February 2024 Archive | Most Recent Court of Appeals Summaries

            Appeal from the Iowa District Court for O’Brien County, David C. Larson, Judge.  AFFIRMED.  Considered by Greer, P.J., Buller, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Carlos Martin Sebastian appeals his conviction for operating while intoxicated, challenging the denial of his motion to suppress certain evidence.  OPINION HOLDS: The arresting deputy reasonably conveyed the implied consent warnings to Martin Sebastian before he submitted to chemical testing.  To the extent that Martin Sebastian challenges the admissibility of field sobriety test results, his arguments go to the weight of the results, not the admissibility.  The district court correctly denied the motion to suppress.

            Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Greer, P.J., Chicchelly, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (15 pages)

            Randy Cue appeals the denial of his applications for DNA profiling and postconviction relief.  OPINION HOLDS: Cue has not established his trial and appellate counsel provided ineffective assistance, and his application did not meet the requirements for the court to order further DNA testing.  We affirm.

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A defendant appeals his conviction for robbery in the second degree.  He contends the State offered insufficient evidence to prove the assault or threat alternative of robbery.  OPINION HOLDS: Viewing the evidence in the light most favorable to the State, we find the record contains sufficient evidence to support the conviction.  Thus, we affirm.

            Appeal from the Iowa District Court for Winneshiek County, Laura Parrish, Judge.  SENTENCE AFFIRMED AND REMANDED WITH DIRECTIONS.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Greer, J.  (8 pages)

            Trisha Kountkofsky appeals the restitution order requiring her to pay victim pecuniary damages and category “B” restitution.  OPINION HOLDS: The sentencing court listed incorrect code sections in its restitution order, and we remand with directions to enter a nunc pro tunc order correcting those errors.  We do not address the entry of victim pecuniary damages as Kountkofsky did not exhaust her remedies for challenging them in the district court, and we affirm the category “B” restitution determination as Kountkofsky failed to file a financial affidavit and waived her right to a hearing on her reasonable ability to pay.

            Appeal from the Iowa District Court for Dallas County, Richard B. Clogg, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.  Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Bower, C.J.  Concurrence in part and dissent in part by Ahlers, J. (19 pages)

            Jeff Osborne appeals the district court’s property distribution, valuation, and tax liability assignment following entry of a dissolution decree.  Jaime Ocean cross-appeals the spousal support award and property distribution in the decree.  OPINION HOLDS: We find the property distribution, valuations, and tax liability assignment are equitable, modify the spousal support award, and affirm as modified. PARTIAL DISSENT ASSERTS:  I dissent in part because I find the property distribution to be inequitable and would value an IPERS account using the Benson formula when dividing the parties’ assets.  As my concurrence with the majority’s modification of the spousal-support award is contingent on also modifying the property division as I proposed, I also dissent as to the change to the spousal-support award.  However, I concur with the majority’s decision to deny the cross-appeal challenging the dissolution decree’s life insurance provision.

            Appeal from the Iowa District Court for Story County, John J. Haney, Judge.  AFFIRMED.  Heard by Bower, C.J., Buller, J., and Gamble, S.J.  Opinion by Buller, J. (11 pages)

            A criminal defendant appeals his convictions for murder in the first degree and child endangerment resulting in death.  OPINION HOLDS: Because substantial evidence supports the convictions, we affirm.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Greer, J. (11 pages)

            Antonio Kitch appeals the sentences imposed following his guilty plea to neglect or abandonment of a dependent person and Alford plea to child endangerment resulting in bodily injury.  OPINION HOLDS: The sentencing court considered individual circumstances and factors related to Kitch and did not rely on a fixed sentencing scheme.  Although the court made comments about its belief in God, that belief did not influence the sentences imposed.  The court did consider mitigating factors and was not required to list all mitigating factors considered.  For these reasons, we affirm.

