10 pages)

            Gary Elliott appeals following convictions for four counts of second-degree sexual abuse, contending the district court erred when it rejected Elliott’s proposed evidence that the minor victim had been sexually abused before.  Alternatively, he argues that his counsel was ineffective for failing to argue the evidence was “constitutionally required” under Iowa Rule of Evidence 5.412 and asks this court to apply a different ineffective-assistance-of-counsel test than contained in existing law.  Elliott also asserts trial counsel should have objected to alleged prosecutorial misconduct during the prosecutor’s rebuttal closing argument.  OPINION HOLDS: Elliott’s new arguments of relevancy and the constitutional claims that were not presented to the district court are not properly preserved for review.  The trial court did not abuse its discretion in excluding the evidence of prior sexual abuse under rule 5.412.  We preserve Elliott’s ineffective-assistance-of-counsel claims for possible postconviction-relief proceedings.

Case No. 18-0560:  State of Iowa v. Bryce Albert Bishop

Filed Mar 20, 2019

View Opinion No. 18-0560

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (4 pages)

            Bryce Bishop appeals the judgment and sentence entered after a jury found him guilty of child endangerment resulting in bodily injury.  OPINION HOLDS: The trial court properly applied the weight-of-the-evidence standard in ruling on Bishop’s motion for new trial, and his trial counsel was not ineffective in failing to object to the jury instruction concerning his out-of-court statements.

Case No. 18-0616:  State of Iowa v. Keith William Davis, Jr.

Filed Mar 20, 2019

View Opinion No. 18-0616

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (10 pages)

            Keith Davis Jr. appeals his conviction of one count of sexual abuse in the third degree, following a jury trial.  On appeal, he contends his trial counsel was ineffective in failing to: (1) move for a dismissal on speedy-trial-violation grounds and (2) request jury instructions regarding contradictory statements by the complaining witness.  OPINION HOLDS: We find no violation of Davis’s right to a speedy trial and Davis was not prejudiced by counsel’s failure to request a specific instruction on inconsistent statements.  We therefore deny both of Davis’s claims of ineffective assistance of counsel and affirm his conviction.

Case No. 18-0624:  Corey Allen Trott v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-0624

            Appeal from the Iowa District Court for Calhoun County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Corey Trott appeals the denial of his application for postconviction relief (PCR).  He raises multiple ineffective-assistance-of-counsel claims against his trial counsel, appellate counsel, and PCR counsel.  In addition, Trott’s pro se brief raises various other issues.  OPINION HOLDS: We affirm the district court’s denial of PCR and preserve some of Trott’s ineffective-assistance claims for further postconviction proceedings.

Case No. 18-0631:  In re the Marriage of Dekeyser and Pergiel

Filed Mar 20, 2019

View Opinion No. 18-0631

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (9 pages)

            Sherry Dianne Dekeyser appeals part of the property division and award of spousal support and attorney fees in the parties’ dissolution decree.  Andrew Pergiel cross-appeals on the allocation of a retirement account.  OPINION HOLDS: We affirm the district court’s decree.

Case No. 18-0693:  Patrick Miller Webb, Jr. v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-0693

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

Patrick Miller Webb Jr. appeals the denial of his application for postconviction relief, arguing ineffective assistance of plea counsel.  OPINION HOLDS: On our de novo review, we conclude counsel was not ineffective in handling the suppression issue.  We affirm the district court’s denial of Webb’s postconviction-relief application. 

Case No. 18-0694:  Michael Wayne Lindgren v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-0694

            Appeal from the Iowa District Court for Plymouth County, Steven J. Andreasen, Judge.  APPEAL DISMISSED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (3 pages)

            Michael Lindgren appeals, asserting he had a liberty interest in being placed on work release, rather than in prison, and was thus entitled to a pre-transfer hearing.  OPINION HOLDS: Lindgren has since discharged his underlying sentence; his appeal is moot.

Case No. 18-0725:  State of Iowa v. Ramona Brandt

Filed Mar 20, 2019

View Opinion No. 18-0725

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Vaitheswaran, J. (4 pages)

            Ramona Brandt appeals following her entry of an Alford plea in relation to a second-degree theft charge, arguing ineffective assistance of counsel.  OPINION HOLDS: We affirm Brandt’s plea and her conviction, judgment, and sentence for second-degree theft. 

Case No. 18-0726:  Amanda Jo Phillips-Hewitt v. Christopher Ryan Brekke

Filed Mar 20, 2019

View Opinion No. 18-0726

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

            Amanda Phillips-Hewitt appeals the district court’s denial and dismissal of her application for order to show cause against Christopher Brekke for his failure to keep current with his child-support obligations.  Amanda also challenges the court’s denial of her request for trial attorney fees, and she requests appellate attorney fees.  OPINION HOLDS: We affirm the trial court’s dismissal of the contempt action and denial of the request for attorney fees.  We decline to award appellate attorney fees.  Costs on appeal are assessed to Amanda.

Case No. 18-0815:  State of Iowa v. Ali Abdelkarim Ali

Filed Mar 20, 2019

View Opinion No. 18-0815

            Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J. (2 pages)

            Ali Abdelkarim Ali pled guilty to robbery in the second degree and appeals the sentence imposed, contending the district court erred in determining it did not have the authority to suspend the minimum fine.  OPINION HOLDS: Iowa Code section 907.3 (2017) withholds the authority to suspend a sentence for a forcible felony.

Case No. 18-0839:  State of Iowa v. Erin Macke

Filed Mar 20, 2019

View Opinion No. 18-0839

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

            Erin Macke appeals the judgement and sentence entered following her plea to four counts of child endangerment.  OPINION HOLDS: Because the record is insufficient to determine Macke’s ineffective-assistance-of-counsel claim on the merits, we affirm her convictions and preserve the issue of ineffective assistance of counsel for postconviction-relief proceedings.  We decline to adopt the plain-error doctrine. 

Case No. 18-0925:  Great Western Bank v. Clement

Filed Mar 20, 2019

View Opinion No. 18-0925

            Appeal from the Iowa District Court for Howard County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Doyle, J.  (9 pages)

            Sue Ann Dougan, the assignee of a debtor’s statutory right of redemption, appeals following the dismissal of her petition in district court seeking declaration of her assignment’s validity, as well as calculation of the interest due to redeem the debtor’s foreclosed property.  Dougan challenges the district court’s determination that the use of the word “exclusive” in the foreclosure decree meant the debtor was prohibited from validly assigning his right of redemption.  Dougan further asserts the court erred in finding that because the debtor did not appeal the decree, “the law of the case” and res judicata rendered Dougan’s assignment invalid and unenforceable.  OPINION HOLDS: Because the debtor had the exclusive right of redemption under Iowa Code section 628.3 (2017) and the foreclosure decree, and because Iowa case law states the right likewise applies to the debtor’s section 628.25 assignee, Dougan’s assignment was valid and enforceable.  The district court erred in holding otherwise.  Accordingly, we reverse the district court’s ruling finding the assignment was invalid, and we remand for entry of judgment consistent with this opinion.

Case No. 18-1038:  Clarence G. Bryant v. State of Iowa

Filed Mar 20, 2019

View Opinion No. 18-1038

            Appeal from the Iowa District Court for Mahaska County, Shawn Showers, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            Clarence Bryant appeals the summary denial of his postconviction-relief application, arguing new factual and legal grounds exist to render dismissal on untimeliness grounds improper.  OPINION HOLDS: We affirm the dismissal of Bryant’s postconviction-relief application.

Case No. 18-1082:  State of Iowa v. Jack Leonard Hays

Filed Mar 20, 2019

View Opinion No. 18-1082

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  Dissent by Tabor, P.J.  (11 pages)

            Jack Hays appeals the district court decision denying his claim the restitution order in his case was improper.  OPINION HOLDS:  Hays’s claims do not involve an illegal sentence.  His claims regarding the amount of restitution and his assertion the amount of restitution constitutes cruel and unusual punishment are barred by the law of the case doctrine.  The district court took Hays’s reasonable ability to pay into consideration and reduced the amount of his payments.  For the future, the better practice would be for the State to prepare a statement of the specific charges in the restitution plan and the reason for those charges.  We affirm the decision of the district court.  DISSENT ASSERTS: I would remand for further proceedings to clarify the basis of Hays’s restitution plan issued by the Department of Corrections (DOC).  The district court never entered a supplemental order finalizing the amount Hays owes, and the DOC plan does not supplant the court’s duty to approve the total amount of restitution and the offender’s ability to pay. 

Case No. 18-1123:  State of Iowa v. Jeffrey Peterson

Filed Mar 20, 2019

View Opinion No. 18-1123

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (7 pages)

            Jeffrey Peterson appeals the judgment and sentence entered after pleading guilty to possession of controlled substance with intent to deliver, second offense.  OPINION HOLDS: I. We preserve Peterson’s claim his counsel was ineffective by failing to file a motion in arrest of judgment challenging the knowing and voluntary nature of his plea for postconviction relief.  II. The district court did not abuse its discretion in refusing to consider a suspended sentence.

Case No. 18-1189:  Becky Jane Tressel v. Brandon R. Kuehl

Filed Mar 20, 2019

View Opinion No. 18-1189

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (7 pages)

            A father appeals from the district court’s order modifying the physical care provisions of the custody decree concerning his minor child.  OPINION HOLDS: We affirm the physical care modification.  We award Becky $5000 in appellate attorney fees.  Costs on appeal are assessed equally between the parties.

Case No. 18-1259:  State of Iowa v. Dejonte Rovara Davis

Filed Mar 20, 2019

View Opinion No. 18-1259

            Appeal from the Iowa District Court for Scott County, Mary E. Howes and Joel W. Barrows, Judges.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J. (3 pages)

            Dejonte Davis appeals his convictions and sentence for intimidation with a dangerous weapon and possession of a firearm by a prohibited person.  He asserts his trial counsel was ineffective for failing to object to evidence he participated in gang activity and the court abused its discretion by sentencing him without considering all mitigating factors related to his juvenile status.  OPINION HOLDS: We preserve his ineffective-assistance claim so a complete record may be developed, and we find the court did not abuse its discretion in sentencing because it properly considered all relevant factors.

Case No. 18-1282:  Carla Ann Siegert v. Roger Dale Schumacher Jr.

Filed Mar 20, 2019

View Opinion No. 18-1282

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Carla Siegert appeals from the decree for custody, care, visitation, and support of the child she had with Roger Schumacher.  OPINION HOLDS: The parties have shared the care of their child since 2010 despite their contentious personal interactions when their relationship ceased.  We agree with the trial court that shared care is in the child’s best interest. 

Case No. 18-1321:  Bridgette Ferguson and Robert Rutledge v. David Jones and Veritiv Operating Company

Filed Mar 20, 2019

View Opinion No. 18-1321

            Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (8 pages)

            Plaintiffs appeal from the district court’s dismissal of their lawsuit for failing to serve the defendants within the ninety-day window required by Iowa Rule of Civil Procedure 1.302(5).  OPINION HOLDS: Defendants’ motion to dismiss was not untimely.  Plaintiffs made no showing of good cause for not serving within the Iowa Rule of Civil Procedure 1.302(5) ninety-day limit.  Consequently, the district court did not err in dismissing plaintiffs’ lawsuit.   

Case No. 18-1352:  In re the Marriage of Girschek and Marin

Filed Mar 20, 2019

View Opinion No. 18-1352

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (7 pages)

            Brendan Girschek appeals the amount of the equalization payment the district court determined was due to Janice Marin in the dissolution of the parties’ marriage.  OPINION HOLDS: Upon our review, we cannot say the district court failed to do equity in determining the amount Janice was due in equalizing the distribution of the parties’ marital property.  Accordingly, we affirm the decree and subsequent ruling in all respects.  We award appellate attorney fees to Janice.  Any costs on appeal are assessed to Brendan.

Case No. 18-1442:  In the Interest of B.C., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1442

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ., but decided by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (10 pages)

            A guardian appeals the district court’s dismissal of his petition to terminate a mother’s parental rights under Iowa Code chapter 600A (2018), upon its conclusion termination would not be in the child’s best interests.  OPINION HOLDS: We agree with the district court that the guardian did not carry his evidentiary burden to show termination is in the child’s best interests.  Consequently, we affirm the court’s ruling dismissing the termination petition.

Case No. 18-1470:  In the Interest of A.G., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1470

            Appeal from the Iowa District Court for Decatur County, Monty Franklin, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            A father appeals the termination of his parental rights to his child, arguing (1) the State failed to prove the ground for termination cited by the district court and (2) termination is not in the child’s best interests.  OPINION HOLDS: We find the first issue dispositive.  We conclude the State failed to prove the child could not be returned to the father’s custody.  We reverse the order terminating his parental rights to the child and remand for dismissal of the petition.

Case No. 18-1480:  In the Interest of D.G. and G.G., Minor Children

Filed Mar 20, 2019

View Opinion No. 18-1480

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  REVERSED AND REMANDED ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

            Parents separately appeal the termination of their parental rights to the youngest two of their five children, born in 2015 and 2017.  OPINION HOLDS: We reverse the termination of the parents’ rights to the youngest two children on the basis of the statutory exception to termination set forth in Iowa Code section 232.116(3)(c) (2018).  We remand for continued reunification services for the parents and all five children.

Case No. 18-1507:  State of Iowa v. Darnell Holman

Filed Mar 20, 2019

View Opinion No. 18-1507

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Carr, S.J.  Opinion by Mullins, J.  (4 pages)

                Darnell Holman appeals his conviction following a guilty plea to assault causing bodily injury and the sentence imposed.  He argues his trial counsel rendered ineffective assistance in allowing him to plead guilty absent a sufficient factual basis to support the charge and the court abused its discretion in sentencing him to reside in a residential correctional facility.  OPINION HOLDS: We find counsel was not ineffective as alleged and no abuse of discretion occurred.  We affirm Holman’s conviction and sentence. 

Case No. 18-1812:  In the Interest of B.A., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1812

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The mother appeals the termination of her parental rights to B.A., born in May 2017.  The juvenile court terminated the mother’s parental rights pursuant to Iowa Code section 232.116(1)(d) and (h) (2018).  On appeal, the mother purports to challenge the statutory grounds for termination.  Additionally, she argues she should have been given additional time to work toward reunification and termination is not in B.A.’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 18-1890:  In the Interest of C.S., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1890

            Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.  APPEAL DISMISSED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  Special Concurrence by Vogel, C.J.  (6 pages)

            A mother challenges a juvenile court order transferring jurisdiction from the Iowa District Court to the Wind River Tribal Court, contending the court erred in “transferring jurisdiction to the Wind River Tribal Court three days after the Tribe had filed the request and without further notice or hearing.”  OPINION HOLDS: Because the district court’s ruling was not stayed pending appeal and the child was transferred to the State of Wyoming, the issue raised by the mother is now academic.  The matter is moot, and the appeal must be dismissed.  SPECIAL CONCURRENCE ASSERTS: I agree this matter is moot and the appeal should be dismissed.  However, had the mother sought to stay the action pending this appeal, she should have then been granted a hearing on her resistance to transferring jurisdiction. 

Case No. 18-1907:  In the Interest of J.M., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1907

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

            A father appeals the order granting the mother’s petition to terminate his parental rights to his child.  OPINION HOLDS: Clear and convincing evidence shows the father abandoned the child and termination is in the child’s best interests.  Accordingly, we affirm the order terminating the father’s parental rights under Iowa Code section 600A.8(3)(b) (2018).

Case No. 18-1944:  In the Interest of S.B., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1944

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A father appeals the termination of his parental rights in his child.  OPINION HOLDS: The department of human services made reasonable efforts toward reunification by providing services appropriate to this family.  Termination of the father’s parental rights is in the child’s best interest.

Case No. 18-1969:  In the Interest of A.V., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1969

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because there is clear and convincing evidence the child cannot be returned to the mother’s care without risk of harm, the State made reasonable efforts to reunify the mother and child, and no exception weighs against termination, we affirm.

Case No. 18-1971:  In the Interest of O.B., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-1971

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (7 pages)

            A mother and father appeal the termination of their parental rights to one child.  OPINION HOLDS: Because the parents failed to challenge all the statutory grounds for termination, they have waived those issues on appeal.  The father complains about the reasonable efforts of the Department of Human Services (DHS), but we find the DHS met its obligation to make reasonable efforts in this case.  Further, because we determine the child’s best interests are served by termination of their rights, we affirm the juvenile court order.

Case No. 18-2056:  In the Interest of D.B., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2056

            Appeal from the Iowa District Court for Audubon County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Blane, S.J.  Opinion by Blane, S.J.  (8 pages)

            A mother appeals the termination of her parental rights to one child.  She contends the State did not prove the statutory grounds for termination; that termination would be detrimental to D.B. based on their bond; and the department of human services (DHS) failed to make reasonable efforts toward reunification.  OPINION HOLDS: The State proved the grounds for termination under Iowa Code section 232.116(1)(h) (2018) because the mother made no progress in her substance abuse or mental health issues leading to the initial removal.  The parent-child bond does not operate to prevent termination here.  We find DHS made reasonable efforts under the circumstances and termination is in the child’s best interests.  We affirm. 

Case No. 18-2084:  In the Interest of M.A., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2084

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            The father appeals the termination of his parental rights to his child, M.A.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (h) (2018).  The father argues he should have been given additional time to work toward reunification and termination of his rights is not in M.A.’s best interests.  OPINION HOLDS: Because an extension of time is not warranted and termination of the father’s parental rights is in M.A.’s best interests, we affirm.

Case No. 18-2089:  In the Interest of A.R. and A.R., Minor Children

Filed Mar 20, 2019

View Opinion No. 18-2089

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A mother appeals the termination of her parental rights, arguing the juvenile court should have declined to terminate her rights under the permissive grounds listed in Iowa Code section 232.116(3)(b) (2018) because her teenage daughters objected to termination.  OPINION HOLDS: Because we conclude termination of the mother’s parental rights was proper despite the objection of the children at the termination hearing, we affirm.

Case No. 18-2135:  In the Interest of J.C. and M.C., Minor Children

Filed Mar 20, 2019

View Opinion No. 18-2135

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A mother appeals the juvenile court’s termination of her parental rights to her two sons, arguing the State failed to make reasonable efforts toward reunification.  OPINION HOLDS: Because we conclude the State’s attempts to provide services to further the goal of reunification were reasonable under the circumstances, we affirm.

Case No. 18-2148:  In the Interest of S.Q., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2148

            Appeal from the Iowa District Court for Clarke County, Monty W. Franklin, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (2 pages)

            A mother appeals the termination of her parental rights to her minor child.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 18-2150:  In the Interest of T.A., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2150

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

            A mother and father appeal the termination of their parental rights.  Both parents argue the State did not prove the grounds for termination and the district court improperly denied their requests for an additional six months to achieve reunification.  The father additionally argues termination is not in the child’s best interest, the Iowa Department of Human Services (DHS) did not make reasonable efforts toward reunification, and the district court should have placed the child in a guardianship to avoid termination.  OPINION HOLDS: The State proved the grounds for termination as to both parents, as T.A. could not be returned at the time of the termination hearing.  The district court properly denied both parents’ requests for an additional six months to achieve reunification, as neither could show they would be ready to parent at the end of six months.  As to the father, termination is in T.A.’s best interests, DHS made the reasonable decision to decline to hold visitation at the father’s correctional facility, and the district court did not err in declining to place T.A. in a guardianship to preserve the parent-child relationship. 

Case No. 18-2204:  In the Interest of S.B., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2204

            Appeal from the Iowa District Court for Montgomery County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, born in 2018.  She argues (A) the State failed to prove the grounds for termination cited by the district court; (B) the department of human services failed to make reasonable efforts to reunify her with the child; (C) the district court should not have terminated her parental rights based on the parent-child bond; and (D) the district court should have afforded her additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 18-2206:  In the Interest of S.D., Minor Child

Filed Mar 20, 2019

View Opinion No. 18-2206

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (5 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The father failed to preserve his procedural due process claim for our review.  Because clear and convincing evidence supports the finding that the father abandoned or deserted the child, we affirm the termination of his parental rights pursuant to Iowa Code section 232.116(1)(b) (2018).

Case No. 18-2217:  In the Interest of T.W. and J.W., Minor Children

Filed Mar 20, 2019

View Opinion No. 18-2217

            Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Tabor, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A mother and a father separately appeal from the termination of their parental rights.  OPINION HOLDS: On our de novo review, we find clear and convincing evidence supports termination of both parents’ rights, and termination and adoption will best provide the children with much needed permanence.  We therefore affirm on both appeals.

Case No. 19-0020:  In the Interest of N.S. and N.S., Minor Children

Filed Mar 20, 2019

View Opinion No. 19-0020

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find the State established by clear and convincing evidence the children could not be returned to the mother, and termination is in the children’s best interests.

Case No. 19-0032:  In the Interest of L.D., Minor Child

Filed Mar 20, 2019

View Opinion No. 19-0032

            Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (10 pages)

            A mother and a father separately appeal the termination of their parental rights.  The mother challenges the grounds for termination and claims termination is not in the child’s best interests and an exception should be applied to avoid termination.  The father does not challenge that grounds exist for termination, but like the mother, claims termination is not in the child’s best interests.  OPINION HOLDS: There is clear and convincing evidence to support termination of parental rights pursuant to Iowa Code section 232.116(1)(e) (2018).  In light of the parents’ unresolved substance-abuse and domestic-violence issues, termination of parental rights is in the child’s best interests.  We decline to apply an exception to termination.  

Case No. 19-0069:  In the Interest of S.P., Minor Child

Filed Mar 20, 2019

View Opinion No. 19-0069

            Appeal from the Iowa District Court for Des Moines County, Jennifer S. Bailey, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother and father appeal the juvenile court decision terminating their parental rights.  OPINION HOLDS:  We find the mother did not show the Iowa Department of Human Services failed to act with due diligence in contacting relatives, she does not have standing to challenge the juvenile court’s decision to not permit the paternal grandmother to intervene, and she did not request additional services in a timely manner.  The father improperly attempted to join the first two issues raised by the mother.  We affirm the juvenile court’s decision terminating the parental rights of the mother and father

Case No. 19-0103:  In the Interest of P.L., Minor Child

Filed Mar 20, 2019

View Opinion No. 19-0103

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            The mother appeals from the termination of her parental rights to her child, P.L., who was born in 2011.  The mother challenges the court’s denial of her motion, filed one day before the scheduled termination trial, requesting additional services and a six-month continuance of the trial.  She argues the State did not fulfill its duty to make reasonable efforts to reunify her with P.L.  OPINION HOLDS: Insofar as the mother challenges the juvenile court’s denial of her motion to continue, we find no abuse of discretion.  The mother’s request for new or additional services one day before trial does not preserve her claim regarding reasonable efforts, and a delay of permanency would not be appropriate here.  We affirm the termination of the mother’s parental rights.

Case No. 19-0104:  In the Interest of E.H.-H. and C.H.-H., Minor Children

Filed Mar 20, 2019

View Opinion No. 19-0104

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (4 pages)

            A mother appeals from the termination of her parental rights.  OPINION HOLDS: Because grounds for termination exist and termination of the mother’s rights will best provide for the children’s long-term nurturing and growth, and their physical, mental, and emotions needs, we affirm.

Case No. 19-0146:  In the Interest of E.K. and A.P., Minor Children

Filed Mar 20, 2019

View Opinion No. 19-0146

            Appeal from the Iowa District Court for O’Brien County, David C. Larson, 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 challenge the termination of their parental rights.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 17-0326:  State of Iowa v. Ronald Dickey Mason

Filed Mar 06, 2019

View Opinion No. 17-0326

            Appeal from the Iowa District Court for Polk County, Peter A. Keller, Judge.  AFFIRMED.  Considered by Tabor, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            Ronald Dickey Mason appeals following a hearing on his restitution.  OPINION HOLDS: Because the sheriff’s charges for room and board were not made available to the court at the time of Mason’s sentencing, the district court properly ordered Mason to pay the charges in a supplemental order.  Mason is not entitled to a reduction in restitution because he has failed to demonstrate he lacks the reasonable ability to pay his current restitution installments.  Accordingly, we affirm the district court order denying Mason’s requested relief following the restitution hearing. 