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Schumacher, P.J., and Ahlers and Langholz, JJ.  Opinion by Ahlers, J.  (10 pages)

            Angela Vargas and Mitchell Crawford, as parents and next friends of their child, appeal the district court’s ruling granting the defendants’ motion for directed verdict in this medical malpractice case.  The appellants argue they presented substantial evidence to support their claim for lost chance of a better outcome.  OPINION HOLDS: Assuming without deciding that Iowa recognizes a cause of action for lost chance of a better outcome, we conclude the plaintiffs failed to present substantial evidence to warrant submission of the claim to the jury.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Tabor, P.J., Buller, J., and Mullins, S.J.* Opinion by Buller, J.  (11 pages)

            A claimant appeals from judicial review following denial of his workers’ compensation claim, asserting the commissioner and district court erred in their interpretation of Iowa’s private-employer drug-testing law and the presumptions afforded positive drug tests under the workers’ compensation statute.  OPINION HOLDS: Because we find the district court and commissioner correctly interpreted the statutes and substantial evidence supports the commissioner’s factual determinations, we affirm.

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  (7 pages)

            Daniel Murillo appeals the denial of his application to modify sex offender registry requirements, claiming the court erred in determining he did not satisfy one of the threshold requirements for modification and abused its discretion in otherwise concluding modification should not occur.  OPINION HOLDS: Finding no legal error or abuse of discretion, we affirm the district court’s denial of Murillo’s application to modify.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Heard by Bower, C.J., Chicchelly, J., and Doyle, S.J.  Opinion by Chicchelly, J.  (8 pages)

            Janelle Wilcox appeals the denial of her petition for judicial review of final agency action, challenging the denial of her request to add stand-alone transportation services to the monthly budget she receives through a home- and community-based services Medicaid waiver program.  OPINION HOLDS: Because the agency reached the correct result by affirming the denial of Wilcox’s request, we affirm the denial of her petition for judicial review.

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge. AFFIRMED.  Considered by Bower, C.J., and Buller and Langholz, JJ.  Opinion by Bower, C.J.  (6 pages)

            John Davis appeals the district court’s dismissal of thirteen claims related to fraudulent transfer of real property and conversion of personal property against Christine Frank, Tristan Frank, and Does 1–30.  OPINION HOLDS: Error was not preserved on the issue of the applicability of the doctrine of equitable estoppel, and claims related to the 2014 transfer of property are barred by Iowa Rule of Civil Procedure 1.943.

            Appeal from the Iowa District Court for Floyd County, Colleen Weiland, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Chicchelly, J.  (3 pages)

            Douglas Kent Lindaman appeals the denial of postconviction relief from his conviction for assault with intent to commit sexual abuse.  OPINION HOLDS: Because assault with intent to commit sexual abuse is a lesser-included offense of third-degree sexual abuse and the State charged Lindaman with third-degree sexual abuse within the limitations period, we affirm the denial of postconviction relief.

            Appeal from the Iowa District Court for Des Moines County, Clinton R. Boddicker, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Tabor, P.J. (6 pages)

            A defendant challenges his sentence for enticing a minor.  OPINION HOLDS: Because the court properly relied on the pertinent sentencing factors, we find no abuse of discretion.  Thus, we affirm.

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL AND REMANDED.  Considered by Bower, C.J., and Schumacher and Langholz, JJ.  Opinion by Bower, C.J.  (13 pages)

            Carlos Wakely appeals spousal support and attorney fee awards following entry of a dissolution decree.  Angela Wakely cross-appeals the district court’s: (i) reduction of spousal support; (ii) amendment to the visitation schedule; and (iii) decision to grant the child tax dependency exemption to both parties on an alternating basis.  OPINION HOLDS: The district court properly awarded Angela spousal support and attorney fees at the district court level.  In its order on the motion to amend, enlarge, or reconsider, the district court incorrectly: (i) decreased the amount of spousal support and (ii) amended the visitation schedule without considering the best interests of the children.  We modify the decree in those respects and remand for calculation of child support under the child support guidelines.

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  Langholz, J., takes no part.  (7 pages)

            Michael Lajeunesse appeals the dismissal of his petition for mandamus against the Iowa Board of Medicine for failure to state a claim upon which any relief could be granted and the denial of his motion for permissive joinder of his postconviction-relief attorney as a defendant.  OPINION HOLDS: We affirm dismissal of Lajeunesse’s mandamus petition and the denial of his motion for permissive joinder. 

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

            T.M. challenges his delinquency adjudication on the grounds that the juvenile court erred in admitting certain testimony from his father and that insufficient evidence supported the finding that he committed a delinquent act.  OPINION HOLDS: We decline to consider the evidentiary challenge, choosing to conduct our de novo review for the sufficiency of the evidence without considering the challenged evidence.  Following that de novo review, we find sufficient evidence supports the delinquency adjudication.