Case No. 17-1276:  Anderson v. Iowa Department of Transportation

Filed Mar 06, 2019

View Opinion No. 17-1276

            Appeal from the Iowa District Court for Wapello County, Joel D. Yates, Judge.  AFFIRMED.  Heard by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Special Concurrence by Vaitheswaran, J.  (8 pages)

            Appellants, Kurt and Carol Anderson, and cross-appellants, Jeffrey, Larry, and Charlotte England, challenge the Iowa Department of Transportation’s cancellation of an auction for a parcel of land.  OPINION HOLDS: To the extent the parties challenge the validity of certain contracts, we conclude the department of transportation, as an agency, did not have the authority to determine the validity of the contracts.  We conclude the department of transportation’s decision to cancel the auction did not violate the Iowa Administrative Procedure Act.  SPECIAL CONCURRENCE ASSERTS: I disagree with the majority’s statement that the DOT lacks authority to adjudicate the existence of a contract.  I believe Iowa Code section 306.23 (2016) confers the necessary authority.  That said, I would conclude the agency did not err in interpreting and analyzing section 306.23.  Accordingly, I concur in the result.

Case No. 17-1327:  State of Iowa v. Nortavis Nortez Sallis

Filed Mar 06, 2019

View Opinion No. 17-1327

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (8 pages)

            Nortavis Nortez Sallis appeals his convictions and sentence for possessing cocaine as a habitual offender, possessing a firearm as a felon, and possessing marijuana as a habitual offender.  He argues the district court erred in denying his motion to suppress and abused its discretion when it admitted a photograph of a digital scale with an unknown white powder on it.  OPINION HOLDS: We find the district court properly denied Sallis’s motion to suppress, and the district court did not abuse its discretion by admitting evidence of a digital scale.

Case No. 17-1356:  Church Crop Insurance Services, Inc. v. GemCap Lending I, LLC

Filed Mar 06, 2019

View Opinion No. 17-1356

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson and Eliza J. Ovrom, Judges.  REVERSED AND REMANDED.  Heard by Tabor, P.J., Bower, J., and Carr, S.J.  Opinion by Carr, S.J.  (13 pages)

            GemCap Lending I, LLC (GemCap) appeals the district court’s grant of declaratory judgment in favor of Church Crop Insurance Services, Inc. (Church Crop).  The district court found Crop USA Insurance Agency, Inc. (Crop USA), as a debtor of GemCap, could not pledge as security funds representing commissions it owed to Church Crop.  The court ordered the release of the disputed funds to Church Crop.  OPINION HOLDS: Although we do not fault Church Crop for feeling proprietary about the funds, we think the relevant contracts and Article 9 jurisprudence compel a different result.  We find Crop USA had rights in the disputed funds and could legally pledge the funds as security.  Therefore, we reverse and remand for further proceedings.

Case No. 17-1535:  State of Iowa v. David Lee Fisher

Filed Mar 06, 2019

View Opinion No. 17-1535

            Appeal from the Iowa District Court for Appanoose County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            David Fisher appeals his conviction for burglary in the third degree.  OPINION HOLDS: We find Fisher’s claims of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings because the present record is not adequate to address these issues on direct appeal.  We affirm Fisher’s conviction.

Case No. 17-1629:  Lynch Livestock, Inc. and Nationwide Agribusiness Ins. Co. v. Kenneth Bursell

Filed Mar 06, 2019

View Opinion No. 17-1629

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Heard by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (12 pages)

            Lynch Livestock appeals a district court order affirming a final agency action in a workers’ compensation proceeding.  OPINION HOLDS: Kenneth Bursell failed to preserve the issue of whether substantial evidence supported the agency finding that Bursell’s unauthorized treatment was “reasonable and beneficial.”  The district court erred in concluding Lynch Livestock should bear responsibility for Bursell’s medical payments.

Case No. 17-1639:  State of Iowa v. Darius Albertez Ramantez Wright

Filed Mar 06, 2019

View Opinion No. 17-1639

            Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Potterfield, P.J.  (11 pages)

            Darius Wright appeals his convictions for robbery in the first degree and willful injury.  He argues neither conviction is supported by substantial evidence.  OPINION HOLDS: Because substantial evidence supports both of Wright’s convictions, we affirm.

Case No. 17-1715:  State of Iowa v. Tony E. Doolin

Filed Mar 06, 2019

View Opinion No. 17-1715

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

            Tony Eugene Doolin appeals the judgment and sentence entered following his convictions for intimidation with a dangerous weapon, assault while participating in a felony, and carrying weapons.  OPINION HOLDS: I. Because the record is incomplete as to why counsel did not object to the in-court identification and request a jury instruction on eyewitness identification, we decline to reach Doolin’s claims his trial counsel was ineffective in order to allow Doolin to raise them in a postconviction-relief action.  II. When viewed in the light most favorable to the State, there is sufficient evidence for a rational jury to find Doolin was under the influence based on a police officer’s testimony regarding his observation of Doolin and his belief that Doolin was impaired.  III. Because the evidence does not preponderate heavily against a finding that Doolin was the assailant, the district court did not abuse its discretion in overruling Doolin’s motion for a new trial. 

Case No. 17-1784:  State of Iowa v. Donald Alan Hutton

Filed Mar 06, 2019

View Opinion No. 17-1784

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J. (9 pages)

            Donald Hutton appeals his conviction of assault causing bodily injury on sufficiency-of-the-evidence grounds.  He argues the trial court erred in denying his motions for judgment of acquittal because the State failed to prove beyond a reasonable doubt he acted without justification.  OPINION HOLDS: We conclude substantial evidence supports Hutton’s conviction of assault causing bodily injury.  We therefore affirm his conviction. 

Case No. 17-1804:  State of Iowa v. Michael Joseph Labarbera

Filed Mar 06, 2019

View Opinion No. 17-1804

            Appeal from the Iowa District Court for Washington County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            Michael Labarbera appeals his conviction for the manufacture, delivery, or possession with intent to manufacture or deliver marijuana.  He asserts his counsel was ineffective for failing to object to the prosecutor’s comments and witness’s testimony that he claims improperly inflamed the jury.  OPINION HOLDS: We affirm the conviction but preserve the ineffective-assistance claim for possible postconviction relief. 

Case No. 17-1853:  State of Iowa v. Zachary Alfred Hayes

Filed Mar 06, 2019

View Opinion No. 17-1853

            Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J. (5 pages)

            Zachary Hayes appeals his convictions of multiple acts of child endangerment resulting in serious injury and neglect of a dependent person.  OPINION HOLDS: Hayes’s counsel did not provide ineffective assistance by failing to motion for judgment of acquittal on the charge of neglect of a dependent person.  Hayes’s counsel did not provide ineffective assistance by failing to challenge a jury instruction.

Case No. 17-1891:  McFadden v. Baldwin

Filed Mar 06, 2019

View Opinion No. 17-1891

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchinson, David N. May and Arthur E. Gamble, Judges.  AFFIRMED.  Heard by Tabor, P.J., Bower, J., and Carr, S.J.  Gamble, S.J., takes no part.  Opinion by Tabor, P.J.  (12 pages)

            Bar owner Steven McFadden challenges the process approved by the district court for dissolving and liquidating two limited liability companies.  OPINION HOLDS: We find no failure by the district court to do equity; substantial evidence supports its rationale for not requiring the Baldwins to assign the Mickey’s Irish Pub lease to McFadden as part of the liquidation.  McFadden failed to preserve his claim alleging a breach of fiduciary duty in the Shotgun Betty’s dissolution.  Accordingly, we affirm.  

Case No. 17-1951:  State of Iowa v. Frederic Hayer

Filed Mar 06, 2019

View Opinion No. 17-1951

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge, and Lucy J. Gamon, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.  Opinion by Vogel, C.J.  Special Concurrence by Vaitheswaran, J.  (12 pages)

            Frederic Hayer appeals his convictions and sentence for the crimes of carrying weapons, operating while intoxicated, and possession of marijuana.  He argues the district court’s incorrect interpretation of Iowa’s implied consent statute resulted in the inappropriate denial of his motion to suppress.  Also, he asserts none of the jury’s guilty verdicts were supported by sufficient evidence.  OPINIONS HOLDS: We conclude the district court correctly interpreted and applied Iowa law, and therefore, properly denied Hayer’s motion to suppress the urine test.  In addition, we find substantial evidence supports all of the jury’s guilty verdicts.  SPECIAL CONCURRENCE ASSERTS: I believe Childs does read to suggest there must be a showing of impairment in addition to a showing the defendant ingested “any amount” of an illegal substance.  However, because that portion of the opinion is only dicta, I agree with the majority’s holding that we cannot construe that decision as Hayer would like.

Case No. 17-2010:  In the Matter of the Estate of Jean Peak Hadsall, Deceased.

Filed Mar 06, 2019

View Opinion No. 17-2010

            Appeal from the Iowa District Court for Warren County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (11 pages)

            John Hadsall appeals the probate court’s judgment ordering him to return $383,595.63 to his mother Jean’s estate.  OPINION HOLDS: Because John was in a confidential relationship with Jean, and because he failed to show that his transfers of substantial amounts of Jean’s assets from her accounts to his were made in good faith or at the direction of or with the assent of Jean, we agree with the probate court that John must return the “gifted” assets to Jean’s estate.  Additionally, the amount calculated by the probate court to be returned was within the permissible range of evidence, and we find no reason to disturb the calculation.  We therefore affirm the probate court’s ruling in all respects.

Case No. 17-2074:  Midwest Ambulance Service of Iowa, Inc. v. Delaware Township, Polk County, Iowa

Filed Mar 06, 2019

View Opinion No. 17-2074

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED AND REMANDED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (14 pages)

            Delaware Township appeals the judgment entered in favor of Midwest Ambulance Service of Iowa, Inc. (Midwest Ambulance) after a jury awarded Midwest Ambulance $170,000 in damages on a breach-of-contract claim.  OPINION HOLDS: I. Delaware Township’s claim concerning the invalidity of the contract based on failure to meet statutory notice requirements is without merit.  Delaware Township had the authority to enter into the contract with Midwest Ambulance pursuant to Iowa Code section 359.42 (2009) (explicitly authorizing the trustees of each township to provide emergency medical service), and the township’s failure to provide notice as required by section 359.17 does not render the contract void.  II. Because Delaware Township failed to raise the issue of Midwest Ambulance’s failure to exhaust contractual remedies in its motion for directed verdict, the issue is not preserved for our review.  III. Delaware Township also failed to preserve error on its claim that Midwest Ambulance breached the contract by failing to exhaust contractual remedies.  IV. The district court properly exercised its discretion in excluding evidence of a fatal accident involving a Midwest Ambulance vehicle because the danger of unfair prejudice outweighed what little probative value the evidence contributed.  Even if evidence concerning the township’s failure to comply with statutory notice requirements was relevant, the court properly exercised its discretion by excluding it because the evidence was cumulative.  V.  The district court’s award of $72,255.51 in attorney fees and costs was not clearly unreasonable or based on untenable grounds.  Because the district court acted within its discretion in awarding attorney fees and costs, we affirm.  VI. We remand to the district court for the limited purpose of an evidentiary hearing on and the fixing of appellate attorney fees. 

Case No. 17-2080:  Timothy Terrell Hines v. State of Iowa

Filed Mar 06, 2019

View Opinion No. 17-2080

            Appeal from the Iowa District Court for Linn County, Paul D. Miller and Chad Kepros, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (3 pages)

            Timothy Hines appeals the dismissal of his application for postconviction relief.  OPINON HOLDS: We affirm the dismissal of Hines’s application. 

Case No. 18-0069:  Lynda Cich, Executor of Estate of June McLeish, Lynda Cich, Hedilyn Leavitt, and Heatherlyn Lambert v. Mark McLeish

Filed Mar 06, 2019

View Opinion No. 18-0069

            Appeal from the Iowa District Court for Bremer County, Colleen D. Weiland, Judge.  AFFIRMED AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.  Opinion by Vaitheswaran, J.  (10 pages)

            Mark McLeish appeals the probate of June McLeish’s will, challenging the district court’s determinations that (1) he had a confidential relationship with June, (2) he breached a fiduciary duty under the terms of his power of attorney, (3) he intentionally interfered with the sisters’ inheritance, and (4) the sisters were entitled to damages under the doctrine of ademption.  OPINION HOLDS: We affirm the district court’s order, and we remand to the district court for consideration of an award of appellate attorney fees.

Case No. 18-0132:  State of Iowa v. Ryan Dale Dunn

Filed Mar 06, 2019

View Opinion No. 18-0132

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Potterfield, P.J. (10 pages)

            Ryan Dunn appeals the district court’s denial of his motion to suppress.  Dunn concedes that he initially engaged in a consensual interaction with police officers but argues actions taken by officers during the encounter resulted in the unconstitutional seizure of his person.  He also argues his vehicle was unconstitutionally searched without a warrant and without an applicable exception to the warrant requirement.  Finally, Dunn argues, in the alternative, that he was subject to custodial interrogation without receiving a Miranda warning.  OPINION HOLDS: We affirm the district court’s denial of Dunn’s motion to suppress.

Case No. 18-0167:  State of Iowa v. Roger Paul Lustgraaf

Filed Mar 06, 2019

View Opinion No. 18-0167

            Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (3 pages)

            Roger Lustgraaf appeals his conviction of two counts of sexual abuse in the second degree.  OPINION HOLDS: The district court did not abuse its discretion in denying Lustgraaf’s motion for new trial.  Lustgraaf’s counsel was not ineffective for failing to object to a jury instruction.

Case No. 18-0172:  David A Wild v. Bruce A. Willey, Bruce A. Willey, P.C., and Willey, O'Brien, L.C.

Filed Mar 06, 2019

View Opinion No.

            Appeal from the Iowa District Court for Linn County, Sean McPartland, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (19 pages)

                David Wild appeals district court rulings granting summary judgment in favor of defendants on his claims of legal malpractice, breach of a business partner’s fiduciary duty, fraudulent misrepresentation, and equitable indemnity.  OPINION HOLDS: We affirm the denial of Wild’s motion for additional time to designate expert witnesses and the district court’s grant of summary judgment on all claims. 

Case No. 18-0204:  Flix Brewhouse, LLC v. Merle Hay Mall, L.P.

Filed Mar 06, 2019

View Opinion No. 18-0204

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  (12 pages)

            Merle Hay Mall (MHM) appeals a district court ruling finding an enforceable settlement agreement between MHM and Flix Brewhouse Iowa.  MHM claims the parties did not reach an agreement on the meaning of the contract terms in the settlement agreement, so no contract existed.  OPINION HOLDS: We find substantial evidence supports the district court’s conclusion an enforceable settlement agreement existed between the parties and affirm the district court.

Case No. 18-0336:  Richard Huff v. CRST Expedited, Inc. a/k/a CRST International and AIG Insurance Company

Filed Mar 06, 2019

View Opinion No. 18-0336

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Gamble, S.J., takes no part.  Opinion by Vogel, C.J.  (10 pages)

            CRST Expedited, Inc. and AIG Insurance Co. (collectively, CRST) appeal the ruling by the district court reversing and remanding Richard Huff’s alternate-care decision of the Iowa Workers’ Compensation Commission.  CRST asserts the court erred in finding medical evidence is not required for an award of alternate care under Iowa Code section 85.27 (2017).  It further asserts Huff is not entitled to the specific appliances and services he seeks.  OPINION HOLDS: We agree with the district court that the lack of medical evidence is not a bright-line bar to an award of alternate-medical-care benefits.  However, the court’s determination that the specific appliances and services Huff requests are available to him relies on factual findings that must be made by the agency.  Because the agency used the wrong legal standard, the case must be remanded for the agency to make factual determinations, notwithstanding the lack of medical evidence to support his requests.

Case No. 18-0353:  Mark B. Irland, M.D. v. Iowa Board of Medicine

Filed Mar 06, 2019

View Opinion No.

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (9 pages)

            Mark Irland, M.D., appeals from the dismissal of his petition for judicial review, contending the district court erred in concluding it was without authority to review the Confidential Letter of Warning issued to him by the Iowa Board of Medicine.  OPINION HOLDS: Because nothing the Board “advised” has resulted in Board action, Irland has not been adversely affected by a final agency action.  The district court did not err in concluding it was without authority to review the Confidential Letter of Warning.  We affirm.

Case No. 18-0381:  In re the Marriage of Dauterive

Filed Mar 06, 2019

View Opinion No. 18-0381

            Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (14 pages)

            Tricia Dauterive appeals from a district court order on her motion for modification of her divorce decree with Christopher Dauterive.  She contends the district court erred in continuing the shared-care arrangement.  She also contends the district court wrongly ordered her to pay all of their minor child’s orthodontia expenses and miscalculated child support and the parties’ respective shares of unreimbursed medical expenses.  Finally, she contests the award of trial attorney fees.  OPINION HOLDS: Tricia did not show ending the shared-care arrangement would be in the child’s best interests, so we affirm that provision of the modification ruling.  But we reverse the order that Tricia is solely responsible for the child’s orthodontia, reverse the award of attorney fees, and remand for recalculation of child support and the parties’ obligations for unreimbursed medical expenses. 

Case No. 18-0408:  State of Iowa v. Franklin Lee Harris

Filed Mar 06, 2019

View Opinion No. 18-0408

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Vogel, C.J.  (3 pages)

            Franklin Harris appeals his convictions and sentence for operating while intoxicated, third offense, and driving while his license is revoked.  He asserts his trial counsel was ineffective for failing to object to the trial information, conduct proper discovery, and properly use plea negotiations.  OPINION HOLDS: The trial information adequately alerted Harris to the nature of the arresting officer’s expected testimony; therefore, his counsel was not ineffective for failing to object to the trial information.  We affirm his convictions and preserve his ineffective-assistance claims related to discovery and plea negotiations for possible postconviction relief.

Case No. 18-0409:  In re the Marriage of Sterner

Filed Mar 06, 2019

View Opinion No. 18-0409

            Appeal from the Iowa District Court for Madison County, Richard B. Clogg, Judge.  AFFIRMED AS MODIFIED.  Heard by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (20 pages)

            Mary Sterner appeals from the decree dissolving her marriage to Robert Sterner Jr.  Mary challenges a number of provisions in the decree, including those involving spousal support; the division of farmland; setting aside Robert’s inheritance as non-marital; the determination Mary’s personal injury awards were marital property; the filing of their 2016 taxes; and Robert’s bonus and retirement contributions from 2017—the year of the dissolution.  Additionally, she asks for an award of appellate attorney fees.  Robs asks that we affirm the decree, deny Mary’s request for appellate attorney fees, and award him fees instead.  OPINION HOLDS: Because we agree with Mary that Robert should not be allowed to offset the entire amount of his inheritance, we adjust the equalization payment Robert owes to Mary to $55,323.  Additionally, we amend Robert’s monthly spousal-support obligation to $4000 until Mary reaches the age of sixty-five—unless she remarries or dies before that time.  We otherwise affirm the district court’s dissolution decree.  We decline to award either party appellate attorney fees. 

Case No. 18-0522:  State of Iowa v. Toby Richards

Filed Mar 06, 2019

View Opinion No. 18-0522

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (23 pages)

            Toby Richards appeals from judgment and sentences imposed upon his convictions for domestic abuse assault, third or subsequent offense; domestic abuse assault by strangulation; and possession of a firearm by a domestic violence offender.  He asserts the trial court erred in allowing bodycam video of the complaining witness under the excited-utterance exception to the hearsay rule.  He also contends the court abused its discretion in allowing evidence of his prior bad acts.  He argues there in insufficient evidence to sustain the convictions, the court erred in failing to give his requested instruction about expert-witness testimony, and his confrontation rights were violated.  Richards also challenges the sentences imposed.  OPINION HOLDS: We find no error in the admission of the bodycam video and no abuse of discretion as to admission of prior bad acts on the grounds asserted.  We find sufficient evidence to sustain the convictions of domestic abuse assault, third or subsequent offense, and domestic abuse assault by strangulation.  However, we find there is insufficient evidence of possession of a firearm to sustain that conviction.  The district court did not abuse its discretion in denying Richards’ proposed instruction as to expert-witness testimony.  Because we reverse the conviction on count 3, we remand for resentencing, at which time Richards may assert his request that he be allowed to serve his sentences for prior offenses concurrently with the sentences for the instant convictions.

Case No. 18-0529:  State of Iowa v. Michelle Brewer

Filed Mar 06, 2019

View Opinion No. 18-0529

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Michelle Brewer appeals her conviction for operating while intoxicated.  OPINION HOLDS: We find substantial evidence in the record supports her conviction.  We affirm Brewer’s conviction.

Case No. 18-0545:  In the Interest of Z.M., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-0545

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Tabor and McDonald, JJ.  Opinion by Potterfield, P.J.  (11 pages)

            C.M.-G., appeals the juvenile court’s termination of her parental rights to her biological child, Z.M., in a private termination action.  The juvenile court terminated C.M.-G.’s parental rights pursuant to Iowa Code section 600A.8(1) (2017), which allows the court to terminate when the parent signed a release of custody and the release has not been revoked.  C.M.-G maintains she revoked her release of custody within the ninety-six hours contemplated by Iowa Code section 600A.4(4).  Alternatively, she maintains the juvenile court should have allowed her to revoke the release after the ninety-six hours elapsed because she established good cause for the revocation.  She contends she demonstrated good cause because (1) the release was obtained by fraud, coercion, or misrepresentation of law or fact and (2) she did not understand the release at the time she signed it.  Finally, C.M.-G argues the court should not have granted the petition to terminate her parental rights because it is not in Z.M.’s best interests.  OPINION HOLDS: C.M.-G has not met her burden to prove she revoked her release of custody within the statutorily-prescribed window or that there was good cause to do so afterward.  Because her release of custody is not revoked and it is in the best interests of Z.M., we affirm the termination of C.M.-G.’s parental rights to the child.

Case No. 18-0555:  State of Iowa v. Lonnie L. Richardson

Filed Mar 06, 2019

View Opinion No. 18-0555

            Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            Lonnie Richardson appeals his convictions for driving while barred, alleging his counsel provided ineffective assistance.  OPINION HOLDS: Counsel did not provide ineffective assistance by failing to ensure that Richardson’s waiver of his right to a jury trial was knowing, intelligent, and voluntary; failing to move for judgment of acquittal; or failing to assert a necessity defense.

Case No. 18-0583:  In the Matter of the Estate of Marrian M. Newhall, Deceased.

Filed Mar 06, 2019

View Opinion No. 18-0583

            Appeal from the Iowa District Court for Butler County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (10 pages)

            Russell Newhall challenges the probate court’s ruling on his motion to enforce a settlement agreement with his sister Marcia Roll dividing property from their mother’s estate, arguing because he received the grain bins under the agreement, the grain inside the bins belonged to him.  OPINION HOLDS: Because the court properly applied contract principles in resolving the dispute, we affirm.

Case No. 18-0620:  State of Iowa v. Joseph Edward Brekke

Filed Mar 06, 2019

View Opinion No. 18-0620

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

            Joseph Brekke appeals his convictions for operating while intoxicated and possession of controlled substances.  OPINION HOLDS: We find substantial evidence supports each conviction and affirm the district court.

Case No. 18-0635:  State of Iowa v. Kevin Willie McGee, Jr.

Filed Mar 06, 2019

View Opinion No. 18-0635

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

         A jury convicted Kevin McGee of third-degree sexual abuse and possession of a firearm as a felon.  The jury also made a conclusion sufficient for application of the minimum sentence contained in Iowa Code section 902.7 (2017)—that McGee represented he had a firearm at the time he committed the crime of sexual abuse.  On appeal, McGee challenges the sufficiency of the evidence as to the possession charge and the jury’s finding that he represented he had a firearm when he committed sexual abuse.  OPINION HOLDS: We conclude the evidence was sufficient.  We therefore affirm the denial of McGee’s motions for judgment of acquittal and, consequently, his convictions and sentences.

Case No. 18-0653:  Kent Welsh v. Lithia Vaudm, Inc. d/b/a Lithia Volkswagen of Des Moines and Anthony M. Gladney

Filed Mar 06, 2019

View Opinion No. 18-0653

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            Kent Welsh appeals from an adverse jury verdict in his civil suit against the defendants, claiming the district court abused its discretion in (1) disallowing a telephone deposition; (2) excluding evidence of Lithia’s rating with the Better Business Bureau; and (3) excluding evidence of reviews and complaints filed with the Better Business Bureau.  OPINION HOLDS: We discern no abuse of discretion in the court’s rulings.  We affirm the jury verdict and the judgment in favor of the defendants.