            Appeal from the Iowa District Court for Fremont County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Chicchelly, J.  (8 pages)

            Carson and Trisha Cusick challenge the enforcement of the settlement agreement between them and Adrienne and Brian Cooper.  OPINON HOLDS:  Because the district court did not err when enforcing the settlement agreement, we affirm.

            Appeal from the Iowa District Court for Hancock County, Colleen Weiland, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  (10 pages)

A defendant appeals his conviction for sexual abuse in the third degree, claiming the evidence was insufficient to support the conviction because his out-of-court admission was not sufficiently corroborated.  OPINION HOLDS: Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences in the State’s favor, we find there is sufficient “other proof” linking the defendant to the crime and corroborating his admission.  We accordingly affirm his conviction.  

            Appeal from the Iowa District Court for Union County, Elisabeth Reynoldson, Judge.  AFFIRMED AND REMANDED WITH DIRECTIONS TO DETERMINE ATTORNEY FEES.  Considered by Bower, C.J., and Buller and Langholz, JJ.  Opinion by Buller, J.  (5 pages)

            A father appeals an ordered child-care variance from the child-support guidelines.  The mother requests appellate attorney fees.  OPINION HOLDS: We affirm the variance, order the father to pay the mother’s reasonable appellate attorney fees, and remand for the district court to determine a reasonable amount.

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Schumacher and Langholz, JJ.  Opinion by Schumacher, J.  (8 pages)

            Adam Wuebker appeals from the grant of summary judgment for the defendants concerning a claim for interference with contractual relations.  OPINION HOLDS: We determine the district court did not err in granting summary judgment, and we affirm.

            Appeal from the Iowa District Court for Muscatine County, Tamra Roberts, Judge. AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS. Considered by Bower, C.J., and Schumacher and Langholz, JJ.  Opinion by Schumacher, J.  (9 pages)

            Petitioner appeals the district court order modifying the child support obligation established in the parties’ dissolution decree.  OPINION HOLDS: The district court order improperly determined the child support obligation using a formula presuming joint physical care.  We find the noncustodial parent is responsible for support.  The requirement to share the children’s expenses other than the uncovered medical expenses is eliminated.  Neither party is awarded appellate attorney fees.  We affirm the district court’s order as modified and remand with instructions for entry of an order consistent with this opinion.

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Heard by Schumacher, P.J., and Ahlers and Langholz, JJ.  Opinion by Langholz, J.  (13 pages)

            Charles Nichols appeals from the district court’s dismissal of his marriage dissolution petition for failing to prove a common-law marriage with Mary Molloy Mauro.  OPINION HOLDS:  While Nichols has much evidence on his side, he has not carried his burden to prove a common-law marriage.  On balance, the parties’ shifting assertions of married and single status in various contexts reflect an intent to serve their personal convenience or financial benefit—not a present intent and agreement to be married.  Given the close merits of this appeal and the relative financial circumstances of the parties, we decline Molloy Mauro’s request for appellate attorney fees.

            Appeal from the Iowa District Court for Appanoose County, Greg Milani, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Chicchelly, J. (6 pages)

            David Duane Boley appeals his convictions and sentences on charges of sexual abuse and incest, contending there is insufficient evidence supporting his convictions and the trial court abused its discretion when sentencing.  OPINION HOLDS: Because substantial evidence supports the verdicts, we affirm his convictions.  But because the trial court abused its discretion when imposing fines, we vacate this portion of the sentence and remand for limited resentencing on this issue.

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

            An adoptive mother appeals the termination of her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the adoptive mother’s parental rights.  Also, termination of her parental rights is in the best interests of the child.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Badding and Buller, JJ.  Opinion by Tabor, P.J.  (10 pages)

            A mother and father separately appeal the termination of their parental rights to their two children.  OPINION HOLDS: Because the State proved grounds for termination by clear and convincing evidence and termination is in the best interests of D.D. and L.D., we affirm.  We also do not find an exception for a bond, nor do we grant the father’s request to defer permanency for six months.  We affirm on both appeals.