Case No. 18-0663:  In re the Marriage of Madhamanchi and Dandamudi

Filed Mar 06, 2019

View Opinion No. 18-0663

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vogel, C.J.  (6 pages)

            Jyothsna Madhamanchi appeals from the child custody, spousal support, and attorney fee provisions of the decree dissolving her marriage to Madhu Dandamudi.  She asserts the district court should have placed their child in her physical care or it should have ordered additional visitation, communication, and transportation for the child.  She also requests increased spousal support, trial attorney fees, and appellate attorney fees.  OPINION HOLDS: Placing weight on the district court’s findings of credibility, we affirm the decree and decline to award appellate attorney fees.

Case No. 18-0675:  State of Iowa v. Toby Ryan Richards

Filed Mar 06, 2019

View Opinion No. 18-0675

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge, and Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vogel, C.J.  (2 pages)

            Toby Richards appeals from his conviction for driving while barred as a habitual offender.  He asserts his counsel was ineffective for failing to memorialize the terms of his plea agreement on the record, failing to adequately explain the plea agreement, and allowing the State to violate the plea agreement in sentencing.  OPINION HOLDS: On the record before us, we affirm Richards’s conviction but preserve his ineffective-assistance claims for possible postconviction relief.

Case No. 18-0680:  State of Iowa v. Kelvin D. Willform

Filed Mar 06, 2019

View Opinion No. 18-0680

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Bower, JJ.  Opinion by Vogel, C.J.  (2 pages)

            Kelvin Willform appeals his convictions for domestic abuse assault by strangulation causing bodily injury and false imprisonment.  He asserts his counsel was ineffective for failing to move for a competency hearing and for failing to call his parole officer as a witness.  OPINION HOLDS: On this record, we affirm Willform’s convictions but preserve his ineffective-assistance claims for possible postconviction relief so a complete record may be developed and to afford trial counsel an opportunity to respond to the claims.

Case No. 18-0702:  In the Matter of W.S., Alleged to Be Seriously Mentally Impaired

Filed Mar 06, 2019

View Opinion No. 18-0702

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  APPEAL DISMISSED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Potterfield, P.J.  (3 pages)

            W.S. appeals from an order finding he remained seriously mentally impaired.  OPINION HOLDS: Appeal dismissed as untimely.

Case No. 18-0730:  Reiff Funeral Homes, Inc. v. Robert B. Reiff d/b/a Reiff Funeral Home and Crematory

Filed Mar 06, 2019

View Opinion No. 18-0730

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran J., and Gamble, S.J.  Opinion by Gamble, S.J.  (19 pages)

            Robert (Bobby) Reiff, doing business as Reiff Funeral Home and Crematory, appeals from an adverse judgment entered in favor of Reiff Funeral Homes, Inc. and its principal Joseph (Joe) Reiff in this common law trademark infringement suit.  Bobby asserts the district court erred in concluding “Reiff Funeral Home” has a secondary meaning entitled to trademark protections and the plaintiff’s case should be dismissed on the basis of laches.  OPINION HOLDS: We conclude Joe proved he had a valid trademark in the name of Reiff Funeral Home and Bobby infringed on that trademark.  Joe’s trademark infringement claim ripened when Bobby used the internet to enter Joe’s market. Bobby failed to prove his equitable defense of laches.

Case No. 18-0753:  In the Matter of the Estate of John R. Rhoten, Deceased.

Filed Mar 06, 2019

View Opinion No. 18-0753

            Appeal from the Iowa District Court for Dallas County, Richard B. Clogg, Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Tabor and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Kathryn Rhoten appeals the district court decision denying her challenge to the validity of a premarital agreement filed in the probate proceedings for her late husband, John Rhoten.  OPINION HOLDS:  We find Kathryn has not shown the premarital agreement is unenforceable on the ground John failed to disclose all of his assets and debts to her and further find the premarital agreement is not unconscionable.  We affirm the district court.

Case No. 18-0793:  Joseph Goche v. WMG, L.C.

Filed Mar 06, 2019

View Opinion No. 18-0793

            Appeal from the Iowa District Court for Kossuth County, David A. Lester, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (10 pages)

            Limited liability company WMG appeals the district court’s grant of Joseph Goche’s motion for summary judgment on Joseph’s claim against WMG for its breach of a warranty deed.  The district court applied the doctrine of merger and rejected WMG’s request to reform the contract.  OPINION HOLDS: WMG raised a genuine issue of material fact by attempting to make a contrary showing to overcome the presumption of merger.  The district court erred when it granted Joseph’s motion for summary judgment.  We reverse and remand for further proceedings. 

Case No. 18-0884:  In re the Marriage of Monat

Filed Mar 06, 2019

View Opinion No. 18-0884

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED AS MODIFIED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Dissent by Vaitheswaran, J.  (15 pages)

            Benjamin Monat appeals from the decree dissolving his marriage to Heather Monat.  He argues the district court erred in awarding Heather physical care of the children, its division of property, and in awarding Heather spousal support.  Heather requests appellate attorney fees.  OPINION HOLDS:  The district court did not err in declining to award joint physical care of the parties’ children and instead awarding Heather physical care of the children.  The property division was equitable.  However, the court’s award of spousal support was inequitable.  We strike that portion of the decree.  Heather’s request for appellate attorney fees is denied.  DISSENT ASSERTS: I believe the district court acted equitably in awarding Heather spousal support, and I would affirm that portion of the district court order.  

Case No. 18-0885:  Khamfeung Thongvanh v. State of Iowa

Filed Mar 06, 2019

View Opinion No. 18-0885

            Appeal from the Iowa District Court for Webster County, Adria A.D. Kester, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Tabor and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            Khamfeung Thongvanh appeals the denial of his application for post-conviction relief.  OPINION HOLDS: Thongvanh’s application is not time-barred, however, the district court was correct in denying Thongvanh’s application because State v. Plain does not apply retroactively.

Case No. 18-0926:  Jianning Roy Wang v. Amanda Sue Baumgartner

Filed Mar 06, 2019

View Opinion No. 18-0926

            Appeal from the Iowa District Court for Linn County, Sean McPartland and Denver D. Dillard, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (5 pages)

            Jianning Wang appeals the dismissal of his civil petition for failure to comply with the service requirements of the Iowa Rules of Civil Procedure.  OPINION HOLDS: We affirm the district court’s dismissal of Wang’s petition, without prejudice. 

Case No. 18-1002:  Mek Baccam v. ACH Food Companies, a/k/a Tones and Secura Insurance Company

Filed Mar 06, 2019

View Opinion No. 18-1002

            Appeal from the Iowa District Court for Polk County, Paul R. Huscher, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (17 pages)

            An injured worker appeals the district court’s judicial review decision in his workers’ compensation case.  OPINION HOLDS: We find substantial evidence supports the award of permanent-partial-disability (PPD) benefits.  We agree with the appeal deputy’s interpretation and application of Iowa Code section 86.13 (2013) in determining penalty benefits.  We find no abuse of discretion in the allocation of costs.  Therefore, we affirm those parts of the district court judgment that affirm the commissioner’s ruling on Baccam’s PPD benefits and taxation of transcript costs.  We reverse that part of the district court judgment remanding the case to the workers’ compensation commissioner with directions.  Costs on appeal are taxed to Baccam.

Case No. 18-1015:  Thomas Kollbaum v. Feyd Blevins

Filed Mar 06, 2019

View Opinion No. 18-1015

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED AS MODIFIED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            A mother appeals a provision of a decree establishing custody, visitation, and support, which determined the child should bear the father’s surname rather than the mother’s.  OPINION HOLDS:  It is in the child’s best interest to bear the mother’s surname.

Case No. 18-1120:  Brett A. Johnson v. Shawn W. Leonard

Filed Mar 06, 2019

View Opinion No. 18-1120

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A plaintiff appeals the grant of summary judgment on his claim of unjust enrichment.  OPINION HOLDS:  The grant of summary judgment was proper because the defendant was entitled to judgment as a matter of law and no unjust enrichment occurred.

Case No. 18-1124:  Troy Alan Hartson v. State of Iowa

Filed Mar 06, 2019

View Opinion No. 18-1124

            Appeal from the Iowa District Court for Linn County, Lars Anderson and Chad Kepros, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (4 pages)

            Troy Hartson appeals the dismissal of his application for postconviction relief (PCR) on statute-of-limitations grounds.  He argues his application is based on newly-discovered evidence and he is therefore excepted from the statute of limitations and the court erred in dismissing his application without affording him a hearing.  OPINION HOLDS: We affirm the dismissal of Hartson’s PCR application.

Case No. 18-1254:  State of Iowa v. Joseph Eric Funke

Filed Mar 06, 2019

View Opinion No. 18-1254

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Vaitheswaran, J. (3 pages)

            Joseph Funke appeals the sentence entered on his conviction for possession of methamphetamine, third offense.  OPINION HOLDS: We discern no abuse of discretion in the district court’s sentencing decision.  Accordingly, we affirm Funke’s conviction, judgment and sentence for possession of methamphetamine, third offense.

Case No. 18-1300:  In the Interest of F.E., L.E., and J.E., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-1300

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

            A father appeals the termination of his parental rights to his children, born in 2009, 2012, and 2014.  He contends termination is not in the best interests of the children.  OPINION HOLDS: Upon our review, we affirm termination of the father’s parental rights.

Case No. 18-1379:  State of Iowa v. Mikala Celeste Webster

Filed Mar 06, 2019

View Opinion No. 18-1379

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (3 pages)

            Mikala Webster appeals her conviction of operating while intoxicated.  She argues the district court erred in denying her motion to dismiss on statute-of-limitations grounds.  On appeal, she argues Iowa Code section 802.6(1) (2013) violates the due process and equal protection clauses of the state and federal constitutions.  OPINION HOLDS: We agree with the State that Webster has failed to preserve error on her constitutional claims, as they were not raised in nor decided by the district court.  We affirm the denial of her motion to dismiss and her conviction. 

Case No. 18-1386:  In the Interest of M.P., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-1386

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vaitheswaran, J.  (5 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The department satisfied its reasonable-efforts mandate, and the juvenile court did not abuse its discretion in declining to grant an extension of time to facilitate reunification.  We affirm the termination of the father’s parental rights to the child.

Case No. 18-1418:  State of Iowa v. Gregory Hintze

Filed Mar 06, 2019

View Opinion No. 18-1418

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  SENTENCE VACATED AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J. (6 pages)

            Gregory Hintze appeals following his conviction for extortion.  Hintze claims the court abused its discretion in sentencing by allowing the victim’s mother to provide a victim impact statement and considering unproven and unprosecuted offenses.  OPINION HOLDS: We vacate the defendant’s sentence and remand for resentencing before a different judge.

Case No. 18-1773:  State of Iowa v. Mark McMahon

Filed Mar 06, 2019

View Opinion No. 18-1773

            Appeal from the Iowa District Court for Boone County, Steven A. Owen, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vaitheswaran, J. (2 pages)

             

            Mark McMahon appeals following his guilty plea to failure to comply with sex offender registry requirements, first offense.  OPINION HOLDS: We find the record inadequate to resolve McMahon’s ineffective-assistance claim.  Accordingly, we preserve it for postconviction relief.

Case No. 18-1873:  In the Interest of J.D., J.D., and J.D., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-1873

            Appeal from the Iowa District Court for Osceola County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (16 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: I. Because clear and convincing evidence shows imminent harm would likely occur to the children’s physical, mental, or social well-being if returned to the mother’s custody, termination of the mother’s parental rights is appropriate under Iowa Code section 232.116(1)(f) (2017).  II. Assuming the mother preserved error on her reasonable-efforts challenge, we are unable to conclude the State failed to make reasonable efforts.  III. We decline to delay the children’s permanency by granting the mother additional time to reunify with the children.

Case No. 18-1954:  In the Interest of D.S., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-1954

            Appeal from the Iowa District Court for Polk County, Joseph Seidlin, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  Dissent by Tabor, J.  (14 pages)

            A father appeals the juvenile court decision terminating his parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support the termination and the State engaged in reasonable efforts to reunite the father with the child.  We also find termination is in the child’s best interests.  We affirm the juvenile court.  DISSENT ASSERTS: I respectfully disagree with the majority’s decision to affirm the order terminating the incarcerated father’s parental rights.  By not offering any visitation with D.S., despite the father’s persistent requests, I believe the State failed to satisfy the reasonable-efforts requirement.

Case No. 18-1970:  In the Interest of M.H., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-1970

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

            A mother appeals the juvenile court order 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 is in the child’s best interests, and no exceptions apply.  We affirm the juvenile court’s decision.

Case No. 18-2002:  In the Interest of R.P., C.L., and B.T., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2002

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            Parents separately appeal juvenile court rulings in a termination-of-parental-rights proceeding.  OPINION HOLDS: We affirm the termination of both parents’ rights and reject the mother’s reasonable-efforts challenge. 

Case No. 18-2007:  In the Interest of L.W., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2007

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (6 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: Because we agree with the juvenile court’s denial of the father’s requests for visitation while in prison and for additional time for reunification, we affirm the court’s order terminating the father’s parental rights.

Case No. 18-2020:  In the Interest of M.R., S.R., and K.R., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2020

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A mother appeals the termination of her parental rights in her three children.  OPINION HOLDS: The mother failed to preserve error on her claims that her consent to termination was not voluntary and intelligent and that an exception to termination applied.  We do not reach the merits of her claims.

Case No. 18-2091:  In the Interest of W.S., S.A.-Y., and E.A.-Y., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2091

            Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            The mother appeals the termination of her parental rights to her three children: W.S., born in 2010; S.A.-Y., born in 2011; and E.A.-Y., born in 2015.  The mother maintains the State did not prove the statutory grounds for termination, termination is not in the children’s best interests, and the parent-child bond weighs against termination.  OPINION HOLDS: We affirm the juvenile court’s termination of the mother’s parental rights.

Case No. 18-2099:  In the Interest of A.Z., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2099

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (5 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The father has waived argument concerning the termination of his parental rights under Iowa Code section 232.116(1)(l) (2018).  Because we need only find termination proper on one ground cited by the district court, we may affirm on the termination on this ground.  The evidence shows termination, not long-term guardianship, is in the child’s best interests.  Accordingly, we affirm the termination of the father’s parental rights. 

Case No. 18-2111:  In the Interest of J.K. and F.S., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2111

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (8 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: I. The State proved the grounds for termination pursuant to Iowa Code section 232.116(1)(h) (2018) because clear and convincing evidence shows the children would be exposed to imminent likelihood of harm if returned to the mother’s care due to the mother’s failure to provide adequate supervision.  II. The State made reasonable efforts to remedy the need for the children’s removal.  III. Termination is in the children’s best interests.  IV. We decline to grant the mother additional time.

Case No. 18-2112:  In the Interest of O.C.-M., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2112

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            The father appeals the termination of his parental rights to his child.  He argues the district court should have established a guardianship rather than terminating his parental rights because termination is not in the best interests of the child and a relative’s legal custody of the child precluded termination.  OPINION HOLDS: Due to a no-contact order that remains in effect until 2023 and the child’s need for permanency, we find termination is in the best interests of the child and there is nothing precluding termination.

Case No. 18-2130:  In the Interest of A.G., G.M., and T.M., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2130

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A father appeals the order terminating his parental rights to two children.  The father raises many issues with the termination.  OPINION HOLDS: After reviewing the record, we find none of the issues raised require reversal.  The State showed the father’s ongoing issues with substance abuse, mental health, and physical violence render him not safe as a custodial option for these children.  Moving promptly toward permanency promotes their welfare. 

Case No. 18-2136:  In the Interest of J.K., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2136

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            The mother appeals the termination of her parental rights to her child.  She 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) and termination is not in the best interests of the child.  OPINIONS HOLDS: Because the mother cannot sustain sobriety, we find grounds for termination exist and termination is in the best interests of the child. 

Case No. 18-2137:  In the Interest of T.M., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2137

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (9 pages)

            A father appeals the termination of his parental rights to a one-year-old child.  He contests the statutory grounds for termination, the best-interests determination, and the court’s refusal to forego termination due to the parent-child bond.  He also asserts testimony from his substance abuse and mental health counselors violated confidentiality.  He requests an additional six months to work toward reunification and in the alternative asks us to find it was error not to place the child with his relatives and to find the department of human services provided reasonable visitation services.  OPINION HOLDS: The State established the father is not a safe custodian for the child.  He has unresolved substance abuse, mental health, and “anger issues” that preclude placing the child with him or delaying termination and permanency further.  His other claims lack merit or were not preserved for our review.  We affirm the termination of his parental rights. 

Case No. 18-2175:  In the Interest of J.J. and J.J., Minor Children

Filed Mar 06, 2019

View Opinion No. 18-2175

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (3 pages)

            A father appeals the termination of his parental rights to his minor child pursuant to Iowa Code section 232.116(1)(b), (e), and (h) (2018).  OPINION HOLDS: We affirm the termination of the father’s parental rights. 

Case No. 18-2177:  In the Interest of N.K., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2177

            Appeal from the Iowa District Court for Chickasaw County, David F. Staudt, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother appeals the termination of her parental rights to her minor child.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 18-2199:  In the Interest of C.T., Minor Child

Filed Mar 06, 2019

View Opinion No. 18-2199

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (5 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: The father has no standing to assert the child could be returned to the custody of the mother in order to avoid termination of his own parental rights.  Termination of the father’s parental rights is in the child’s best interests.  Accordingly, we affirm.

Case No. 19-0001:  In the Interest of T.M., Minor Child

Filed Mar 06, 2019

View Opinion No. 19-0001

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

            A father appeals a juvenile court order terminating his parental rights.  OPINION HOLDS: We find the State established a ground for termination by clear and convincing evidence, no exception to termination applies, and termination is in the child’s best interest.

Case No. 19-0006:  In the Interest of B.S., Minor Child

Filed Mar 06, 2019

View Opinion No. 19-0006

            Appeal from the Iowa District Court for Page County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (9 pages)

            A mother appeals the termination of her parental rights in her child.  OPINION HOLDS:  The child could not be returned to the mother’s care at the time of termination.  She did not receive ineffective assistance of counsel because she cannot establish prejudice from the alleged breach.  Her right to equal protection was not violated because she was treated equally to those similarly situated to her.  Termination is in the child’s best interest and the need for removal would likely remain at the end of an additional six-month period.

Case No. 19-0012:  In the Interest of K.W., K.W., and K.W., Minor Children

Filed Mar 06, 2019

View Opinion No. 19-0012

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (4 pages)

            The mother appeals the district court’s ruling denying her motion for a continuance and the district court’s order closing the child-in-need-of-assistance case.  First, the mother argues the district court should have granted her motion to continue.  Second, the mother asserts the district court was required to make a best-interests-of-the-children determination prior to closing the case, and had it made such determination, it would have found closing the case was improper.  OPINION HOLDS: We affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(e). 

Case No. 19-0045:  In the Interest of J.F., Minor Child

Filed Mar 06, 2019

View Opinion No. 19-0045

            Appeal from the Iowa District Court for Humboldt County, Angela L. Doyle, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS: We find the termination of the mother’s parental rights is supported by clear and convincing evidence, no exception to termination should be applied, it would not be in the child’s best interests to give the mother additional time, and the State did not fail to engage in reasonable efforts.  We affirm the decision of the juvenile court.

Case No. 19-0107:  In the Interest of S.L., Minor Child

Filed Mar 06, 2019

View Opinion No. 19-0107

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

            A father appeals the termination of his parental rights in his child.  OPINION HOLDS: There is sufficient evidence supporting the statutory grounds authorizing the termination of his parental rights.  Termination of his parental rights is in the child’s best interest.  The parent-child bond does not preclude termination.  The father should not be granted an additional six months to work toward reunification.

Case No. 19-0111:  In the Interest of N.R., Minor Child

Filed Mar 06, 2019

View Opinion No. 19-0111

            Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, 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 child.  OPINION HOLDS: Because returning the child to the mother’s care would place the child at risk of an adjudicatory harm, the grounds for termination pursuant to Iowa Code section 232.116(1)(h) (2017) have been proved by clear and convincing evidence.  We decline to grant the mother an additional six months to have the child returned to her care.

Case No. 17-0233:  State of Iowa v. Michael John Opperud

Filed Feb 20, 2019

View Opinion No. 17-0233

            Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Blane, S.J.  Opinion by Tabor, P.J.  (6 pages)

            The defendant agreed to pay restitution at the rate of fifty dollars a month after pleading guilty to theft in the first degree.  But two years later, facing serious health issues, he petitioned the district court to find he did not have the ability to pay the remaining balance.  The court found it had no authority to grant such relief.  OPINION HOLDS: The district court decision is correct.  Despite the change in the defendant’s circumstances, the court is without authority to grant him the relief he seeks—eliminating his entire obligation to pay restitution including victim restitution, court costs, and attorney fees.  The defendant did not unbundle the courts costs and attorney fees from the victim restitution, and it was not an abuse of discretion for the court to deny the general request to eliminate restitution altogether. 

Case No. 17-0529:  Jeremy Joseph Saul v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-0529

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Carr, S.J.  Opinion by Mullins, P.J.  (4 pages)

            Jeremy Saul appeals the summary disposition of his application for postconviction relief.  OPINION HOLDS: We affirm the summary disposition of Saul’s application for postconviction relief.

Case No. 17-1140:  Matthew Alan Leonard v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-1140

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Matthew Leonard appeals the denial of his application for postconviction relief.  He asserts he did not understand the consequences of his guilty plea.  OPINION HOLDS: We give weight to the postconviction court’s finding that Leonard lacked credibility, and his recorded colloquies with the district court prior to entering his plea show the court informed him of—and he acknowledged understanding—the consequences of pleading guilty.  Therefore, he has not shown ineffective assistance of counsel.

Case No. 17-1245:  Gene Duwayne Cook, Jr. v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-1245

            Appeal from the Iowa District Court for Polk County, William Patrick Kelly, Judge.  AFFIRMED.  Considered by Bower, P.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J.  (9 pages)

            Gene Cook Jr. appeals from the district court’s denial of his application for postconviction relief.  He argues his sentence is cruel and unusual due to gross disproportionality and his age, and he asserts his other claims are not time-barred under recent precedent.  OPINION HOLDS: We find his sentence is constitutional and his other claims are time-barred even considering recent precedent.  Therefore, we affirm.

Case No. 17-1382:  State of Iowa v. Ciera Shanae Bolden

Filed Feb 20, 2019

View Opinion No. 17-1382

            Appeal from the Iowa District Court for Warren County, Mark F. Schlenker, District Associate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Doyle, J.  (7 pages)

            Ciera Bolden appeals her conviction for one count of second-degree harassment.  OPINION HOLDS: The evidence is insufficient to support a finding that Bolden intended to communicate to the alleged target of her harassment in her email to a third party.  Accordingly, we reverse and remand for entry of a judgment of acquittal.

Case No. 17-1681:  Bruce Spahr v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-1681

            Appeal from the Iowa District Court for Mahaska County, Randy S. DeGeest, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.  Opinion by Doyle, J.  (9 pages)

            Bruce Spahr appeals the order denying his application for postconviction relief (PCR), challenging his conviction for second-degree sexual abuse.  He asserts claims of ineffective assistance of his trial, appellate, and PCR counsel.  OPINION HOLDS: Spahr’s trial counsel breached a duty in failing to object to testimony that impermissibly bolstered the credibility of the complaining witness.  Because witness credibility played an integral part in the jury’s decision-making, the impermissible testimony undermines confidence in the jury’s verdict.  Spahr has demonstrated ineffective assistance of trial counsel.  Accordingly, we reverse the district court’s judgment, remand for entry of an order vacating Spahr’s conviction and sentence, and grant him a new trial.

Case No. 17-1690:  Quality Egg, LLC v. Hickman's Egg Ranch, Inc.

Filed Feb 20, 2019

View Opinion No. 17-1690

            Appeal from the Iowa District Court for Wright County, Christopher C. Foy, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Vogel, C.J.  (9 pages)

            In 2002, Quality Egg, LLC (Quality Egg), entered into an oral contract with Hickman’s Egg Ranch, Inc. (Hickman’s) to sell eggs.  In April 2008, Quality Egg received a check from Hickman’s that it determined was “short pay.”  In March 2014, Quality Egg brought suit against Hickman’s, asserting Hickman’s was due and owing upon an open account.  Hickman’s responded by asserting various defenses.  After a 2017 trial, the jury returned a verdict against Quality Egg’s claim, and Quality Egg appeals.  OPINION HOLDS: We conclude the jury instructions were insufficient.  Because Quality Egg pled and presented its case-in-chief seeking a judgment on an open account, the lack of instructions to the jury on this claim is reversible error.  Therefore, we reverse and remand for a new trial limited to Quality Egg’s open-account claim.

Case No. 17-1768:  State of Iowa v. Hector Martinez Lobo

Filed Feb 20, 2019

View Opinion No. 17-1768

            Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  Dissent by Tabor, P.J.  (18 pages)

            Hector Martinez Lobo appeals his conviction for driving while intoxicated, claiming the district court should not have denied his motion to suppress evidence obtained during the investigatory stop of his vehicle.  OPINION HOLDS: We find the traffic stop was proper on the basis the officer had reasonable suspicion criminal activity was afoot.  We determine the district court properly denied defendant’s motion to suppress.  We affirm Martinez Lobo’s conviction for operating while intoxicated.  DISSENT ASSERTS: I respectfully dissent.  The State’s evidence did not support a finding of either probable cause or reasonable suspicion to pull over the Camaro.  The district court should have granted Martinez Lobo’s motion to suppress the evidence gathered after an impermissible traffic stop.

Case No. 17-1769:  Leroy Dean Haines v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-1769

            Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            LeRoy Haines appeals the denial of his second application for postconviction relief (PCR) following his convictions for two counts of sexual abuse in the second degree.  As he did at his PCR trial, he maintains the State committed a Brady violation by failing to disclose exculpatory evidence and statements made by one of the complaining witnesses during the course of the underlying proceedings and that the nondisclosure prejudiced him.  OPINION HOLDS: The evidence Haines’s claim relies upon meets the ground-of-fact exception and survives the statute of limitations, so we reach merits of Haines’s claim.  However, we agree with the PCR court that Haines cannot establish a Brady violation.  We affirm. 

Case No. 17-1896:  Dominic Clester v. State of Iowa

Filed Feb 20, 2019

View Opinion No. 17-1896

            Appeal from the Iowa District Court for Muscatine County, Mark J. Smith, Judge.  REVERSED AND REMANDED. Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (10 pages)

            Dominic Clester appeals the district court’s dismissal of his application for postconviction relief as a discovery sanction after his appointed postconviction counsel failed to comply with the court’s order to compel discovery responses.  OPINION HOLDS: Because the district court made no finding of willfulness, bad faith, or fault, and did not consider the propriety of lesser sanctions, we find the court abused its discretion in dismissing Clester’s postconviction-relief application as a discovery sanction.

Case No. 17-1944:  State of Iowa v. Randall John Clemens

Filed Feb 20, 2019

View Opinion No. 17-1944

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED. Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (4 pages)

            Randall Clemens appeals from his convictions for domestic abuse assault by strangulation, second-degree harassment, and interference with official acts causing bodily injury.  He asserts the trial court erred in admitting the recording of a 911 call.  OPINION HOLDS: We find no error in the court’s ruling that the recording was admissible under the present-sense-impression exception to the hearsay rule. 

Case No. 17-2003:  State of Iowa v. Tracy Adam Thompson

Filed Feb 20, 2019

View Opinion No. 17-2003

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vogel, C.J.  (6 pages)

            Tracy Adam Thompson appeals his convictions and sentence for public intoxication, third offense; two counts of assault on persons in certain occupations; and interference with official acts.  Thompson argues the district court abused its discretion by “suggesting” or “pronouncing” the maximum sentence before trial and for considering Thompson’s refusal to plead guilty as a factor in sentencing.  OPINION HOLDS: We find the district court did not abuse its discretion by advising Thompson of the maximum sentence and did not consider impermissible factors when sentencing.

Case No. 17-2021:  June E. King v. Richard W. King

Filed Feb 20, 2019

View Opinion No. 17-2021

            Appeal from the Iowa District Court for Mitchell County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Richard King appeals the entry of a domestic abuse protective order pursuant to Iowa Code section 236.5 (2017).  He contends the district court erred in finding by a preponderance of the evidence he committed domestic abuse assault against his wife, June King.  He also contends the district court erred in granting June exclusive possession of the marital home and ordering him to relinquish his firearms.  OPINION HOLDS: On de novo review, we conclude the preponderance of evidence in the record supported the finding Richard committed domestic abuse assault against June, warranting a chapter 236 protective order.  We further find the equities in the case pointed toward granting the marital home to June exclusively.  Finally, as the subject of a chapter 236 protective order, it is unlawful for Richard to possess firearms.  We affirm the court’s findings and ordered provisions. 

Case No. 18-0038:  State of Iowa v. Dreasean Maurice Barber

Filed Feb 20, 2019

View Opinion No. 18-0038

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (21 pages)

            Dresean Barber appeals his convictions to one count of second-degree murder and one count of assault with intent to inflict serious injury.  Barber challenges the district court’s denial of his request to present a defense based upon a statute amended after he was arrested and charged.  He also challenges the court’s denial of his motion for mistrial or alternatively its refusal to voir dire the jury after a mass shooting occurred in Las Vegas during jury deliberations.  Barber further contends the court abused its discretion in failing to clear the jury’s confusion on malice aforethought.  Barber also claims the prosecutor’s questioning during cross-examination constituted prosecutorial misconduct.  Lastly, Barber contends the jury’s verdicts were not supported by substantial evidence.  OPINION HOLDS:  The 2017 amendments to the justification defense at issue in this case were prospective, not retrospective, as the statutes were expressly made retrospective and were substantive in nature.  As such, Barber was not entitled to argue or have the court instruct the jury based upon the amendments to the Iowa Code.  Barber was still allowed to assert and argue a justification defense as defined by statute prior to the 2017 amendments, and the jury instructions properly informed the jury of the law on justification in effect at the time of the shooting.  We find the district court did not abuse its discretion in refusing to poll the jury or grant a mistrial based upon the Las Vegas shooting.  The district court also did not abuse its discretion when responding to the jury’s question with directions to reread the instructions.  We find no prosecutorial misconduct.  Finally, we find the verdicts are supported by substantial evidence.

Case No. 18-0075:  State of Iowa v. Brandon Sebastian Reed

Filed Feb 20, 2019

View Opinion No. 18-0075

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Brandon Reed appeals his convictions and sentence for one count of indecent contact with a child and two counts of third-degree sexual abuse.  He asserts the jury’s guilty verdicts were not supported by sufficient evidence.  Additionally, he raises multiple ineffective-assistance-of-counsel claims.  OPINION HOLDS: We conclude sufficient evidence supports all the verdicts and counsel was not ineffective by failing to object to a jury instruction allowing the jury to consider out-of-court statements made by Reed as if they were made at trial.  Additionally, we preserve the other three issues of ineffective assistance of counsel for possible postconviction relief.

Case No. 18-0103:  State of Iowa v. Dallas Edward Forkner

Filed Feb 20, 2019

View Opinion No. 18-0103

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Dallas Forkner appeals his convictions on two counts of possession of methamphetamine with intent to deliver, second offense.  OPINION HOLDS:  We find Forkner failed to preserve error because he did not object to the statement in the presentence investigation report concerning risk assessments at the sentencing hearing.  We affirm his convictions.

Case No. 18-0159:  State of Iowa v. Kevin Jacob Muehlenthaler

Filed Feb 20, 2019

View Opinion No. 18-0159

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (23 pages)

            Kevin Muehlenthaler appeals his convictions of three counts of sexual exploitation by a school employee.  Muehlenthaler contends his trial counsel was ineffective in failing to object to: (1) the State’s misstatement to the jury about Muehlenthaler’s plea; (2) testimony about Muehlenthaler’s alleged use of racially insensitive comments; (3) the State’s questions which amounted to backdoor hearsay; (4) expert testimony provided by a non-expert; (5) the State’s violation of its own motion in limine; and (6) the State’s statements on Muehlenthaler’s failure to testify or produce evidence.  Muehlenthaler also claims the trial court erred in admitting into evidence statements he made during a school investigation, in violation of Garrity v. New Jersey, 385 U.S. 493 (1967).  OPINION HOLDS: We find two of Muehlenthaler’s four claims were not impermissible backdoor hearsay therefore defense counsel was not ineffective for failing to object.  We also find the State was entitled to redirect examination of a police detective on DNA evidence and the examination was properly within the scope of the defense’s cross-examination.  Further, to the extent her testimony might be considered expert testimony, it was based on her training and experience and was limited in scope, therefore defense counsel was not ineffective for failing to challenge expert testimony.  We also find the State’s statements did not shift the burden of proof to Muehlenthaler or refer to his decision not to testify, therefore his trial counsel was not ineffective for failing to object.  We preserve the remainder of Muehlenthaler’s claims of ineffective assistance of counsel as we find the record inadequate to address the issues.  We find no Garrity violation.

Case No. 18-0299:  State of Iowa v. Kristen Frances Harriman

Filed Feb 20, 2019

View Opinion No. 18-0299

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Robert B. Hanson, and Heather L. Lauber, Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Kristen Harriman appeals her convictions for second-degree theft and third-degree theft claiming counsel was ineffective for permitting her to plead guilty without a sufficient factual basis.  OPINION HOLDS: We find sufficient factual basis existed for Harriman’s Alford pleas and counsel did not provide ineffective assistance.

Case No. 18-0398:  State of Iowa v. Andrew Rudolph Wulf

Filed Feb 20, 2019

View Opinion No. 18-0398

            Appeal from the Iowa District Court for Davis County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J. (13 pages)

            Andrew Wulf appeals his convictions for ongoing criminal conduct and two counts of second-degree theft.  OPINION HOLDS:  We find there is sufficient evidence in the record to support Wulf’s convictions.  Wulf did not preserve error on his hearsay claims.  We determine he has not shown he received ineffective assistance on his claims defense counsel should have further challenged the sufficiency of the evidence or objected to alleged hearsay evidence.  We preserve for possible postconviction relief two other claims of ineffective assistance.  We affirm Wulf’s convictions.

Case No. 18-0491:  In re the Marriage of Cavalier

Filed Feb 20, 2019

View Opinion No. 18-0491

            Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Scott, S.J.  Opinion by Vogel, C.J.  (5 pages)

            Aaron Cavalier appeals from the district court’s order modifying physical care of K.C., his child with Kalli Cavalier, now known as Kalli Terrell.  He argues the district court abused its discretion by denying his motion to continue and it should not have changed physical care of K.C. to Kalli.  Kalli requests appellate attorney fees.  OPINION HOLDS: We find no abuse of discretion and we decline to interfere with the modification or award attorney fees.

Case No. 18-0525:  In re the Marriage of Curtis

Filed Feb 20, 2019

View Opinion No. 18-0525

            Appeal from the Iowa District Court for Scott County, Patrick McElyea, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Ross Curtis appeals the district court order denying his petition to modify his spousal support obligation of $1000.00 per month to his former wife, Cynthia.  He asserts there has been a substantial change in circumstances and he is no longer able to pay the spousal support due to a change in his employment and his “greatly reduced” income.  OPINION HOLDS: Ross has not shown a substantial change in circumstances.  Deferring to the credibility determinations of the district court, we find his earning capacity has not been reduced so as to constitute a substantial change in circumstances.  In the meantime, Cynthia’s earning capacity has diminished with her medical condition.  We affirm. 

Case No. 18-0532:  Shelby Boatwright v. Craig Lydolph

Filed Feb 20, 2019

View Opinion No. 18-0532

            Appeal from the Iowa District Court for Van Buren County, Myron L. Gookin, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A father appeals the decree establishing physical care, custody, and support of his child.  OPINION HOLDS: We affirm the district court’s decree, finding the court’s well-reasoned ruling to be equitable and in the child’s best interest.

Case No. 18-0673:  State of Iowa v. Dean William Dempster, III.

Filed Feb 20, 2019

View Opinion No. 18-0673

            Appeal from the Iowa District Court for Delaware County, Monica Zrinyi Wittig, Judge.  REVERSED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (7 pages)

Dean William Dempster III appeals the modification of his victim restitution order, raising claims of improper jurisdiction and res judicata.  OPINION HOLDS: We reverse the order granting the application to amend the original order.  The effect of our opinion in this appeal, together with our opinion in the prior appeal, is to render the July 12, 2016 order the final pronouncement on the offset of payments against Dempster’s restitution obligation.

Case No. 18-0703:  In re the Marriage of Cornish

Filed Feb 20, 2019

View Opinion No. 18-0703

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Doyle, J.  (6 pages)

            Shpresa Thaqi-Cornish appeals the child-custody provisions of the decree dissolving her marriage to Richard Cornish and the district court’s award of trial attorney fees.  OPINION HOLDS: Although the parties have difficulties with their cooperation and communication, they are able to work together for the child’s benefit.  Because the evidence shows the child is doing well under a joint-physical-care arrangement and granting one parent physical care would be contrary to the child’s best interests, we affirm the joint-physical-care arrangement.  We find the district court did not abuse its discretion in awarding Shpresa only $1000 of her trial attorney fees, and we decline to award either party appellate attorney fees.

Case No. 18-0783:  In re the Marriage of Stice

Filed Feb 20, 2019

View Opinion No. 18-0783

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

            Christina appeals the modification of a dissolution decree.  The modification transferred physical care of her seven-year-old daughter G.S. from Christina to G.S.’s father, Joshua.  Christina contends Joshua did not show a substantial change in circumstances or that he would provide superior care.  OPINION HOLDS: Joshua showed both a substantial change in circumstances and that he would provide superior care.  Christina has engaged in a course of conduct substantially interfering with Joshua’s relationship with G.S. by denying him visitation and failing to communicate effectively about her schooling and medical needs.  We find Joshua has shown he can provide superior care and support G.S.’s relationship with Christina.  We affirm the modification. 

Case No. 18-0801:  John William Anderson v. University of Iowa and Board of Regents, State of Iowa

Filed Feb 20, 2019

View Opinion No. 18-0801

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED. Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (2 pages)

            John Anderson appeals the grant of summary judgment in favor of defendants.  OPINION HOLDS: Anderson’s present suit involves the same parties and same claims as the Johnson County lawsuit he previously litigated and lost.  His present suit is barred by the doctrine of res judicata and we therefore affirm the district court’s grant of summary judgment in favor of the defendants.     

Case No. 18-0827:  David Charles Arch v. Jared Michael White

Filed Feb 20, 2019

View Opinion No. 18-0827

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (8 pages)

                David Arch appeals the district court’s order granting Jared White’s motion to enforce the settlement agreement.  OPINION HOLDS: Because the parties entered a valid and enforceable settlement agreement and there was no material breach of the agreement, we affirm the decision of the district court. 

Case No. 18-0953:  State of Iowa v. Shaquille Trashaun Wade

Filed Feb 20, 2019

View Opinion No. 18-0953

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison and Jeffrey D. Farrell, Judges.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            Shaquille Trashaun Wade asks us to find the district court abused its discretion in sentencing him to five years in prison, after Wade pled guilty to failure to appear, a class “D” felony, in violation of Iowa Code section 811.2 (2017).  The State asserts the district court “balanced the positive aspects of Wade’s life with his persistent failures at probation.”  OPINION HOLDS: We find the district court did not abuse its discretion and affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (d), and (e).

Case No. 18-1132:  State of Iowa v. Jason D. Gryp

Filed Feb 20, 2019

View Opinion No. 18-1132

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel and Mark D. Cleve, Judges.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (4 pages)

            Jason Gryp appeals the district court’s imposition of a ten-year sentence of incarceration for his conviction for possession with intent to deliver (methamphetamine), a class “C” felony.  Gryp maintains the court should have suspended his sentence, arguing the court abused its discretion by failing to place more weight on positive factors outlined in the report from the presentence investigation and failing to consider the “naturally deterrent effect” of the fact that, during the commission of this crime, Gryp was shot multiple times by the friend to whom he intended to sell methamphetamine.  OPINION HOLDS: It is the role of the sentencing court, in an exercise of its discretion, to determine the weight to place on the various considerations.  The court did not abuse its discretion in imposing a term of incarceration.  We affirm.

Case No. 18-1187:  In the Interest of K.G. and H.S., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-1187

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the juvenile court’s order.

Case No. 18-1368:  In the Matter of the Guardianship and Conservatorship of Diana Hanken

Filed Feb 20, 2019

View Opinion No. 18-1368

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Diana Hanken challenges the denial of her request to execute a new will.  OPINION HOLDS: We conclude Hanken did not overcome the presumption of testamentary incapacity.  We affirm the district court’s denial of Hanken’s request to make a new will.

Case No. 18-1409:  In the Interest of R.W. and X.W., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-1409

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (4 pages)

            The father appeals the termination of his parental rights to R.W., born in March 2016, and X.W., born in January 2017.  He argues the district court should not have found immediate termination of his parental rights was in the best interests of the children while granting an additional six months for the mother to work toward reunification.  Moreover, he posits a higher standard should be imposed when determining the best interests of the children when termination is only of one parent’s parental rights.  OPINION HOLDS: We conclude termination of the father’s parental rights is in the best interests of the children and an additional six months would not extinguish the need for removal.

Case No. 18-1439:  In the Interest of I.G., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1439

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Both parents appeal the termination of their parental rights, contending it is the child’s best interests to allow them a third extension of time to seek reunification.  OPINION HOLDS: Because grounds for termination exist and yet another extension is not in the child’s best interests, we affirm on both appeals.

Case No. 18-1617:  In the Interest of D.E., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1617

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (9 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: 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) (2018) and termination of the mother’s parental rights is in the child’s best interests.  We find no reason to disturb the juvenile court’s finding that none of the exceptions to termination found in section 232.116(3) apply here, and we agree the DHS provided reasonable services for reunification.  We therefore affirm the juvenile court’s order terminating the mother’s parental rights.

Case No. 18-1734:  In the Interest of M.K., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1734

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (8 pages)

            A father appeals the juvenile court’s termination of his parental rights, arguing the State did not present clear and convincing proof the child could not safely be returned to his care, the State failed to make reasonable efforts toward reunification, and termination was not in the child’s best interests.  OPINION HOLDS: Because we agree with the district court the State demonstrated continuing safety concerns should the child be placed with the father and the closeness of the relationship does not weigh against termination, and because the father did not preserve a reasonable-efforts argument, we affirm the juvenile court’s termination of parental rights.

Case No. 18-1779:  In the Interest of E.L., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1779

            Appeal from the Iowa District Court for Union County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            A mother appeals the termination of her parental rights to her child, contending the State failed to prove the grounds for termination cited by the district court.  OPINION HOLDS: We conclude the child could not be returned to the mother’s custody at the time of the termination hearing.  We affirm the termination of her parental rights pursuant to Iowa Code section 232.116(1)(h) (2018).

Case No. 18-1784:  In the Interest of C.K., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1784

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  Dissent by McDonald, J.  Tabor, J., takes no part.  (8 pages)

            A father appeals the termination of his parental rights to his minor child.  OPINION HOLDS: We find the State proved the statutory ground for termination by clear and convincing evidence, termination is in the best interests of the child, and the father failed to meet his burden to prove a statutory exception to termination.  We affirm the termination of the father’s parental rights.  DISSENT ASSERTS:  I respectfully dissent.  As the juvenile court noted in the termination order, “This case is a close call.”  I agree.  But the State is tasked with proving its case by clear and convincing evidence.  Clear and convincing evidence “is the highest evidentiary burden in civil cases.  It means there must be no serious or substantial doubt about the correctness of a particular conclusion drawn from the evidence.”  In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016).  “This significant burden is imposed on the State to minimize the risk of an erroneous deprivation of the parent’s fundamental liberty interest in raising his child.”  Id.  In my view, when the evidence is in equipoise, as it is here, the tie goes to the parent.  I would reverse the order terminating parental rights.

Case No. 18-1865:  In the Interest of U.W., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1865

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (5 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: Grounds for termination of parental rights exist and the child’s need for stability and security will be best achieved by terminating the father’s parental rights. 

Case No. 18-1908:  In the Interest of D.G., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-1908

            Appeal from the Iowa District Court for Jackson County, Phillip J. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  Tabor, J., takes no part.  (10 pages)

            A mother and father separately appeal the termination of their parental rights to their child, born in 2014.  The mother argues termination of her rights is not in the child’s best interests and the statutory exception to termination contained in Iowa Code section 232.116(3)(a) (2018) should be applied or a guardianship should be established with a maternal great-aunt.  The father challenges the sufficiency of the evidence concerning the statutory ground for termination cited by the juvenile court, echoes the mother’s claims concerning the statutory exception to termination and establishment of a guardianship, and argues he should have been granted an additional six months to work toward reunification.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 18-1922:  In the Interest of J.R., D.R., and H.R., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-1922

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

            A father appeals a permanency order placing his two children in a guardianship, raising claims of ineffective assistance of counsel and a lack of clear and convincing evidence in the record to support the ruling.  Additionally, he alleges the district court erred by prematurely entering its dispositional order and also by denying his motion to enlarge and amend its findings and conclusions.  OPINION HOLDS: On our de novo review, we conclude the district court appropriately transferred guardianship and custody of the children to the relative.  The father failed to appeal the dispositional order and thereby waived any claim of error.  To the extent the father’s motion to enlarge addressed issues not raised on appeal, those issues have also been waived.  As to the ineffective-assistance claim, the father cannot prove prejudice.

Case No. 18-1981:  In the Interest of Z.P., R.M., J.M., and I.M., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-1981

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (13 pages)

            A mother and a father separately appeal from the termination of their parental rights to four children.  OPINION HOLDS: The mother argues the court erred in terminating the father’s parental rights.  She has no standing to assert the father’s rights.  The father argues that termination under Iowa Code section 232.116(1)(g) (2018) is not proper here.  We disagree.  The father’s rights to another child in the same household were terminated in 2015, these children have been adjudicated children in need of assistance, the father has been offered numerous services for more than three years, and he continues to be unable or unwilling to respond to those services that were provided to correct substance-abuse issues and unstable employment and housing.  A further extension of time is not warranted. 

Case No. 18-2014:  In the Interest of D.L., E.L., and J.L., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-2014

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother appeals the juvenile court’s removal of her children and their adjudication as children in need of assistance (CINA).  OPINION HOLDS:  We find the juvenile court had subject matter jurisdiction to remove the children, who were originally from Texas, under the temporary emergency jurisdiction provision of the Uniform Child-Custody Jurisdiction Enforcement Act (UCCJEA), Iowa Code section 598B.204 (2018), and we affirm the removal of the children.  On the issue of the CINA adjudication and dispositional orders, we reverse the juvenile court and remand for a determination of whether Texas has declined jurisdiction and whether Iowa has become the children’s home state.

Case No. 18-2028:  In the Interest of W.D., A.D., F.D., Z.D., and S.D., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-2028

            Appeal from the Iowa District Court for Winneshiek County, Linnea M. N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (16 pages)

            A father appeals the termination of his parental rights to his five children.  OPINION HOLDS: Upon our de novo review, we conclude termination of the father’s parental rights is in the children’s best interests and none of the circumstances set forth in section 232.116(3) exist to make that section applicable.  We also believe an order under section 232.100 was not an option under the facts of this case, but in any event, find no abuse of discretion in the juvenile court’s decision to proceed with termination of the father’s parental rights instead of delaying permanency.  We affirm the juvenile court’s order terminating the father’s parental rights.

Case No. 18-2029:  In the Interest of I.S., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-2029

            Appeal from the Iowa District Court for Louisa County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Bower, JJ.  Opinion by Vogel, C.J.  (4 pages)

            The father of I.S., born 2009, appeals the juvenile court’s permanency order.  OPINION HOLDS: We agree with the juvenile court I.S. could not be placed with the father, and it is in her best interest to maintain her in the care of her great-aunt.  We find no basis to amend the permanency order, which left visitation at the discretion of the Iowa Department of Human Services while directing the opening of a guardianship proceeding.

Case No. 18-2080:  In the Interest of T.S., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-2080

            Appeal from the Iowa District Court for Cass County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (8 pages)

            Malasondra, the paternal grandmother of T.S., appeals the order denying her motion to intervene in the termination-of-parental-rights proceedings.  She contends the juvenile court wrongly denied her motion and wants to be considered as an adoptive home for T.S.  OPINION HOLDS: As the juvenile court previously determined, Malasondra has demonstrated a lack of protective capacity in relation to her son’s sexual abuse of her daughter.  As such, it would be inconsistent with T.S.’s best interests to consider Malasondra a placement for adoption purposes.  Malasondra has not demonstrated an interest in the proceedings, and the court did not err in denying her motion to intervene. 

Case No. 18-2152:  In the Interest of A.C., G.W., and E.G., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-2152

            Appeal from the Iowa District Court for Jefferson County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            A mother and father separately appeal a juvenile court order terminating their parental rights to their children.  OPINION HOLDS: We find the court did not abuse its discretion by not continuing or suspending the termination hearing, a six-month extension is not warranted, and termination is in the children’s best interests.

Case No. 18-2166:  In the Interest of J.K. and M.K., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-2166

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  Tabor, J., takes no part.  (9 pages)

            A mother and father separately challenge the termination of their parental rights to their two children.  OPINION HOLDS: Termination of the father’s parental rights is in the children’s best interests and no statutory exceptions to termination apply.  The mother waived her reasonable-efforts challenge.  We decline to grant the mother’s request for an extension.

Case No. 18-2200:  In the Interest of L.A., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-2200

            Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            A child’s foster family appeals the denial of a temporary injunction regarding the placement of the child with another family.  OPINION HOLDS: The placement of the child is at the Iowa Department of Human Services’ discretion, and the district court did not have a legal basis to issue an injunction.

Case No. 18-2218:  In the Interest of J.W., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-2218

            Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (2 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: The father’s failure to argue on appeal waives error.  Consequently, we affirm the termination of his parental rights. 

Case No. 18-2225:  In the Interest of M.S., M.S., M.S., and M.S., Minor Children

Filed Feb 20, 2019

View Opinion No. 18-2225

            Appeal from the Iowa District Court for Chickasaw County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A father appeals the termination of his parental rights in his four children, arguing termination of the parent-child relationships is not in the children’s best interest.  OPINION HOLDS:  Termination of the father’s rights is in the children’s best interest.

Case No. 18-2226:  In the Interest of C.W., Minor Child

Filed Feb 20, 2019

View Opinion No. 18-2226

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            A father appeals the termination of his parental rights to a child.  OPINION HOLDS: On our de novo review, we conclude the department satisfied its reasonable-efforts mandate.  We affirm the termination of the father’s parental rights pursuant to Iowa Code section 232.116(1)(f) (2018).

Case No. 16-1796:  Maurice Walker v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 16-1796

            Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.  Tabor, J., takes no part.  Opinion by Gamble, S.J.  (5 pages)

            Maurice Walker appeals from the dismissal of his application for postconviction relief (PCR).  On appeal, he raises a new claim and also asserts the PCR court erred in finding his trial counsel was not ineffective.  OPINION HOLDS: The rule announced in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), is not applicable here.  The appellant’s claim concerning the charge of burglary was not preserved for review.  Because we agree with the thorough and well-reasoned findings and conclusions of the PCR court, we affirm.

Case No. 16-2145:  Luann Huss v. The State of Iowa and Iowa State University of Science and Technology

Filed Feb 06, 2019

View Opinion No. 16-2145

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  REVERSED AND REMANDED.  Heard by Mullins, P.J., McDonald, J., and Danilson, S.J.  Opinion by McDonald, J.  (11 pages)

            Defendants, the State of Iowa and Iowa State University, appeal the district court’s entry of judgment notwithstanding the verdict in an employment discrimination case favoring the plaintiff, Luann Huss.  OPINION HOLDS:  When considering the evidence in the light most favorable to the defendants, reasonable minds could differ with regard to whether Huss proved her disability discrimination and failure to accommodate claims.  Because reasonable minds could reach differing conclusions, the district court erred in entering judgment notwithstanding the verdict.  We reverse and remand to reinstate the jury’s verdict.

Case No. 17-0662:  State of Iowa v. Kendu Ray Petties

Filed Feb 06, 2019

View Opinion No. 17-0662

            Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J., Opinion by Danilson, S.J.  (28 pages)

            Kendu Ray Petties appeals following a jury trial from convictions for two counts of murder in the first degree and one count of conspiracy to commit a forcible felony.  Petties first contends the trial court abused its discretion in admitting transcripts of cell phone recordings and shoeprint evidence.  He also asserts his trial counsel was ineffective in a number of respects.  Next, Petties maintains the court erred in denying his motions for judgment of acquittal and for new trial because there is insufficient corroborating accomplice testimony to support the jury’s verdicts and the verdicts are contrary to the weight of the evidence.  Finally, he argues the court failed to determine Petties had the reasonable ability to pay court costs.  OPINION HOLDS: We find no abuse of discretion in the court admitting the transcripts of the cell phone recordings, particularly where the recordings themselves were also admitted.  Nor did the district court abuse its discretion in allowing the shoeprint evidence.  The ineffective-assistance-of-counsel claims fail for lack of prejudice.  We find sufficient evidence corroborating the accomplice testimony, and we conclude the verdicts were supported by substantial evidence and were not contrary to the weight of the evidence.  We affirm the convictions.  The court did not err in imposing court costs.

Case No. 17-0696:  Muhammad Y. Hameed v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-0696

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            Muhammad Hameed appeals from the denial of his application for postconviction relief (PCR), contending his criminal trial counsel was ineffective in (1) failing to pursue missing surveillance video from the club, (2) failing to call several defense witnesses, (3) failing to develop expert testimony regarding the complaining witness’s intoxication, (4) failing to properly emphasize the evidence controverting the complaining witness’s testimony that she had never returned to the club after the sex act in March 2011, and (5) failing to explore Hameed’s claims of retaliatory prosecution.  OPINION HOLDS: Upon our de novo review, we agree with the PCR court’s findings, which are supported by the record, and its reasonable conclusions.  Hameed has failed to establish trial counsel was ineffective.

Case No. 17-1302:  In re the Marriage of Wilson

Filed Feb 06, 2019

View Opinion No. 17-1302

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED AS MODIFIED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            Gabriel Wilson appeals the decree dissolving his marriage to Elizabeth Wilson.  OPINION HOLDS: The district court did not abuse its discretion in denying Gabriel’s motion to reopen the record.  The district court equitably divided the marital property, however, the division is modified to correct a typographical error in the court’s order.  The district court did not err in failing to preserve a separate tort action against Elizabeth.  Elizabeth is not awarded attorney fees.

Case No. 17-1491:  State of Iowa v. Rashawn Lee Jackson

Filed Feb 06, 2019

View Opinion No. 17-1491

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J., but decided by Vogel, C.J., Doyle, J., and Danilson, S.J.  Vaitheswaran, J., takes no part.  Opinion by Vogel, C.J.  (9 pages)

            Rashawn Jackson appeals his convictions and sentence after a jury found him guilty of assault and assault causing bodily injury.  He argues (1) his trial attorney failed to provide effective assistance of counsel when she neglected to object to both the district court and the county prosecutor referring to the complaining witness as “the victim,” (2) the racial composition of Jackson’s jury pool violated his constitutional right to an impartial jury, and (3) the district court erred by overruling Jackson’s motion for a directed verdict.  OPINION HOLDS: We conclude trial counsel was not ineffective because Jackson cannot establish prejudice.  Additionally, Jackson did not preserve error on his claim of a systematic exclustion or substantial underrepresentation in the jury pool when he was offered, but failed to use, pertinent records to attempt to establish his claim. Finally, Jackson’s sufficiency claim is moot given the jury’s determination of guilt on a lesser-included offense that did not include the disputed element. 

Case No. 17-1548:  In re the Marriage of Drenter

Filed Feb 06, 2019

View Opinion No. 17-1548

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by McDonald, J.  (12 pages)

            John and Bridget Drenter both appeal the decree dissolving their marriage.  OPINION HOLDS: The district court’s division of assets was inequitable.  The amount and duration of the district court’s award of spousal support was inequitable.  Bridget is granted reasonable attorney fees, the amount of which shall be decided on remand.

Case No. 17-1603:  Mario A. McCullum v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-1603

            Appeal from the Iowa District Court for Dubuque County, Margaret L. Lingreen, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Danilson, S.J., and Scott, S.J.  Opinion by Danilson, S.J.  (7 pages)

            Mario McCullum challenges the summary dismissal of his second application for post-conviction relief (PCR), contending counsel was ineffective in properly presenting his claims of ineffective assistance of trial counsel.  OPINION HOLDS: In light of recent case law, as well as the PCR court’s acknowledgement that McCullum’s claim is not the same as previously raised and the caution with which summary dismissals are to be granted, we conclude the district court erred in summarily dismissing McCullum’s PCR application.  We remand for further proceedings.

Case No. 17-1764:  State of Iowa v. Jeffrey Michael Moeller

Filed Feb 06, 2019

View Opinion No. 17-1764

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Jeffrey Moeller appeals his conviction for operating while intoxicated, third offense, claiming the court abused its discretion by allowing a State witness to improperly offer an opinion on Moeller’s intoxication and insufficient evidence supported the jury’s verdict.  OPINION HOLDS: We find the court did not abuse its discretion in allowing the witness to testify and substantial evidence supports the jury’s verdict.

Case No. 17-1787:  Eddie Charles Risdal v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-1787

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Eddie Risdal appeals the order dismissing his application for postconviction relief.  Risdal did not file his application within the three-year statute of limitations as provided in Iowa Code section 822.3 (2017).  He contends the statute-of-limitations bar does not apply because of newly discovered evidence.  OPINION HOLDS: We affirm the decision of the district court. 

Case No. 17-1797:  Calvin Orlando Hoskins v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-1797

            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 Mullins, J.  (6 pages)

            Calvin Hoskins appeals the denial of his application for postconviction relief (PCR).  He contends: (1) the district court erred in denying relief on his claim the State committed a Brady violation in conjunction with his prosecution and (2) his PCR counsel was ineffective in not arguing his trial attorney rendered ineffective assistance in not moving to suppress evidence obtained as a result of a warrantless search of his person.  OPINION HOLDS: We conclude Hoskins failed to preserve error on his Brady claim or, alternatively, he failed to meet his burden.  We find the record inadequate to consider the ineffective-assistance claim as to PCR counsel.  We affirm the denial of Hoskins’s PCR application, but preserve his ineffective-assistance claim for a possible successive proceeding. 

Case No. 17-1822:  State of Iowa v. Justin Cole Moore

Filed Feb 06, 2019

View Opinion No. 17-1822

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

            Justin Cole Moore appeals his conviction and sentence for the crime of child endangerment resulting in serious injury, in violation of Iowa Code sections 726.6(1)(a) and 726.6(5) (2016).  Moore asserts he received ineffective assistance of counsel because his counsel failed to object to a jury instruction addressing his out-of-court statements and did not request an instruction defining “reasonable degree of medical certainty.”  Also, Moore argues restitution should be removed from his written sentencing order and the district court failed to assess his ability to pay.  OPINION HOLDS: We find Moore has not established he received ineffective assistance of counsel and his restitution claims are better addressed under the remedies of Iowa Code section 910.7.

Case No. 17-1960:  Brett Weichers v. Monkey, Inc., d/b/a Tony's La Pizzeria

Filed Feb 06, 2019

View Opinion No. 17-1960

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Doyle, J.  (10 pages)

            In this interlocutory appeal, Monkey, Inc., d/b/a Tony’s La Pizzeria (“Tony’s”), challenges the district court’s denial of its motion for summary judgment, arguing there is no genuine issue of material fact that plaintiff Brett Weichers failed to notify the dram shop of his claim within six months as required by Iowa Code section 123.93 (2015) and Weichers failed to produce any evidence that he qualified for any of the exceptions to the notice requirement under that section.  OPINION HOLDS: Upon our review, we conclude Weichers did not comply with the statutory notice provision and the “reasonable diligence” basis for extending the statutory deadline was inapplicable.  We reverse and remand for entry of summary judgment in favor of Tony’s.  DISSENT ASSERTS: I respectfully dissent.  Under the facts presented, I agree with the district court’s conclusion that “a question of fact exists for the jury’s determination relative to the diligence exercised by the plaintiff in discovering the dram shop action against Defendant Tony’s.”  I would affirm the district court’s denial of the motion for summary judgment.

Case No. 17-1969:  Ronald Lee Valla v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-1969

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (6 pages)

            Ronald Valla appeals the denial of his application for postconvicton relief (PCR).  He argues his PCR counsel rendered ineffective assistance to the level of structural error in prosecuting his claim that his plea counsel rendered ineffective assistance in allowing him to plead guilty while suffering from a mental impairment.  OPINION HOLDS: we find no reasonable probability that, but for PCR counsel’s alleged errors, the result of the PCR proceedings would have been different.  We affirm the denial of Valla’s PCR application.

Case No. 17-1979:  33 Carpenters Construction, Inc. v. The Cincinnati Insurance Company

Filed Feb 06, 2019

View Opinion No. 17-1979

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (11 pages)

            33 Carpenters Construction, Inc. appeals an order granting summary judgment in favor of The Cincinnati Insurance Company on its claim of breach of contract.  Cincinnati cross-appeals the court’s denial to remove the case from the expedited civil action process.  OPINION HOLDS: We find there is no genuine issue of fact that 33 Carpenters acted as a public adjuster without the proper licensure in connection with an assignment it obtained from a homeowner in relation to an insurance claim.  As such, the assignment between 33 Carpenters and the homeowner is unenforceable and Cincinnati is entitled to judgment as a matter of law.  We need not address Cincinnati’s cross-appeal.

Case No. 17-1988:  State of Iowa v. Andre Lesure Johnson

Filed Feb 06, 2019

View Opinion No. 17-1988

            Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (11 pages)

            Andre Johnson appeals his conviction and sentence for first-degree burglary.  He alleges several instances of ineffective assistance, claims the district court erred in denying his motion for new trial, requests resentencing due to alleged defects in the sentencing procedure, and claims his sentence amounts to cruel and unusual punishment.  OPINION HOLDS:  Because the State provided overwhelming evidence of Johnson’s guilt, Johnson cannot establish the necessary resulting prejudice from any instance of ineffective assistance—individually or cumulatively.  The court applied the correct standard and did not abuse its discretion when denying the motion for new trial.  There was no defect in Johnson’s sentencing requiring resentencing, and his sentence was not cruel and unusual.

Case No. 17-1998:  Joshua James Mullen v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 17-1998

            Appeal from the Iowa District Court for Cass County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            Joshua Mullen appeals the denial of his application for postconviction relief (PCR).  He contends the district court erred in denying him relief on his claims his trial counsel rendered ineffective assistance in (1) failing to withdraw due to a conflict of interest and (2) allowing him to plead guilty.  OPINION HOLDS: We conclude Mullen failed to preserve error on his claim counsel was ineffective in failing to withdraw in light of a conflict of interest.  To the extent he raises a claim of structural error as to PCR counsel, his argument is insufficient to facilitate our review, and we do not consider it.  Mullen may challenge the effectiveness of PCR counsel if he files another PCR application promptly after the issuance of procedendo.  We affirm the denial of relief on Mullen’s plea-related claims.

Case No. 17-2009:  Standard Water Control Systems, Inc. v. Michael D. Jones and Cori Jones

Filed Feb 06, 2019

View Opinion No. 17-2009

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            In an action by Standard Water Control Systems, Inc. to enforce a judgment arising from a mechanic’s lien, Michael and Cori Jones appeal the district court’s decision finding they waived their homestead rights.  OPINION HOLDS:  We affirm the district court’s finding Iowa Code section 561.21(3) (2013) does not allow a homestead to be sold to recover attorney fees entered as part of a judgment against a home in an action to foreclose a mechanic’s lien.  We reverse the decision of the district court on the issue of whether the Joneses waived their homestead rights and remand for further proceedings.

Case No. 17-2023:  In re the Marriage of Dorr

Filed Feb 06, 2019

View Opinion No. 17-2023

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Heard by Tabor, P.J., Bower, J., and Mahan, S.J.  Opinion by Bower, J.  (12 pages)

            Linda Dorr appeals the decree dissolving her marriage with Fred Dorr, challenging the spousal support award, the division of property, and the district court’s failure to award attorney fees.  OPINION HOLDS: We affirm the district court’s decree.

Case No. 18-0005:  State of Iowa v. Daniel Lee Shaw

Filed Feb 06, 2019

View Opinion No. 18-0005

            Appeal from the Iowa District Court for Des Moines County, Jennifer S. Bailey, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (2 pages)

            Daniel Shaw appeals his judgment and sentence for carrying weapons, claiming his trial attorney was ineffective.  OPINION HOLDS: We affirm Shaw’s judgment and sentence without prejudice to his right to raise his ineffective-assistance-of-counsel claim in a postconviction-relief application.

Case No. 18-0032:  State of Iowa v. David Paul Pinney

Filed Feb 06, 2019

View Opinion No. 18-0032

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            David Pinney appeals his convictions for two counts of possession of a controlled substance and one count of unlawful possession of a prescription drug.  OPINION HOLDS:  The search of Pinney’s person was a lawful search incident to his arrest for an unrelated offense.  His conviction for unlawful possession of a prescription drug does not merge into one of his convictions for possession of a controlled substance.

Case No. 18-0052:  State of Iowa v. Russell Gentry, Jr.

Filed Feb 06, 2019

View Opinion No. 18-0052

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Russell Gentry Jr. appeals his convictions for possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and driving while barred.  OPINION HOLDS:  We conclude an officer’s observations, both by visual estimation and pacing, support a rational inference Gentry was exceeding the speed limit and this gave the officer probable cause to stop the vehicle.  We affirm the district court’s decision denying Gentry’s motion to suppress.

Case No. 18-0061:  State of Iowa v. Robert William Hampton

Filed Feb 06, 2019

View Opinion No. 18-0061

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  CONVICTION VACATED AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            Robert Hampton appeals his conviction and sentence for possession of methamphetamine.  He challenges the constitutionality of various portions of his traffic stop.  OPINION HOLDS: The traffic stop violated Hampton’s constitutional rights.  Hampton consented to a weapons search, but the search went beyond the scope of a weapons search when the deputy manipulated the contents of Hampton’s pocket and removed an item.  The district court erred in denying a motion to suppress.

Case No. 18-0078:  Ambus Ray Davis, III v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 18-0078

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Ambus Davis appeals the dismissal of his second application for postconviction relief as time barred.  OPINION HOLDS: The district court did not err in summarily dismissing Davis’s second application for postconviction relief.

Case No. 18-0087:  Russell M. Carter v. Iowa Department of Natural Resources

Filed Feb 06, 2019

View Opinion No. 18-0087

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Tabor, P.J., Bower, J., and Carr, S.J.  Opinion by Bower, J.  (13 pages)

            Russell Carter appeals the district court decision on his petition for declaratory judgment finding Iowa Code section 483A.24 (2016) is not unconstitutional.  OPINION HOLDS:  We find Carter, as a nonresident landowner, does not have an inalienable right to hunt antlered deer on his property and the statute does not violate his equal protection rights.  We affirm the district court.

Case No. 18-0152:  Naima Cerwick v. Tyson Fresh Meats, Inc.

Filed Feb 06, 2019

View Opinion No. 18-0152

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (11 pages)

            Naima Cerwick appeals the denial of her petition for judicial review.  OPINION HOLDS: Substantial evidence supports the finding that Cerwick provided an inconsistent history of the fall and resulting injury.  Although a trier of fact might conclude the evolution of Cerwick’s explanation of her fall and injuries was a result of communication difficulties, our task on appeal is not to determine whether the evidence supports a different finding; our task is to determine whether substantial evidence supports the finding actually made.  The arbitration decision sets forth a detailed recitation of the evidence and the weight the deputy afforded it.  Cerwick’s claim that the deputy ignored evidence is unsupported; rather, the weight the deputy afforded the evidence and the conclusions the deputy drew conflicts with Cerwick’s view of the evidence.  Because substantial evidence supports the agency decision, we affirm the district court’s denial of Cerwick’s petition for judicial review.

Case No. 18-0155:  Lime Lounge, LLC and Thunder & Lightning, Inc. v. Zoning Board of Adjustment of the City of Des Moines, Iowa

Filed Feb 06, 2019

View Opinion No. 18-0155

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (22 pages)

            Lime Lounge, LLC, and Thunder & Lightning, Inc. appeal the dismissal of their petition for certiorari issued by the district court in Lime Lounge’s challenge to the revocation of the conditional use permit (CUP) issued by the Zoning Board of Adjustment of the City of Des Moines (Board).  Lime Lounge raises numerous contentions that the Board’s revocation of its CUP was procedurally flawed and illegal and that the district court’s review was in error.  OPINION HOLDS: We have considered each of Lime Lounge’s contentions and find them either without merit or not properly raised.  We affirm.

Case No. 18-0234:  In re the Marriage of Eggeling

Filed Feb 06, 2019

View Opinion No. 18-0234

            Appeal from the Iowa District Court for Crawford County, Jeffrey A. Neary, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A mother appeals from a modification order granting physical care of her two children to their father.  The mother contends the court put too much weight on geography in her move a ninety-minute drive from where the children have grown up.  She also contends the court put too little emphasis on which parent would be the better caregiver.  The father cross-appeals, asserting the mother’s mid-week overnight visit is too taxing on the children.  OPINION HOLDS: The district court appropriately determined which setting is better for the parties who no longer live within a short distance of each other.  We see no reason to disturb the physical and visitation provisions of the modification rulings.  We affirm on both appeals. 

Case No. 18-0273:  State of Iowa v. Centrel Daunta Handy

Filed Feb 06, 2019

View Opinion No. 18-0273

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (2 pages)

            Centrel Handy appeals his conviction for possession of a firearm by a felon, claiming his trial attorney was ineffective.  OPINION HOLDS: We affirm Handy’s judgment and sentence without prejudice to his right to raise his ineffective-assistance-of-counsel claim in a postconviction-relief application.

Case No. 18-0304:  State of Iowa v. Roy Tompkins

Filed Feb 06, 2019

View Opinion No. 18-0304

            Appeal from the Iowa District Court for Jones County, Russell Keast, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  Special Concurrence by McDonald, J.  (7 pages)

            Roy Tompkins appeals the judgment and sentence entered following his plea to one count of operating while intoxicated, second offense.  OPINION HOLDS: Because the statutory provisions requiring substance abuse evaluation, treatment, and a course for drinking drivers is a collateral consequence of Tompkins’s plea, the court’s failure to inform Tompkins of the requirement did not affect the knowing and voluntary nature of his plea, and his counsel did not breach an essential duty in failing to correct the omission.  The record is insufficient to allow us to determine whether counsel’s failure to correct the court’s omission of the maximum possible fine prejudiced Tompkins.  Therefore, we preserve this claim of ineffective assistance for a postconviction proceeding.  SPECIAL CONCURRENCE ASSERTS: I concur in the judgment.  In State v. Carney, 584 N.W.2d 907, 909 (Iowa 1998), the supreme court held license revocation is a collateral consequence of a guilty plea to OWI and the district court had no duty to inform the defendant of the consequence prior to taking the plea.  Carney has since been undermined by State v. Fisher, 877 N.W.2d 676 (Iowa 2016).  In Fisher, the supreme court held that “[b]ecause revocation of the driver’s license of a person convicted of a drug possession offense is mandatory, immediate, and part of the punishment for that offense, the court must inform the defendant of this consequence before accepting his or her plea.”  877 N.W.2d at 683.  The Fisher court distinguished Carney on the ground Fisher involved “revocation of a driver’s license as a mandatory consequence of a drug possession conviction.”  Id. (emphasis in original).  The proposed distinction is immaterial, and the cases are not reconcilable.  Nonetheless, Fisher and Carney remain good law.  I thus concur in the judgment. 

Case No. 18-0308:  In the Matter of the Estate of Henricksen

Filed Feb 06, 2019

View Opinion No. 18-0308

            Appeal from the Iowa District Court for Emmet County, Carl J. Petersen, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (12 pages)

            Jim Henricksen appeals from the district court ruling ordering him to pay unpaid child support and daycare expenses.  Jim contends the district court erred in vacating its prior ruling.  Alternatively, Jim contends he did not receive notice of the amount of alleged arrearages, and thus the court should not have concluded he was barred from contesting the computation of arrearages and interest or from presenting defenses.  Jim contends the court should have applied the law of Oklahoma in computing the amount of arrearages and accrual of interest.  OPINION HOLDS: We conclude Jim’s appeal of the order vacating the previous ruling is timely but without merit.  However, because Jim did not receive notice of the amount of alleged arrearages now claimed by his ex-wife, we conclude it was improper to exclude Jim’s arguments and defenses regarding the actual amount owing.  We reverse and remand so the district court can consider the viability of Jim’s defenses and determine the actual amount owing according to Oklahoma law. 

Case No. 18-0314:  State of Iowa v. Jeff Lee Altmayer

Filed Feb 06, 2019

View Opinion No. 18-0314

            Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (11 pages)

            Jeff Lee Altmayer appeals his convictions for kidnapping in the first degree, sexual abuse in the second degree, and two counts of enticing a child.  He argues his trial counsel was ineffective for failing to object to a jury instruction regarding his out-of-court statements, and the court abused its discretion in admitting other-acts evidence and erred in submitting a jury instruction regarding the complaining witness.  OPINION HOLDS: We find both instructions correctly state the law and did not result in prejudice and the other-acts evidence was proper for proving identity.  Therefore, we affirm.

Case No. 18-0346:  In the Matter of the Virgil De Groote Revocable Trust

Filed Feb 06, 2019

View Opinion No. 18-0346

            Appeal from the Iowa District Court for Franklin County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (10 pages)

            Karen De Groote appeals the district court’s ruling removing her as trustee of her father’s trust and ordering her to pay part of the attorney’s fees of the beneficiaries that filed the petition.  OPINION HOLDS: Because good cause existed to remove Karen as the trustee, and because the court did not abuse its discretion in ordering Karen to pay part of the petitioners-beneficiaries’ attorney fees, we affirm the ruling of the district court in all respects.

Case No. 18-0405:  State of Iowa v. Jahmal Anthony Cavil

Filed Feb 06, 2019

View Opinion No. 18-0405

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            Jahmal Cavil appeals the district court’s imposition of sentence following his guilty plea for possession of a controlled substance (methamphetamine), third offense, and assault while displaying a dangerous weapon.  OPINION HOLDS: The district court did not abuse its discretion in imposing sentence.

Case No. 18-0406:  Andre White v. State of Iowa

Filed Feb 06, 2019

View Opinion No. 18-0406

            Appeal from the Iowa District Court for Johnson County, Sean W. McPartland, Judge.  AFFIRMED. Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Andre White appeals the denial of his application for postconviction relief.  OPINION HOLDS: White’s trial counsel did not provide ineffective assistance by failing to object to alleged hearsay statements or by changing trial strategies after White’s first trial resulted in a hung jury.

Case No. 18-0423:  In re the Marriage of Clayton

Filed Feb 06, 2019

View Opinion No. 18-0423

            Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (2 pages)

            Scott Clayton appeals the district court’s decision to increase his child support obligation.  OPINION HOLDS: Credible evidence supported the district court’s decision to increase Scott’s child support obligation.

Case No. 18-0454:  In re the Marriage of Wood

Filed Feb 06, 2019

View Opinion No. 18-0454

            Appeal from the Iowa District Court for Linn County, Andrew Chappell, Judge.  AFFIRMED AS MODIFIED.  Heard by Tabor, P.J., Bower, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (13 pages)

            Clinton Lunden appeals the physical care, visitation, and child support provisions of the decree dissolving his marriage to Bridgett Wood.  OPINION HOLDS: Upon our review, we affirm as modified to provide Clinton additional visitation during the summer.  We decline to award either party attorney fees on appeal.   

Case No. 18-0458:  In re the Marriage of Sliger

Filed Feb 06, 2019

View Opinion No. 18-0458

            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)

            Joseph Sliger appeals from the district court’s denial of his petition to modify his child-support obligation, arguing his reduction in income since the entry of the 2016 decree dissolving his marriage to Cassidee Sliger (now known as Cassidee Parks) was not voluntary.  Cassidee asks that we award her appellate attorney fees.  OPINION HOLDS: Joseph’s voluntary act that resulted in termination does not qualify as a self-inflicted or voluntary reduction of income that would justify using his former salary in setting child support payments.  Consequently, we reverse the district court’s denial of Joseph’s petition to modify his child-support obligation and remand for the obligation to be recalculated using the parties’ current incomes.  We decline Cassidee’s request for appellate attorney fees.

Case No. 18-0492:  State of Iowa v. Carlos Sierra-Rojas

Filed Feb 06, 2019

View Opinion No. 18-0492

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Mahan, S.J., and Danilson, S.J.  Opinion by Danilson, S.J.  (19 pages)

            Carlos Sierra-Rojas appeals from his conviction and sentence, following a jury trial, for harboring a runaway.  Rojas contends the district court erred in denying his pretrial motion to dismiss for improper venue; erred in denying his motion for directed verdict based on insufficient evidence; abused its discretion in admitting an untimely disclosed, irrelevant, and unfairly prejudicial exhibit; and erred in not instructing the jury that he did not have an affirmative duty to report the runaway’s whereabouts to law enforcement.  OPINION HOLDS: Because venue is nonjurisdictional, Rojas’s failure to file a pretrial motion for change of venue was not preserved.  Because there was sufficient evidence Rojas committed the crime of harboring a runaway, the complained-of exhibit was disclosed as early as practicable and was not irrelevant and cumulative, and we determine Rojas was not prejudiced by the court’s refusal to give his proposed jury instruction, we affirm.  

Case No. 18-0504:  John Doe and James Doe v. Sally J. Gill

Filed Feb 06, 2019

View Opinion No. 18-0504

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Potterfield, P.J.  (6 pages)

            On interlocutory appeal, John Doe and James Doe, who are both HIV positive, challenge the district court’s ruling they cannot proceed in an action against Sally Gill for disseminating information about their diagnoses without using their own names in the public court filings.  OPINION HOLDS: We reverse the district court order requiring John and James to amend or restate their petition and remand for further proceedings consistent with this opinion.

Case No. 18-0513:  State of Iowa v. Christopher Dennis Goddard

Filed Feb 06, 2019

View Opinion No. 18-0513

            Appeal from the Iowa District Court for Clinton County, Mark R. Lawson, Judge, and Phillip J. Tabor, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Tabor, J., takes no part.  Opinion by Potterfield, P.J.  (3 pages)

            Christopher Goddard appeals the district court’s denial of his pre-plea motions to continue trial and waive his right to speedy trial, and the denial of his post-sentencing motion to set aside his guilty plea.  OPINION HOLDS: Because Goddard’s guilty plea waived his right to challenge the court’s adverse pre-plea rulings and because his claim that his plea was not knowing and voluntary is not preserved for our review, we affirm.

Case No. 18-0549:  State of Iowa v. Kent E. Walker, Sr.

Filed Feb 06, 2019

View Opinion No. 18-0549

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (9 pages)

            Kent Walker appeals his conviction of assault with intent to commit sexual abuse causing bodily injury.  OPINION HOLDS: The district court’s admission of the 911 phone call recording did not violate Walker’s right to confront his accuser under the Iowa Constitution or the United States Constitution.  The accuser’s statements to police constituted excited utterances, and officers’ testimony regarding those statements did not violate the rule against hearsay.  Walker waived the argument that the testimony of the police officers was prejudicially cumulative by failing to provide supporting authority for that claim.

Case No. 18-0674:  State of Iowa v. Kenneth Lloyd Carmer

Filed Feb 06, 2019

View Opinion No. 18-0674

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Dissent by Vaitheswaran, J.  (5 pages)

            Kenneth Carmer appeals his guilty plea to domestic abuse assault causing bodily injury, second offense.  OPINION HOLDS: Carmer’s guilty plea was not defective.  A written plea is not required to advise a defendant that the sentence for the offense could be served consecutively to sentences in other cases.  DISSENT ASSERTS: Following the sentencing hearing, the district court ordered Carmer to serve his sentence consecutively to the sentence in FECR092096 and one other sentence.  In my view, the possibility that the pending sentence would be imposed consecutively to Carmer’s other sentences was a direct consequence of the plea and Carmer should have been informed of this consequence.  Because the guilty plea form did not include such a statement, I would set aside the guilty plea and remand the case to the district court. 

Case No. 18-0676:  State of Iowa v. David Person

Filed Feb 06, 2019

View Opinion No. 18-0676

            Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge.  CONVICTION AFFIRMED.  SENTENCE VACATED IN PART AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            David Person appeals from his sentence imposed after being convicted of operating while intoxicated, first offense.  He asserts his sentence was illegal because the district court ordered him to pay a $150.00 probation fee while being supervised by the Clay County Sheriff.  OPINION HOLDS: Although the Iowa Code allows for Person to be placed on probation, we find no provision in the code authorizing payment for a probationary fee to a county sheriff.  While assuming without deciding Person’s plea counsel was ineffective in allowing him to enter a plea that included this probation fee, we affirm Person’s conviction, vacate the probation fee to the sheriff, and remand for the district court to correct the illegal sentence.

Case No. 18-0716:  State of Iowa v. Chris Samart Keochai

Filed Feb 06, 2019

View Opinion No. 18-0716

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A defendant appeals his prison sentence contending the sentencing court failed to exercise its discretion by not considering the options of deferred judgment or deferred sentence.  OPINION HOLDS: Because Keochai was not eligible for a deferred judgment and the court was not required to expressly reject a deferred sentence, we affirm. 

Case No. 18-0845:  In the Matter of B.B.-P., Alleged to Be Seriously Mentally Impaired

Filed Feb 06, 2019

View Opinion No. 18-0845

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (6 pages)

            B.B.P. appeals the district court ruling she is seriously mentally impaired and must undertake further evaluation at a local medical facility.  She does not challenge the court’s substantive findings but maintains the application for her involuntary commitment should have been dismissed, as the commitment hearing took place more than five days after the court issued an order for her immediate custody due to serious mental impairment.  OPINION HOLDS: Because the district court did not err in denying B.B.-P.’s motion to dismiss the application alleging she is seriously mentally impaired, we affirm.

Case No. 18-0901:  In re the Marriage of Burington

Filed Feb 06, 2019

View Opinion No. 18-0901

            Appeal from the Iowa District Court for Winneshiek County, Richard D. Stochl, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Amber Burington appeals certain provisions of the decree dissolving her marriage to Christopher (Chris) Burington.  OPINION HOLDS:  We affirm the district court’s decision placing the children in the parties’ joint physical care.  We find the court did not improperly value the assets awarded to Chris and no offset needs to be made for the cash values of the parties’ life insurance policies.  The property division should be modified to set aside to Amber $20,000 from the value of her 401(k) account in recognition of her premarital assets.  In order to equalize the parties’ 401(k) accounts, Chris should receive $11,899 from Amber’s 401(k) through a qualified domestic relations order.  We affirm the district court’s decision denying Amber’s request to require Chris to maintain a life insurance policy naming the children as beneficiaries.  We determine each party should pay his or her own appellate attorney fees.

Case No. 18-1173:  In the Interest of S.C.-H., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1173

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (11 pages)

           

            A mother appeals the juvenile court’s termination of her parental rights.  She contends the State failed to make reasonable efforts to reunify her with the child and prove the statutory grounds for termination by clear and convincing evidence.  Further, she contends termination is not in the best interests of the child and requests additional time to work toward reunification.  OPINION HOLDS: The mother waived her reasonable-efforts challenge.  We find the State met its burden for termination under Iowa Code section 232.116(1)(h) (2017) and termination is in the child’s best interests.  We conclude an extension of time is not warranted in this case.

Case No. 18-1247:  In the Interest of J.R., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1247

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

            A mother appeals the termination of her parental rights.  OPINION HOLDS:  Sufficient evidence supports the termination of the mother’s parental rights.  Termination of the mother’s parental rights is in the child’s best interest.  The mother’s bond with the child does not preclude termination of her parental rights.

Case No. 18-1251:  In the Interest of B.H. and J.R., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1251

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            The mother appeals the termination of her parental rights to B.H. and J.R., born in 2008 and 2009, respectively.  The mother maintains there is not clear and convincing evidence the children could not be returned to her care at the time of the termination hearing, termination is not in the children’s best interests, and the district court erred in admitting hearsay evidence.  OPINION HOLDS: The juvenile court’s admission of messages between the mother and her paramour is not improper in juvenile proceedings.  The children cannot be returned to the mother’s care, and termination of her parental rights is in their best interests.  We affirm.

Case No. 18-1346:  In the Interest of C.O., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1346

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (6 pages)

            The mother appeals the termination of her parental rights to C.O., born in August 2017.  She argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(b), (e), (g), and (h) (2018).  In addition, she asserts termination is not in the best interests of the child and the willingness of a relative to assume legal custody precludes termination under Iowa Code section 232.116(3)(a).  OPINION HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination of the mother’s parental rights, termination is in the best interests of the child, and nothing in the record precludes termination.

Case No. 18-1364:  In the Interest of P.J. and D.J., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1364

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            A father appeals from the termination of his parental rights.  OPINION HOLDS: There are grounds for termination of the father’s parental rights, and we do not find an extension of time to seek reunification is in the children’s best interests or that the parent-child bond weighs against termination here.  Finding no merit in the father’s contentions, we affirm the termination of his parental rights.

Case No. 18-1594:  In the Interest of N.M. and Z.M., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1594

            Appeal from the Iowa District Court for O’Brien County, David C. Larson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            A mother and father separately appeal following their consent to termination of their parental rights.  OPINION HOLDS: We affirm the termination of the parents’ rights to their two children.

Case No. 18-1652:  In the Interest of R.W. and D.F., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1652

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Bower, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            The mother appeals the termination of her parental rights to her children, D.F., born in 2012, and R.W., born in 2017.  The mother’s parental rights were terminated pursuant to Iowa Code section 232.116(1)(d), (e), (f), (h), (i), and (l) (2018).  On appeal, the mother challenges the statutory grounds for termination and argues a permissive factor weighs against terminating her parental rights.  OPINION HOLDS: As the children could not be returned to the mother’s care at the time of the termination hearing and no permissive factor weighs against it, we affirm the termination of the mother’s parental rights to D.F. pursuant to section 232.116(1)(f) and to R.W. pursuant to section 232.116(1)(h).

Case No. 18-1659:  In the Interest of M.D., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1659

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and McDonald, JJ.  Opinion by Doyle, J.  (4 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Because the father has not seen the child since February 2017, has unresolved substance-abuse issues, and is incarcerated, terminating his parental rights is in the child’s best interests.  The evidence shows the Iowa Department of Human Services did not fail to consider the child’s placement with the paternal grandmother.

Case No. 18-1661:  In the Interest of E.G., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1661

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (6 pages)

            The mother appeals the termination of her parental rights to her child, E.G., who was born in 2006.  The juvenile court terminated the mother’s parental rights pursuant to Iowa Code section 232.116(1)(e) and (f) (2018).  The mother maintains the statutory grounds for termination have not been met as the State failed to make reasonable efforts to reunify her with her child and the close bond she shares with E.G. precludes termination.  OPINION HOLDS: The mother’s reasonable-efforts argument has not been preserved for our review, and no permissive factor weighs against the termination of the mother’s parental rights.  We affirm.

Case No. 18-1674:  In the Interest of T.A., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1674

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Doyle and McDonald, JJ.  Opinion by Doyle, J.  (8 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS:  The State failed to prove the grounds for termination under Iowa Code section 232.116(1)(d) (2018) because the juvenile court never found the child was physically or sexually abused or neglected.  The State failed to prove the grounds for termination under Iowa Code section 232.116(1)(e) because the evidence was insufficient to establish that the father failed to maintain significant and meaningful contact with the child.  The State failed to prove the grounds for termination under Iowa Code section 232.116(1)(f) because it failed to show a nexus between the father’s conduct and an appreciable risk of adjudicatory harm. 

Case No. 18-1683:  In the Interest of N.S., A.R., A.S.-R., and G.S.-R., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1683

            Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            The mother appeals the termination of her parental rights to her four children, who at the time the termination order issued ranged in ages from six years old to two years.  The mother’s parental rights were terminated pursuant to Iowa Code section 232.116(1)(f), (h), and (l) (2018).  On appeal, she purports to challenge the statutory grounds, argues the children could be returned to her care in a reasonable time, and maintains termination of her rights is not in the children’s best interests.  OPINION HOLDS: The mother failed to challenge any of the elements of section 232.116(1)(f) and (h) and therefore has waived any alleged error committed by the juvenile court.  Because we cannot say she would be able to care for the children after a short extension of time, and because termination is in the best interests of the children, we affirm.

Case No. 18-1875:  In the Interest of B.R., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1875

            Appeal from the Iowa District Court for Jones County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Bower, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            A mother appeals the termination of her parental rights to her child, born in 2013.  She contends the record lacks clear and convincing evidence to support the grounds for termination cited by the district court and termination is not in the child’s best interests.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 18-1957:  In the Interest of A.R., Minor Child

Filed Feb 06, 2019

View Opinion No. 18-1957

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.   Opinion by Vaitheswaran, J.  (4 pages)

            A mother appeals the termination of her parental rights to her minor child arguing the State failed to prove the grounds for termination cited by the district court and termination was not in the child’s best interest.  OPINION HOLDS: On our de novo review, we conclude the State proved by clear and convincing evidence that termination was warranted.  We affirm the termination of the mother’s parental rights to the child.

Case No. 18-1975:  In the Interest of H.L., J.L., and M.L., Minor Children

Filed Feb 06, 2019

View Opinion No. 18-1975

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (6 pages)

            Nicole appeals the termination of her parental rights in her children.  OPINION HOLDS: Termination of parental rights is in the best interest of the children.  The district court did not err in denying Nicole an additional six months to work toward reunification.

Case No. 17-1001:  Susan K. Morrison, Executor on Behalf of the Estate of Max L. Morrison, Susan K. Morrison, Executor on Behalf of Susan K. Morrision, Susan K. Morrison, Executor on Behalf of Brian L. Morrison and Michael S. Morrison v. Grundy County Rural Electric Cooperative

Filed Jan 23, 2019

View Opinion No. 17-1001

            Appeal from the Iowa District Court for Tama County, Mitchell E. Turner, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (16 pages)

            The family of Max Morrison (the Morrisons) are plaintiffs in a negligence action against the Grundy County Rural Electric Cooperative (GCREC).  They alleged the GCREC was liable when an airplane carrying Max hit one of their above-ground power lines and crashed, resulting in Max’s death.  A jury found the GCREC was at fault but was not a cause of the crash.  The Morrisons raise numerous grounds of error.  OPINION HOLDS: Because the Morrisons received a favorable verdict finding fault, we do not entertain any allegations of error related to fault.  In addition, because the jury never reached the question of comparative fault, we do not consider any allegations of error related to comparative fault.  We find the Morrisons failed to preserve error on several issues, including on the instruction defining “cause.”  We address on its merits the Morrisons’ claim the court should have ruled as a matter of law that Max’s death fell within the scope of the GCREC’s liability; but we find the Morrisons were not entitled to a directed verdict on that question.  Having disposed of all issues, we affirm. 

Case No. 17-1100:  Janice and Jeff Gray, Individually and as parents and next friends of J.G. v. James Lee Hohenshell

Filed Jan 23, 2019

View Opinion No. 17-1100

            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 Mullins, J.  (28 pages)

            James Hohenshell appeals a district court order denying his motion for a new trial and upholding a jury award in favor of plaintiffs.  He argues the district court erred in denying his motion for a new trial or remittitur because: (1) the verdict was influenced by passion or prejudice, (2) the compensatory damages award was not supported by the evidence, and (3) the punitive damages award was excessive and violates his due process rights.  OPINION HOLDS: We affirm the district court’s denial of Hohenshell’s motion for a new trial.

Case No. 17-1261:  State of Iowa v. Jacob Lee Smith

Filed Jan 23, 2019

View Opinion No. 17-1261

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            Jacob Smith appeals his convictions for theft in the second degree and burglary in the third degree, both as a habitual offender.  OPINION HOLDS: Sufficient evidence identified Smith as the perpetrator, and the district court did not abuse its discretion in denying a motion for new trial based on newly discovered evidence.

Case No. 17-1334:  In re the Marriage of Frick

Filed Jan 23, 2019

View Opinion No. 17-1334

            Appeal from the Iowa District Court for Dubuque County, Monica L. Wittig Zrinyi, Judge.  AFFIRMED AS MODIFIED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J. Concurrence in part and dissent in part by Tabor, P.J.  (12 pages)

            Duane Frick appeals the economic provisions of the district court’s decree dissolving his marriage with Jane Frick.  OPINION HOLDS: We find a discrepancy occurred in the court’s calculations and modify the economic distributions.  We affirm as modified the decree’s spousal support award and life insurance requirement.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part from the majority's modification of the property division.  Duane failed to preserve error on the issue of the district court's calculation error.  Although Duane asked the court in his motion to modify, enlarge, or amend, to reconsider the equalization payment, he did not allege an error in arithmetic as he does on appeal.  I would not disturb the equalization payment. 

Case No. 17-1416:  State of Iowa v. Tykel Dupree Robinson

Filed Jan 23, 2019

View Opinion No. 17-1416

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  REVERSED AND REMANDED.  Heard by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (11 pages)

            A jury found Tykel Robinson guilty of first-degree robbery.  Robinson appeals his conviction and sentence.  First, Robinson asserts he received ineffective assistance of counsel because his counsel failed to object to an incomplete jury instruction that did not provide for specific intent for an aider and abettor.  Second, he argues the district court should have excluded evidence of a shooting where Robinson was not involved.  Alternatively, he asserts his counsel was ineffective for failing to object to the use of evidence beyond what the ruling in limine allowed.  OPINION HOLDS: We conclude Robinson’s counsel provided ineffective assistance of counsel by failing to object to the faulty instruction and such failure resulted in prejudice.  Additionally, we find the district court’s ruling on the motion in limine was proper, but we find the counsel breached an essential duty by failing to raise further objection to the admission of evidence beyond the confines of the ruling.  Therefore, we reverse and remand for a new trial.

Case No. 17-1842:  State of Iowa v. Jamodd Sallis

Filed Jan 23, 2019

View Opinion No. 17-1842

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION VACATED; REMANDED WITH DIRECTIONS.  Considered by Vogel, C.J., Tabor, J., and Danilson, S.J.  Opinion by Tabor, J.  Partial Dissent by Danilson, S.J.  (12 pages)

            Jamodd Sallis appeals his convictions and sentences following trial and jury verdict finding him guilty of possession of a firearm by a felon, being habitual offender, and carrying weapons.  He contends the trial court applied the wrong standard in ruling on his motion for a new trial.  He also contends there was insufficient evidence to prove he possessed a firearm.  Lastly, Sallis raises several issues related to the determination of his reasonable ability to pay restitution.  OPINION HOLDS: We affirm the jury verdicts on the sufficiency of the evidence.  But we reverse the district court’s judgment on the new-trial motion and its determination Sallis had the reasonable ability to pay restitution.  We remand for two actions: (1) a corrected sentencing order removing the reference to Sallis’s ability to pay and (2) application of the weight-of-the-evidence standard on Sallis’s motion for new trial.  PARTIAL DISSENT ASSERTS: I agree with the majority in all respects except the adequacy of the district court’s ruling on the motion for new trial.  I believe the district court applied the proper standard, and I would affirm the convictions but remand with directions to correct the sentencing order.

Case No. 17-1965:  Troy Patrick Shearon v. State of Iowa

Filed Jan 23, 2019

View Opinion No. 17-1965

            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 Mullins, J.  (2 pages)

            Troy Shearon appeals the summary disposition of his postconviction-relief application.  OPINION HOLDS: We agree with the district court’s ruling granting the State’s request for summary disposition.  We therefore affirm. 

Case No. 17-2062:  In re the Marriage of Gaynor

Filed Jan 23, 2019

View Opinion No. 17-2062

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  REVERSED AND REMANDED.  Considered by Vogel, C.J., Tabor, J., and Danilson, S.J.  Opinion by Tabor, J.  (9 pages)

            Julie Meyer appeals the district court ruling on her petition to modify the postsecondary-education provision in the 2010 decree dissolving her marriage to William Gaynor.  OPINION HOLDS: Because Julie was not provided a hearing, and the district court answered questions not properly before it, we reverse the district court’s order and remand for a new trial on Julie’s petition for modification of the decree on the issue of postsecondary-education subsidies.

Case No. 17-2067:  In re the Marriage of Lynch

Filed Jan 23, 2019

View Opinion No. 17-2067

            Appeal from the Iowa District Court for Greene County, Adria Kester, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED IN PART AND AFFIRMED AS MODIFIED IN PART ON CROSS-APPEAL.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (15 pages)

            Edward Lynch appeals, and Rebecca Lynch cross-appeals, a decree of dissolution of marriage.  Edward challenges the award of traditional spousal support in favor of Rebecca.  Rebecca challenges the awards of spousal support and trial attorney fees as inadequate and contends the district court erred in setting aside the entirety of the premarital value of Edward’s retirement account.  OPINION HOLDS: We affirm the district court but modify the decree in two respects.  We modify the district court’s property distribution to award Rebecca an equalization payment in the amount of $7500 to be paid by Edward.  We modify the spousal support award in favor of Rebecca to $1000 per month.  We affirm the district court’s award of trial attorney fees.  Costs on appeal are assessed equally between the parties.

Case No. 17-2090:  State of Iowa v. Travis Lee Hanna

Filed Jan 23, 2019

View Opinion No. 17-2090

            Appeal from the Iowa District Court for Wright County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            Travis Hanna appeals his conviction, following a guilty plea, of operating while intoxicated.  He argues: (1) the State breached the plea agreement with its sentencing recommendation; (2) defense counsel was ineffective in joining the State’s recommendation; and (3) the court failed to inform him in advance that it refused to be bound by the agreement and failed to tell him he had a right to withdraw his guilty plea.  OPINION HOLDS: We find the record inadequate to determine whether the State breached the plea agreement or counsel was ineffective as alleged.  We reject Hanna’s remaining argument.  We therefore affirm Hanna’s conviction but preserve his claims concerning ineffective assistance of counsel for possible postconviction-relief proceedings.

Case No. 18-0007:  Joel Zamora v. State of Iowa

Filed Jan 23, 2019

View Opinion No. 18-0007

            Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mahan, S.J., and Danilson, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Joel Zamora appeals the district court’s denial of his application for postconviction relief following his 2014 convictions for burglary in the first degree and robbery in the first degree, raising claims of ineffective assistance of counsel.  OPINION HOLDS: Upon our review, we affirm the court’s order denying Zamora’s application for postconviction relief. 

Case No. 18-0121:  Bobby Ray Devers v. State of Iowa

Filed Jan 23, 2019

View Opinion No. 18-0121

            Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (3 pages)

            Bobby Ray Devers, appeals the district court’s summary dismissal of his fourth postconviction-relief (PCR) action.  OPINION HOLDS: We agree with the PCR court that neither claim Devers now makes would be newly-discovered evidence.  Therefore, the PCR court’s grant of summary dismissal is affirmed by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(b), (d), and (e).

Case No. 18-0217:  State of Iowa v. Kevin Leon Poster, II

Filed Jan 23, 2019

View Opinion No. 18-0217

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Carr, S.J.  Opinion by Tabor, P.J.  (8 pages)

            The defendant appeals his conviction for operating while intoxicated, contending the district court should have suppressed his breath test results because the arresting officer misinformed him about the right to an independent chemical test.  OPINION HOLDS: Because the record holds sufficient evidence to support the district court’s alternative finding that the defendant was driving under the influence, we find any error in denying his motion to suppress was harmless.  We affirm. 

Case No. 18-0255:  State of Iowa v. Mark Edward Wilcox

Filed Jan 23, 2019

View Opinion No. 18-0255

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (3 pages)

            In December 2017, Mark Edward Wilcox filed two petitions to expunge his July 2009 and May 2013 convictions for public intoxication.  The district court denied both petitions for expungement.  OPINION HOLDS: We find the district court correctly interpreted the applicable statute and affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(d) and (e). 

Case No. 18-0274:  State of Iowa v. Rebecca Jones

Filed Jan 23, 2019

View Opinion No. 18-0274

            Appeal from the Iowa District Court for Harrison County, Mark J. Eveloff, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (5 pages)

            Rebecca Jones appeals her conviction, following an Alford plea, of first-degree arson.  She argues her counsel rendered ineffective assistance in allowing her to plead guilty absent a sufficient factual basis to support the charge and failing to file a motion in arrest of judgment to challenge the plea.  OPINION HOLDS: Jones’s plea to arson in the first degree enjoys a factual basis.  Consequently, we conclude counsel did not render ineffective assistance in allowing her to plead guilty or in failing to challenge the plea by way of a motion in arrest of judgment.  We affirm Jones’s conviction.

Case No. 18-0326:  Somvang Meksavanh v. State of Iowa

Filed Jan 23, 2019

View Opinion No. 18-0326

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (5 pages)

            Somvang Meksavanh appeals the summary disposition of his application for postconviction relief (PCR).  OPINION HOLDS: We conclude the State was entitled to judgment as a matter of law and affirm the summary disposition of Meksavanh’s PCR application.

Case No. 18-0351:  State of Iowa v. Kathy Perry

Filed Jan 23, 2019

View Opinion No. 18-0351

            Appeal from the Iowa District Court for Woodbury County, John C. Nelson, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE PARTIALLY VACATED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Kathy Perry appeals her sentence for driving while her license was barred.  She contends the sentencing court abused its discretion by ordering her to pay attorney fees and court costs without determining what those amounts were but finding she was reasonably able to pay attorney fees.  OPINION HOLDS: The court found Perry had the reasonable ability to pay attorney fees without knowing the amount—we find this was an abuse of discretion and remand for further proceedings.  But, the court made no determination that Perry was reasonably able to pay for court costs.  Therefore, Perry’s challenge to the order to pay court costs is premature.  

Case No. 18-0361:  State of Iowa v. Cynthia Kobusch, Michael Kobusch, and Jeffrey Merfeld

Filed Jan 23, 2019

View Opinion No. 18-0361

            Appeal from the Iowa District Court for Dubuque County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (5 pages)

            On discretionary review, the State challenges the district court’s denial of its motions to dismiss criminal prosecutions in the furtherance of justice.  OPINION HOLDS: The order denying the motion to dismiss provides no reasons why the court refused to grant the dismissal or why dismissal would not have been in the furtherance of justice.  In the absence of stated reasons, we find the district court abused its discretion when it denied the State’s motion for dismissal.  We further find the record made demonstrated sound reasoning and a proper exercise of prosecutorial discretion and executive branch function.  We reverse and remand for the court to enter an order granting the motion to dismiss, without prejudice.

Case No. 18-0368:  State of Iowa v. Jasiah Thane Finck

Filed Jan 23, 2019

View Opinion No. 18-0368

            Appeal from the Iowa District Court for Warren County, Mark F. Schlenker, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            Jasiah Finck appeals the denial of his motion for a new trial on weight-of-the-evidence grounds.  OPINION HOLDS: Finding no abuse of discretion, we affirm the district court’s denial of Finck’s motion for a new trial. 

Case No. 18-0390:  In re the Detention of Galen Kendrick Shaffer

Filed Jan 23, 2019

View Opinion No. 18-0390

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            Respondent Galen Shaffer appeals the district court’s order of continuing civil commitment under Iowa Code chapter 299A (2017).  OPINION HOLDS: The district court determined the State’s expert’s report was “more credible and reliable than [Shaffer’s expert]” and “more consistent with other credible evidence.”  We agree and affirm without further opinion.

Case No. 18-0446:  State of Iowa v. Harold Lathrop

Filed Jan 23, 2019

View Opinion No. 18-0446

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            Harold Lathrop challenges his sentence following convictions for second-degree theft and driving while barred.  First, he contends the sentencing court did not provide sufficient reasons for imposing the sentence following his plea of guilty by plea agreement.  Second, he contends the court’s order that he pay an at-that-time unknown amount of restitution was an abuse of discretion because the court did not determine whether he had the reasonable ability to pay.  OPINION HOLDS: First, because there is a diminished duty to give reasons for the sentence where the sentencing court accepts and adopts the parties’ plea agreement, we find no abuse of discretion in the court’s sentencing.  Second, the sentencing court had no obligation to make an ability-to-pay determination until it entered a plan of restitution, which had not been done in this case.  As the court had no obligation to make the determination, we find Lathrop’s challenge to be premature.  We affirm.  

Case No. 18-0482:  State of Iowa v. Thomas Alvin Monson

Filed Jan 23, 2019

View Opinion No. 18-0482

            Appeal from the Iowa District Court for Winneshiek County, John J. Bauercamper, Judge.  POSSESSION OF CONTRABAND CONVICTION AND SENTENCE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (8 pages)

            Thomas Monson appeals his conviction, following an Alford plea, of possessing contraband in a jail.  He argues his counsel rendered ineffective assistance in allowing him to plead guilty absent a sufficient factual basis to support his plea.  OPINION HOLDS: We find counsel was ineffective as alleged.  Because there may be additional facts and circumstances not appearing in the record that would support an inference Monson knew he was in the possession of the marijuana, we vacate Monson’s conviction and sentence for that charge and remand for further proceedings.

Case No. 18-0585:  State of Iowa v. William John Simpson

Filed Jan 23, 2019

View Opinion No. 18-0585

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            William Simpson appeals the sentence imposed upon his conviction of assault with intent to inflict serious injury.  He argues the court abused its discretion by imposing an excessive sentence.  OPINION HOLDS: We find no abuse of discretion and affirm Simpson’s sentence.

Case No. 18-0608:  State of Iowa v. Christopher James Beardshear

Filed Jan 23, 2019

View Opinion No. 18-0608

            Appeal from the Iowa District Court for Washington County, Daniel P. Kitchen, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            Christopher Beardshear appeals his conviction for operating while intoxicated, first offense.  OPINION HOLDS: The record before us lacks any basis to evaluate his ineffective-assistance claim.  Therefore, we affirm his conviction and preserve his ineffective-assistance claim for possible postconviction proceedings. 

Case No. 18-0731:  State of Iowa v. Jasiah Thane Finck

Filed Jan 23, 2019

View Opinion No. 18-0731

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

            Jasiah Finck appeals the district court’s denial of his motion for a new trial on weight-of-the-evidence grounds following a jury verdict finding him guilty of violating a custodial order.  OPINION HOLDS: Finding no abuse of discretion, we affirm the district court’s denial of Finck’s motion for a new trial.

Case No. 18-0792:  D.E. v. Iowa Department of Human Services

Filed Jan 23, 2019

View Opinion No. 18-0792

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (3 pages)

            D.E. seeks judicial review of a decision of the Iowa Department of Human Services finding he committed child abuse and placing him on the central registry.  OPINION HOLDS: We agree with the thorough and well-reasoned opinion of the district court.  We affirm without further opinion.

Case No. 18-0838:  State of Iowa v. Ricky Andre Carter

Filed Jan 23, 2019

View Opinion No. 18-0838

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt (plea) and Monica Zrinyi Wittig (sentencing), Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (7 pages)

            Ricky Carter appeals his convictions, following guilty pleas, of a number of controlled-substance violations and the sentences imposed.  He claims his counsel rendered ineffective assistance in relation to his guilty pleas and the court imposed an illegal sentence.  OPINION HOLDS: We find the record inadequate to consider Carter’s ineffective assistance claim on direct appeal.  We reject Carter’s claim that the court imposed an illegal sentence.  We therefore affirm Carter’s conviction and sentence but preserve his claim of ineffective assistance of counsel for possible postconviction-relief proceedings. 

Case No. 18-0868:  State of Iowa v. David Shelledy

Filed Jan 23, 2019

View Opinion No. 18-0868

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

            David Shelledy appeals his sentence for operating while intoxicated, third offense, claiming the court should have continued his sentencing hearing and the court erred by imposing a harsher sentence than recommended in his presentence investigation report.  OPINION HOLDS: We find the court acted within its discretion in denying the motion to continue sentencing and imposing sentence.

Case No. 18-1249:  In the Interest of K.C. and S.M., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1249

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (9 pages)

            A mother and a father separately appeal from the termination of their parental rights.  OPINION HOLDS: Because grounds for termination exist and termination of the parents’ parental rights is in the children’s best interests, we affirm on both appeals.

Case No. 18-1317:  In the Interest of J.H., J.H., and J.H., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1317

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            A mother and father separately appeal the termination of their parental rights to three children.  The mother and father challenge the existence of grounds for termination.  The father also asserts the juvenile court erred in determining termination is in the children’s best interests.  OPINION HOLDS: Because the children are under three years of age, have been adjudicated children in need of assistance, have been out of the parents’ custody for at least six consecutive months, and cannot be returned to the parents at present, termination of parental rights is appropriate pursuant to Iowa Code section 232.116(1)(h) (2018).  Permanency for these children is in their best interests.  No factor listed in section 232.116(3) mitigates against termination.

Case No. 18-1333:  In the Interest of T.S., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1333

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, District Associate Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 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 father abandoned the child and termination is in the child’s best interest.  We reverse the juvenile court’s decision.

Case No. 18-1443:  In the Interest of E.P., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1443

            Appeal from the Iowa District Court for Worth County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (3 pages)

            A mother appeals the termination of her parental rights to her child, E.P.  She requests an additional six months to work towards reunification, and she asserts termination is not in the child’s best interests and the bond they share should preclude termination.  OPINION HOLDS: We find nothing in this record to support an extension of time that would delay termination.  We also agree with the district court termination is in E.P.’s best interests.  We therefore affirm the district court’s termination of the mother’s parental rights without further opinion. 

Case No. 18-1693:  In the Interest of A.A., D.A., and N.A., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1693

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

            A mother appeals the termination of her parental rights to her three children under Iowa Code subsections 232.116(1)(e), (f), (h), and (l) (2018), arguing termination would be detrimental to the children due to the closeness of the parent-child relationship and asking for six additional months to reunify.  OPINION HOLDS: Because we do not find clear and convincing evidence termination would be detrimental to the children, nor that delaying permanency for six additional months would serve the children’s best interests, we affirm.

Case No. 18-1701:  In the Interest of J.G., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1701

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (3 pages)

            A mother and father separately appeal the termination of their parental rights.  OPINION HOLDS: The parents have waived and failed to preserve their reasonable-efforts challenges.  The State met its burden for termination under Iowa Code section 232.116(1)(h) (2018).  Termination is in the child’s best interests.  We affirm. 

Case No. 18-1731:  In the Interest of T.T. and D.T., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1731

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of his rights, it would be contrary to the children’s interests to give him additional time to work on reunification, and termination is in the children’s best interests.  We affirm the juvenile court’s decision.

Case No. 18-1768:  In the Interest of W.D., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1768

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

            A father appeals the juvenile court’s modification of the permanency goal in the child-in-need-of-assistance case placing the child in the mother’s custody.  The father claims the juvenile court abused its discretion in denying his motion to continue the second day of the permanency hearing. OPINION HOLDS: We find the juvenile court did not abuse its discretion in refusing to grant the father’s motion.

Case No. 18-1828:  In the Interest of C.H. and D.H., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1828

            Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (8 pages)

            A mother and father separately appeal a permanency order involving their two children.  They contend the district court (1) should not have denied their request to cancel a no-contact order preventing interaction with their children; (2) should have lifted a sequestration order which prohibited disclosure of the children’s locations; and (3) should have concluded that the department of human services failed to make reasonable efforts toward reunification.  OPINION HOLDS: We affirm all aspects of the permanency order except the portion denying the parents’ motion to lift the sequestration order.  We reverse that portion of the order.

Case No. 18-1840:  In the Interest of A.P., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1840

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            A mother challenges the permanency review order in a child-in-need-of-assistance proceeding.  OPINION HOLDS: The juvenile court had the authority to transfer custody of the child to his father, the juvenile court was not required to find a material and substantial change in circumstances before transferring custody, and the custody transfer is in the best interest of the child.

Case No. 18-1842:  In the Interest of L.I., G.I., and A.I., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1842

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            A father appeals the permanency order granting the mother an additional three months to work toward reunification with their children.  OPINION HOLDS: On our de novo review, we find the district court did not err in granting a three-month extension.  We therefore affirm the permanency order without further opinion. 

Case No. 18-1881:  In the Interest of J.M., B.M., and L.M., Minor Children

Filed Jan 23, 2019

View Opinion No. 18-1881

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  (10 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 parents’ parental rights were established under section 232.116(1) paragraphs (f) and (h) (2018), termination of the parents’ parental rights is in the children’s best interests, and exceptions to termination do not apply here, we affirm the juvenile court’s order terminating the parents’ parental rights.

Case No. 18-1959:  In the Interest of A.K., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1959

            Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A mother and father separately appeal the termination of their parental rights under Iowa Code section 232.116(1)(h) (2018), arguing the State failed to prove the child could not be returned home and termination was not in the child’s best interests because of the close parent-child relationship.  OPINION HOLDS: Finding clear-and-convincing proof the child could not be returned to the home at the time of termination and the closeness of the parent-child relationships does not weigh against termination, we affirm. 

Case No. 18-1993:  In the Interest of M.H., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-1993

            Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (2 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The mother’s failure to argue on appeal waives error.  Consequently, we affirm the termination of her parental rights. 

Case No. 18-2016:  In the Interest of T.H., Minor Child

Filed Jan 23, 2019

View Opinion No. 18-2016

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We find termination of the father’s parental rights, not the establishment of a guardianship, is in the child’s best interest.  We affirm the juvenile court.

Case No. 17-0949:  The University of Iowa, Board of Regents, State of Iowa v. The American Arbitration Association and Modern Piping, Inc.

Filed Jan 09, 2019

View Opinion No. 17-0949

            Appeal from the Iowa District Court for Johnson County, Mary E. Chicchelly, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (5 pages)

            The petitioners appeal from the order granting summary judgment on their action to enjoin the American Arbitration Association (AAA) from arbitrating a contract dispute.  OPINION HOLDS: Because the petitioners fall short of showing the “clear absence” of jurisdiction required to divest the AAA of its arbitral immunity, the district court properly granted summary judgment in the AAA’s favor. 

Case No. 17-1075:  State of Iowa v. Kenneth Leroy Heard

Filed Jan 09, 2019

View Opinion No. 17-1075

            Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.  REVERSED AND REMANDED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (10 pages)

            Kenneth Heard appeals from his conviction for murder in the first degree.  Heard argues the district court erred in denying his motion to compel testimony from a witness, his sentence is illegal because the jury did not specifically find him to be over eighteen at the time of the offense, and the district court erred in denying his motion for a new trial because the jury verdict went against the weight of the evidence.  OPINION HOLDS: The district court violated Heard’s right to compulsory process when it failed to determine the extent or validity of a witness’s assertion of his Fifth Amendment privilege. 

Case No. 17-1213:  Kassie Rene Vezeau-Crouch, Individually, as Daughter and Administrator of the Estate of Toni Annette Vezeau v. Roy Abraham, M.D. and Miller Orthopedic

Filed Jan 09, 2019

View Opinion No. 17-1213

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (16 pages)

            Dr. Roy Abraham and Miller Orthopedic appeal from the district court’s denial of their motion for summary judgment.  In this medical malpractice case, the defendants contend they are entitled to judgment as a matter of law because the plaintiff’s expert witness is not qualified under Iowa Code section 147.139 (2015) to offer the sole standard of care opinion he offered, and because the expert was “unable to opine that the alleged breach of the standard of care more likely than not caused the damages at issue.”  The defendants also contend they are entitled to judgment on wrongful death damages because there is no evidence the alleged negligence caused the wrongful death.  OPINION HOLDS: Viewing the record of the expert’s qualifications in the light most favorable to the non-moving party, we conclude, at this juncture, the expert is qualified to testify whether Dr. Abraham breached the standard of care and was negligent in failing to culture the post-surgery infection to identify the organism that caused the infection, and this failure resulted in ineffective treatment.  We agree with the district court that the plaintiff will still be subject to meeting its burden on the expert’s qualifications at the time of trial.  Furthermore, we conclude the expert’s deposition testimony is sufficient to generate a jury question on causation and whether the alleged negligence caused the wrongful death is a question of fact for the jury.  We affirm the district court’s denial of summary judgment.

Case No. 17-1317:  UnityPoint Health Cedar Rapids d/b/a St. Luke's Hospital v. Iowa Department of Public Health, State Health Facilities Council and Mercy Hospital Cedar Rapids d/b/a Mercy Medical Center

Filed Jan 09, 2019

View Opinion No. 17-1317

            Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.  AFFIRMED.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (19 pages)

            UnityPoint Health Cedar Rapids, doing business as St. Luke’s Hospital, appeals from the district court’s ruling on judicial review affirming the State Health Facilities Council’s decision to issue a Certificate of Need (CON) to Mercy Hospital Cedar Rapids, which allows Mercy to establish its own open-heart surgical program in its Cedar Rapids hospital.  On appeal, St. Luke’s maintains the Council’s decision to grant the CON should be reversed because the Council’s interpretation of the minimum utilization rule—found in Iowa Administrative Code rule 641-203.2(3)(a)(1)—as a guideline rather than a mandate is either erroneous, see Iowa Code § 17A.19(10)(c) (2015), or “irrational, illogical, or wholly unjustifiable,” see Iowa Code § 17A.19(10)(l).  Additionally, St. Luke’s challenges whether some of the findings made by the Council are supported by substantial evidence in the record, see Iowa Code § 17A.19(10)(f), including some findings that are required by Iowa Code section 135.64 before a CON can be issued.  OPINION HOLDS: We agree with the district court that the Council is vested with the power to interpret rule 641-203.2(3)(a)(1) and its interpretation of the rule as a guideline is not illogical, irrational, or wholly unjustifiable.  Additionally, the Council’s necessary findings pursuant to Iowa Code section 135.64(2) are supported by substantial evidence in the record, and its decision to grant the CON is not irrational, illogical, or wholly unjustifiable.  We affirm the district court’s ruling on judicial review.

Case No. 17-1360:  Kelly Kohrs-Manriques v. Tamelia Brown and Lowell Bence

Filed Jan 09, 2019

View Opinion No. 17-1360

            Appeal from the Iowa District Court for Madison County, Bradley McCall, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Danilson, S.J.  Opinion by Vogel, P.J.  (7 pages)

            Kelly Kohrs-Manriques brought suit against Tamelia Brown, as owner of a tavern, and Lowell Bence, as mortgagor of the property.  Kohrs-Manriques claimed Brown’s transfer of the property to Bence was a fraudulent conveyance, designed to place the property out of her reach as a judgment creditor.  The district court considered the factors of a fraudulent conveyance and found Kohrs-Manriques did not establish, by clear and convincing evidence, the transfer was fraudulent.  OPINION HOLDS: We find the district court applied the correct standard and Kohrs-Manriques had not proved by clear and convincing evidence that a fraudulent conveyance occurred.

Case No. 17-1361:  Steve Thomas Schneider v. State of Iowa

Filed Jan 09, 2019

View Opinion No. 17-1361

            Appeal from the Iowa District Court for Carroll County, Dale E. Ruigh, Judge.  AFFIRMED.  Considered by Mullins, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J.  (7 pages)

            Steve Schneider appeals the district court decision denying his request for postconviction relief from his convictions of six counts of third-degree sexual abuse.  OPINION HOLDS: We find Schneider has not shown he received ineffective assistance of counsel during his criminal trial.  We affirm the district court’s decision denying his request for postconviction relief.

Case No. 17-1460:  State of Iowa v. Michelle M. Swenson

Filed Jan 09, 2019

View Opinion No. 17-1460

            Appeal from the Iowa District Court for Story County, James B. Malloy, District Associate Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            Michelle Swenson appeals her conviction for possession of methamphetamine, second offense, arguing the district court improperly denied her motion to suppress evidence uncovered during a warrantless search of her purse.  OPINION HOLDS: We affirm the district court’s denial of Swenson’s suppression motion and her “verdict and sentence” for possession of methamphetamine, second offense.

Case No. 17-1472:  State of Iowa v. Marc Aaron Hanslip

Filed Jan 09, 2019

View Opinion No. 17-1472

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vogel, P.J., McDonald, J., and Blane, S.J.  Opinion by Blane, S.J.  (16 pages)

            Defendant Hanslip appeals his convictions of being a felon in possession of a firearm and possession of an offensive weapon.  He contends the trial court erred in admission of claimed hearsay and in denial of his attorney’s motion to withdraw from representation due to a conflict.  OPINION HOLDS: (1) Trial court properly overruled defense counsel’s hearsay objection since the evidence was properly admitted under the excited utterance exception; and (2) trial court properly denied the defense counsel’s motion to withdraw following a hearing, when it removed attorney from same public defender office from representing a State’s witness in an unrelated case.

Case No. 17-1503:  Thomas James Dunlap v. AIG, Inc., Commerce and Industry Insurance Company and AIG Domestic Claims, Inc. Corporations

Filed Jan 09, 2019

View Opinion No. 17-1503

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (30 pages)

            Thomas Dunlap appeals the dismissal of his civil suit against his former employer’s workers’ compensation insurance carrier following the district court’s grant of summary judgment in the insurers’ favor.  OPINION HOLDS:  Upon our review, we affirm the district court’s ruling in all respects but one.  The district court erred in finding the defendants were entitled to summary judgment as a matter of law on Dunlap’s 2012 injury claim because a genuine issue of material fact existed as to whether the defendants’ reliance upon Dr. Wolfe’s subsequent opinion was reasonable.  Viewing the evidence in the light most favorable to Dunlap, a reasonable fact-finder could find that the defendants’ reliance was simply not reasonable once they were aware three other experts had opined a causal connection existed between Dunlap’s established 2007 work injury and his later injuries and Dr. Wolfe clarified his opinion with a condition that could change his opinion from possible causation to probable causation.  Because a fact question exists as to whether the defendants’ reliance was reasonable, the claim was not fairly debatable as a matter of law.  Consequently, we reverse the district court’s ruling in that regard and remand for further proceedings consistent with this opinion.  We do not retain jurisdiction, and any costs are assessed to the defendants.

Case No. 17-1545:  Pella Corporation v. Diana G. Winn

Filed Jan 09, 2019

View Opinion No. 17-1545

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (17 pages)

            Pella Corporation (Pella) appeals from the district court’s ruling affirming the decision of the Iowa workers’ compensation commissioner awarding benefits to Diana Winn.  Pella argues Winn’s petition for review-reopening was untimely and she was not entitled to permanent total disability benefits or penalty benefits.  OPINION HOLDS: We find the agency did not erroneously interpret the law, including our supreme court’s precedent; the review-reopening proceeding and the award of total permanent disability benefits have factual support; and the penalty benefits are authorized because Pella did not concurrently convey a reasonable basis to deny disability benefits.  Therefore, we affirm.

Case No. 17-1745:  Krapf v. Rastetter

Filed Jan 09, 2019

View Opinion No. 17-1745

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Special Concurrence by Vaitheswaran, J.  (8 pages)

            A plaintiff appeals the grant of summary judgment on her claim the Iowa Board of Regents and five of its members violated the Iowa Open Meetings Act (IOMA).  OPINION HOLDS: There was no genuine issue of material fact, and no meeting within the meaning of the IOMA took place.  Because no meeting took place, IOMA was not violated and the grant of summary judgment was correct.  SPECIAL CONCURRENCE ASSERTS: In my view, the Iowa Supreme Court has recognized that serial submajority gatherings of public bodies may violate the Iowa Open Meetings Law.  I agree, however, that the gatherings in this case did not violate the Iowa Open Meetings Law.

Case No. 17-1799:  Lynette Anne Heims v. Brad Francis Heims

Filed Jan 09, 2019

View Opinion No. 17-1799

            Appeal from the Iowa District Court for Dubuque County, Monica Wittig, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (9 pages)

            Lynette Heims appeals from the district court’s order terminating Brad Heims’s spousal support obligation and modifying the child-support order from their 2014 Illinois dissolution of marriage decree.  She argues a substantial change in circumstances has not occurred, continuing the spousal and child support orders is equitable, and the district court should have awarded her attorney fees.  Both parties request appellate attorney fees.  OPINION HOLDS: We agree with the court’s termination of spousal support and modification of child support.  We also find no decision on trial attorney fees to review, and we decline to award appellate attorney fees.

Case No. 17-1800:  John Nell Mitchell v. State of Iowa

Filed Jan 09, 2019

View Opinion No. 17-1800

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (2 pages)

            John Mitchell appeals the summary dismissal of his application for postconviction relief.  OPINION HOLDS: Mitchell’s application in this action was filed nearly thirteen years after issuance of procedendo, which is well beyond the statute of limitations.  No disputed issue of fact would bring Mitchell’s claim within that limitation.  Summary dismissal was proper.

Case No. 17-1897:  Paul Craig Jeffries and Gerald Jeffries, as Co-Administrators of the Estate of Fanchon B. Jeffries, deceased v. Central Iowa Health System d/b/a UnityPoint Health-Des Moines and Iowa Methodist Medical Central, and Central Iowa Hospital Corp. d/b/a UnityPoint Health-Des Moines and Iowa Methodist Medical Center

Filed Jan 09, 2019

View Opinion No. 17-1897

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Special Concurrence by Vaitheswaran, J.  (5 pages)

            The estate of Fanchon Jeffries appeals the district court’s grant of summary judgment in the appellee’s favor.  OPINION HOLDS: The district court was correct in granting summary judgment as to both breach of contract claims.  The estate failed to present the unjust enrichment claim in the district court and cannot assert the claim on appeal.  SPECIAL CONCURRENCE ASSERTS: I would conclude error was not preserved on a challenge to the merits, and I would affirm on statute-of-limitations grounds alone.

Case No. 17-1922:  Michael L. Cupps v. S & J Tube, Inc.

Filed Jan 09, 2019

View Opinion No. 17-1922

            Appeal from the Iowa District Court for Louisa County, Michael J. Schilling, Judge.  AFFIRMED.  Heard by Potterfield, J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (12 pages)

            Michael Cupps contends the district court erred in granting summary judgment because the employment application he signed is not a contract.  Alternatively, Cupps contends the exculpatory clause contained in the application is invalid because it does not certainly and unequivocally state the signer is waiving claims for negligence, or, even if the exculpatory clause is valid, Cupps’s injury was not a “work-related injury” within the meaning of the contract.  OPINION HOLDS: Because we conclude a binding contract existed between the parties, the exculpatory clause clearly and unequivocally alerts the casual reader the signer is waiving any claim for damage, and the injury was work-related, we affirm.

Case No. 17-1975:  State of Iowa v. Robin Inman

Filed Jan 09, 2019

View Opinion No. 17-1975

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (7 pages)

            Robin Inman appeals from her conviction for burglary in the first degree.  She maintains there is insufficient evidence to support her conviction, arguing there was not substantial evidence to support the jury’s finding (1) she had the intent to commit an assault or theft at the time she entered the occupied structure or (2) she inflicted bodily injury while “in or upon” the occupied structure.  OPINION HOLDS: Because substantial evidence supports the jury’s finding that Inman entered the home with the intent to commit a theft, we affirm Inman’s conviction for burglary in the first degree.  Her claim there was insufficient evidence to support a finding she committed an assault “in or upon” the structure is not preserved for our review, and we cannot consider her alternative ineffective-assistance claim; we preserve it for a postconviction-relief action.

Case No. 17-1992:  Jaysen McCleary v. City of Des Moines and Jerry Schillinger

Filed Jan 09, 2019

View Opinion No. 17-1992

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

            Jaysen McCleary appeals the dismissal of an application for contempt.  OPINION HOLDS: McCleary failed to meet the requirements for holding nonparties to a protective order in contempt for violating the order.  Because the district court properly dismissed McCleary’s application, we affirm.

Case No. 17-2007:  State of Iowa v. Donovan Mason Edwards

Filed Jan 09, 2019

View Opinion No. 17-2007

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

            Donovan Edwards appeals his criminal conviction, contending the district court abused its discretion in denying his motion for a new trial because the jury verdict was contrary to the weight of the evidence.  OPINION HOLDS: We are unable to say the evidence preponderates heavily against the jury’s finding of guilt.  We therefore conclude the district court did not abuse its discretion in denying Edwards’s motion for a new trial on weight-of-the-evidence grounds.  We affirm Edwards’s conviction. 

Case No. 17-2070:  State of Iowa v. David Larry Uchytil

Filed Jan 09, 2019

View Opinion No. 17-2070

            Appeal from the Iowa District Court for Buchanan County, George L. Stigler, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            David Uchytil appeals his conviction for domestic abuse assault causing bodily injury, claiming trial counsel was ineffective for failing to seek recusal by the trial judge for “overintervention” in the parties’ presentation of the case.  OPINION HOLDS: Finding the record inadequate to resolve this allegation on direct appeal, we affirm Uchytil’s conviction but preserve his ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings.

Case No. 17-2102:  In re the Marriage of Baker

Filed Jan 09, 2019

View Opinion No. 17-2102

            Appeal from the Iowa District Court for Wapello County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            Terry Baker appeals from the modification of the spousal support provisions of the decree dissolving his marriage to Mary Baker.  OPINION HOLDS: Because we find the modification of spousal support is equitable and based upon substantial changes of circumstances, we affirm.

Case No. 18-0059:  State of Iowa v. Connell Lamb

Filed Jan 09, 2019

View Opinion No. 18-0059

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Connell Lamb appeals his sentences for child endangerment and domestic abuse assault causing bodily injury.  OPINION HOLDS:  We find the State breached the plea agreement in its sentencing recommendation and Lamb’s counsel was ineffective in failing to object to the breach.  We vacate Lamb’s sentences and remand for resentencing before another judge.

Case No. 18-0070:  State of Iowa v. Kamesha Houston

Filed Jan 09, 2019

View Opinion No. 18-0070

            Appeal from the Iowa District Court for Scott County, Jon Telleen and Mark J. Smith, Judges.  VACATED IN PART AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Kamesha Houston appeals her conviction and sentence for possession of marijuana and carrying weapons.  OPINION HOLDS: We find the court applied her guilty plea to the wrong carrying-weapons count and vacate that conviction.  We remand for further proceedings.

Case No. 18-0160:  State of Iowa v. Shane Michael Jacobs

Filed Jan 09, 2019

View Opinion No. 18-0160

            Appeal from the Iowa District Court for Hancock County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (6 pages)

            Shane Jacobs appeals from his sentences for willful injury causing bodily injury and domestic abuse assault by impeding airflow—both class “D” felonies.  He maintains the sentencing court abused its discretion by placing more weight on negative factors and failing to consider properly the mitigating factors.  OPINION HOLDS: Jacobs has not established the sentencing court considered an inappropriate factor.  And although the court did not give the same weight to the factors that Jacobs emphasizes, the sentence imposed by the court was not based on grounds or for reasons clearly untenable, nor was its choice clearly unreasonable under the circumstances.  Thus, we affirm the sentence imposed by the district court.

Case No. 18-0244:  State of Iowa v. Jerrel E. Williams

Filed Jan 09, 2019

View Opinion No. 18-0244

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.  Opinion by Doyle, J.  (3 pages)

            Jerrel Williams appeals his conviction for possession with intent to deliver crack cocaine.  OPINION HOLDS: Substantial circumstantial evidence supports a finding that Williams had been in possession of the crack cocaine discovered on the floor of an apartment next to where Williams had been sitting.  Because sufficient evidence supports his conviction, we affirm.

Case No. 18-0266:  State of Iowa v. Donald Edward McIntyre

Filed Jan 09, 2019

View Opinion No. 18-0266

            Appeal from the Iowa District Court for Floyd County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (25 pages)

            Donald McIntyre appeals his conviction for robbery in the first degree.  He maintains (1) trial counsel provided ineffective assistance by failing to object to hearsay statements, to the admission of shoeprint evidence, to instances of prosecutorial misconduct, and to the definition of “armed” in a jury instruction; (2) the court erred in including language pertaining to a knife in the dangerous-weapon instruction; and (3) the trial court should have granted his motions for judgment of acquittal and for new trial based on the weight of the evidence.  OPINION HOLDS: McIntyre did not establish his claims for ineffective assistance, that there was insufficient evidence to instruct the jury the knife recovered at the scene meets the legal definition of a dangerous weapon, nor that the verdict is contrary to the weight of the evidence.  Thus, we affirm.  We preserve for postconviction relief his claims trial counsel was ineffective for failing to object to instances of hearsay testimony and the definition of “armed” within a jury instruction.

Case No. 18-0329:  State of Iowa v. Douglas Kent Smith

Filed Jan 09, 2019

View Opinion No. 18-0329

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (4 pages)

            Douglas Smith asserts his trial counsel provided ineffective assistance by allowing Smith to plead guilty to operating while intoxicated, third or subsequent offense, without a factual basis to support the plea.  OPINION HOLDS: The evidence in the record establishes a factual basis to support Smith’s guilty plea for operating a vehicle while intoxicated, third or subsequent offense.  Smith’s claim of ineffective assistance fails, and we affirm.

Case No. 18-0367:  State of Iowa v. Dylan Daniel Millard

Filed Jan 09, 2019

View Opinion No. 18-0367

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

            Dylan Millard appeals the five-year sentence imposed on his conviction for possession of marijuana with intent to deliver, arguing the district court abused its discretion in denying his request for a suspended sentence and probation.  OPINION HOLDS: Substantial evidence supports the sentence imposed by the district court, and the court properly applied the law in imposing it.  Accordingly, the district court acted within its discretion in imposing Millard’s sentence, and we affirm.

Case No. 18-0440:  State of Iowa v. Monte Allen Apfel

Filed Jan 09, 2019

View Opinion No. 18-0440

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar and Bradley J. Harris, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (8 pages)

            Monte Apfel appeals his convictions for five drug charges.  OPINION HOLDS: We find the traffic stop, investigation, dog sniff, and search did not violate Apfel’s constitutional rights.  We affirm the district court’s denial of Apfel’s motion to suppress.

Case No. 18-0473:  Judith K. Buckner and Mark A. Buckner v. Great Southern Bancorp, Inc., d/b/a Great Southern Bank, A Missouri Corporation

Filed Jan 09, 2019

View Opinion No. 18-0473

            Appeal from the Iowa District Court for Scott County, Henry W. Latham, II, Judge.  REVERSED AND REMANDED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            In this interlocutory appeal, Great Southern Bancorp, Inc., d/b/a Great Southern Bank (“Great Southern”) challenges the district court’s denial of its pre-answer motion to dismiss Judith and Mark Buckner’s personal injury action for failure to serve process.  OPINION HOLDS: We conclude the order extending the time for service was not supported by good cause, and because the extension order was unsupported by good cause, it could not serve as the basis for denying Great Southern’s motion to dismiss.  We therefore reverse the order denying Great Southern’s motion to dismiss and remand for dismissal of the petition.

Case No. 18-0510:  In re the Marriage of Jacobs

Filed Jan 09, 2019

View Opinion No. 18-0510

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED AS MODIFIED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Doyle, J.  (10 pages)

            Catherine Jacobs appeals the economic provisions of the decree dissolving her marriage to Carl Jacobs.  OPINION HOLDS: We modify the decree to ensure the parties share the risk that the Florida property will not sell for an amount that allows them to obtain a full return on their down-payment contributions and reduce the amount of Carl’s reimbursement for his share of the down payment on the Sioux City property from $27,500 to $10,000.  We decline to consider Carl’s gambling losses in determining an equitable property division.  The district court did not abuse its discretion in declining to award Catherine her trial attorney fees.

Case No. 18-0578:  Keisha L. Magee v. State of Iowa

Filed Jan 09, 2019

View Opinion No. 18-0578

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Keisha Magee appeals the denial of her application for postconviction relief claiming counsel committed structural errors or otherwise provided ineffective assistance of counsel.  OPINION HOLDS: We find Magee has not established structural error occurred during the postconviction trial and her ineffective-assistance claims brought on appeal for the first time should be asserted in a separate application.  We affirm the district court.

Case No. 18-0590:  Estate of Jill A. Jordan v. Iowa Medicaid Enterprise Estate Recovery Program

Filed Jan 09, 2019

View Opinion No. 18-0590

            Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.  AFFIRMED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            An estate appeals from the district court’s order granting summary judgment in favor of the Iowa Department of Human Services on the estate’s petition for declaratory judgment regarding the payment of an annuity.  OPINION HOLDS: On Jill Jordan’s death, the remaining annuity balance became the personal property of the department as the “100% primary beneficiary.”  The balance was never a probate asset subject to Iowa Code section 633.425 (2017).  The district court did not err in granting the department’s motion for summary judgment.

Case No. 18-0651:  State of Iowa v. Katrina Nikole Cooper

Filed Jan 09, 2019

View Opinion No. 18-0651

            Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (4 pages)

            Katrina Nikole Cooper appeals a judgment and sentence for delivery of more than five grams of methamphetamine, contending (1) the evidence was insufficient to support the district court’s finding of guilt following a bench trial, (2) her trial attorney was ineffective in failing to challenge the standard used by the district court in evaluating her new trial motion, and (3) her trial attorney was ineffective in failing to challenge her waiver of the right to a jury trial as unknowing and involuntary.  OPINION HOLDS: Substantial evidence supports the district court’s finding of guilt.  We preserve Cooper’s ineffective-assistance-of-counsel claim with regard to her jury trial waiver for postconviction relief. 

Case No. 18-0729:  In re the Marriage of Rockwell

Filed Jan 09, 2019

View Opinion No. 18-0729

            Appeal from the Iowa District Court for Cerro Gordo County, Christopher C. Foy, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J.  (16 pages)

            Nathan Rockwell appeals a decree dissolving his marriage to Heather Rockwell.  He argues the district court erred in: (1) including part of a business in the marital estate, (2) declining to include alleged liabilities in the marital estate, (3) deciding the physical care issue before hearing all of the evidence, (4) misjudging the credibility of the parties and failing to consider Heather’s alienating conduct in reaching its physical care determination, (5) crafting the visitation schedule, and (6) declining to reopen the record after trial.  Heather requests an award of appellate attorney fees.  OPINION HOLDS: We affirm the decree dissolving the parties’ marriage in its entirety.  We decline to award appellate attorney fees.  Costs on appeal are assessed to Nathan. 

Case No. 18-0756:  State of Iowa v. Jonah Craig Chinn

Filed Jan 09, 2019

View Opinion No. 18-0756

            Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            Jonah Chinn appeals his conviction, following a guilty plea, of operating while intoxicated, third offense.  He argues his counsel was ineffective in relation to his guilty plea.  OPINION HOLDS: We find the record inadequate to consider Chinn’s claim on direct appeal.  Consequently, we affirm Chinn’s conviction, but preserve his claim of ineffective assistance of counsel for possible postconviction-relief proceedings.

Case No. 18-0795:  Troy Hack v. Brett Edwards, Edwards Automotive

Filed Jan 09, 2019

View Opinion No. 18-0795

Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (12 pages)

            Brett Edwards appeals the district court’s denial of his challenge to the validity of an out-of-state judgment.  OPINION HOLDS: The district court erred in concluding the issue of personal jurisdiction must be determined by the Texas court.  Because Troy Hack failed to establish Brett Edwards was served with notice of the Texas lawsuit or had any contacts with the state of Texas, we reverse and remand for entry of an order vacating the foreign judgment against Brett Edwards. 

Case No. 18-0818:  State of Iowa v. Angelia Maurice Schultz

Filed Jan 09, 2019

View Opinion No. 18-0818

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge, and Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Angelia Schultz appeals following her guilty plea to operating a motor vehicle while intoxicated (third offense), contending her attorney was ineffective in allowing her to plead guilty.  OPINION HOLDS: On our de novo review, we conclude counsel did not breach an essential duty in failing to demand a plea conditioned on the court’s concurrence.  We affirm.

Case No. 18-0826:  P&C Sierra, L.L.C., Paul Sierra and Corinne Sierra v. John M. Carroll

Filed Jan 09, 2019

View Opinion No. 18-0826

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Doyle, J.  (4 pages)

            The plaintiffs appeal from the district court order granting summary judgment in favor of the defendant on their legal-malpractice claims.  OPINION HOLDS: The record shows the plaintiffs suffered an actual and nonspeculative injury more than five years before they filed their legal-malpractice action.  Because the action was untimely, the district court properly granted summary judgment in favor of the defendant. 

Case No. 18-0844:  Michael Alon Davis v. State of Iowa

Filed Jan 09, 2019

View Opinion No. 18-0844

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

            Michael Davis appeals the dismissal of his fourth postconviction-relief application.  OPINION HOLDS: Because Davis’ claims were not properly raised, we affirm the district court’s dismissal of Davis’ fourth postconviction-relief application.  

Case No. 18-0876:  State of Iowa v. Greg Mitchell Redden

Filed Jan 09, 2019

View Opinion No. 18-0876

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Doyle, J.  (5 pages)

            Greg Redden appeals after pleading guilty to operating while intoxicated, assault on a peace officer, and second-degree criminal mischief.  OPINION HOLDS: I. Because Redden’s statements at the plea hearing provide a sufficient factual basis to support his criminal-mischief plea, he has failed to show his counsel was ineffective in allowing him to plead guilty.  II. The sentencing court did not violate Redden’s rights of personal presence and allocution at sentencing on his convictions for OWI and assault on a peace officer where his written guilty pleas plainly and unambiguously waived those rights.

Case No. 18-0883:  Dustin Robbins v. State of Iowa

Filed Jan 09, 2019

View Opinion No. 18-0883

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED. Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (3 pages)

            Dustin Robbins appeals the district court’s denial of his application for postconviction relief.  OPINION HOLDS: Robbins’s trial attorney did not provide ineffective assistance of counsel.

Case No. 18-1195:  In the Interest of T.G., Minor Child

Filed Jan 09, 2019

View Opinion No. 18-1195

            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 McDonald, J.  (8 pages)

            A mother and father each appeal the termination of their respective parental rights in their child.  OPINION HOLDS: Clear and convincing evidence supported termination of both parents’ parental rights.  Termination is in the child’s best interest, and the mother’s bond with the child is not so strong as to preclude termination of her parental rights.

Case No. 18-1232:  In the Interest of L.V., M.V., and L.V., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1232

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (7 pages)

            The mother and father separately appeal the termination of their parental rights to their minor children, L.V.1, M.V., and L.V.2.  Both argue termination is not in the best interests of the children and the State failed to provide adequate services to both parents.  OPINION HOLDS: We find neither argument precludes termination and affirm.

Case No. 18-1384:  In the Interest of E.M., E.M., and J.M., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1384

            Appeal from the Iowa District Court for Buchanan County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (5 pages)

            A father and mother each appeal a juvenile court order terminating their parental rights.  OPINION HOLDS:  We find there is sufficient evidence in the record to support termination and termination is in the children’s best interests.  We affirm the juvenile court’s decision.

Case No. 18-1552:  In the Interest of D.H., Minor Child

Filed Jan 09, 2019

View Opinion No. 18-1552

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            A mother appeals the termination of her parental rights in her child.  OPINION HOLDS: The trial court correctly found by clear and convincing evidence that the child could not be returned to the mother at the time of the termination hearing.  The trial court was correct in denying the mother an additional six months for reunification.  Termination of the mother’s parental rights was in the best interest of the child.

Case No. 18-1555:  In the Interest of Y.M., L.M., R.C., J.C., and R.C., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1555

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

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find termination is in the children’s best interests and no exceptions apply.  We affirm the juvenile court.

Case No. 18-1618:  In the Interest of J.D., T.D., C.D., D.D., and E.R., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1618

            Appeal from the Iowa District Court for Montgomery County, Amy L. Zacharias, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (8 pages)

            A mother appeals the termination of her parental rights to her children.  OPINION HOLDS: Because the children could not be returned to the mother’s care at the time of the termination hearing, the grounds for termination pursuant to Iowa Code section 232.116(1)(f) (2018) have been met.  The evidence shows that termination is in the children’s best interests, and we decline to apply the exception to termination provided in section 232.116(3)(c).  The State made reasonable efforts to reunify the family, and we decline to delay termination an additional six months.  Accordingly, we affirm.

Case No. 18-1872:  In the Interest of K.P. and A.B., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1872

            Appeal from the Iowa District Court for Monroe County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  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 children.  The father appeals the termination of his rights in his child.  OPINION HOLDS: Sufficient evidence supports the statutory ground authorizing the termination of the mother’s parental rights.  Termination of both parents’ rights is in the best interest of the children.

Case No. 18-1905:  In the Interest of A.S.-M. and A.C., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1905

            Appeal from the Iowa District Court for Linn County, Susan F. Flaherty, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A mother appeals the termination of her parental rights to two children.  The father of one of the children appeals the termination of his parental rights.  Both parents argue the State did not prove the statutory grounds for termination and they should be given additional time to work toward reunification.  OPINION HOLDS: Because of the parents’ failure to address the issues of substance abuse, domestic violence, and mental health disorders that led to the initial removal, the State showed by clear and convincing evidence the children could not be returned to either parent at the time of the termination hearing due to a risk of further harm.  The parents’ history and recent circumstances served to show an extension of six months was not warranted.  We affirm on both appeals. 

Case No. 18-1958:  In the Interest of C.T., R.T., and C.T., Minor Children

Filed Jan 09, 2019

View Opinion No. 18-1958

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

            A father appeals the order terminating his parental rights to three children.  He contends the State did not prove the children could not be returned to him at the present time and their best interests required not terminating his rights.  OPINION HOLDS: The father failed until very recently to address his substance-abuse and domestic-violence issues; he does not currently live in his own home and continues to associate with active drug users.  On this record, we conclude he cannot resume care of the children.  The evidence supports this conclusion by clear and convincing evidence.  In addition, the children’s best interests are served by severing the parental relationship.  We affirm. 

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