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Greer, P.J., and Schumacher and Ahlers, JJ.  Opinion by Ahlers, J.  Special Concurrence by Greer, P.J.  (12 pages)

            A mother and father separately appeal the termination of their respective parental rights to their child.  Both argue the Iowa Department of Health and Human Services failed to make reasonable efforts toward reunification and termination is not in the child’s best interests due to the strength of the parent-child bonds.  OPINION HOLDS: The department made reasonable efforts to facilitate reunification.  Termination is in the child’s best interests, and neither parent established a parent-child bond strong enough to forgo termination.  SPECIAL CONCURRENCE ASSERTS: I believe that the mother properly preserved her argument that the department failed to provide reasonable efforts when it provided her with a bus pass in light of her trauma with riding the bus system.  But, because the failure to address the issue with the bus pass did not impact the mother’s visitations, I agree with the majority that we should affirm the termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Poweshiek County, Richelle Mahaffey, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Badding and Buller, JJ.  Opinion by Badding, J.  (9 pages)

            Parents separately appeal the termination of their parental rights to five children under Iowa Code section 232.116(1)(f) and (h) (2023).  The mother argues termination was contrary to the children’s best interests, she is “bonded with the children,” and “[a]dditional time would have allowed [her] to obtain permanent housing and employment.”  The father argues the lack of visitation-related services after the parents moved to Illinois shortly before the termination hearing constituted a failure to make reasonable efforts at reunification.  OPINION HOLDS: We affirm the termination of the parents’ parental rights.

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

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm.

            Appeal from the Iowa District Court for Marion County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Greer, J.  (18 pages)

            Michelle Boat appeals her conviction and sentence for murder in the first degree.  OPINION HOLDS: The district court did not abuse its discretion in denying Boat’s motion to strike a potential juror for cause or in denying her motion for mistrial based on prosecutorial error.  The court also did not err in considering Boat’s assets that are exempt from execution when determining her reasonable ability to pay category “B” restitution.  Therefore, we affirm.

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Badding and Buller, JJ.  Opinion by Badding, J.  (20  pages)

            A defendant appeals his criminal convictions raising double jeopardy, insufficient evidence, and evidentiary claims.  OPINION HOLDS: We affirm the defendant’s convictions, concluding his rights against double jeopardy were not violated and substantial evidence supported the jury’s verdict finding him guilty of attempt to commit murder.  As for the claimed evidentiary errors, we find no prejudice by the admission of the child’s drawings, error was not preserved on the objection to the forensic interviewer’s testimony, and the photographs showing the victim’s injuries were not so unfairly prejudicial as to outweigh their probative value. 

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Schumacher, P.J., Badding, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (5 pages)

            Joshua Mitchell appeals the denial of his second application for postconviction relief after pleading guilty to two counts of second-degree sexual abuse.  OPINION HOLDS: Mitchell is barred from relitigating his challenge to the knowing and intelligent nature of his guilty pleas, and he has not met his burden of showing actual innocence. 

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED.  Heard by Bower, C.J., and Tabor and Chicchelly, JJ.  Opinion by Chicchelly, J.  Langholz, J., takes no part.  (12 pages)

            On interlocutory appeal of the order denying its motion for partial summary judgment, the State contends the district court erred by finding a document signed by Katherine Avenarius did not express a clear intent to waive personal injury claims resulting from the defendant’s negligence.  OPINION HOLDS:  Because the document does not express an intent to release the State from liability for claims related to its own negligent acts, either in the express language used or the context provided, the district court properly denied the State’s motion for partial summary judgment.

            Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert, Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Greer, P.J.  (12 pages)

            Anthony Stock appeals his convictions for first-degree burglary, first-degree robbery, conspiracy to commit a forcible felony, and going armed with intent, challenging the sufficiency of the evidence underlying the convictions and the district court’s denial of his motion for a mistrial.  OPINION HOLDS: Because we find substantial evidence supports the convictions and Stock failed to object and preserve error on his motion for a mistrial, we affirm.

            Appeal from the Iowa District Court for Plymouth County, Jeffrey L. Poulson, Jeffrey A. Neary, and Patrick H. Tott, Judges.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Tabor, P.J., and Badding and Buller, JJ.  Opinion by Tabor, P.J.  (21 pages)

            Justin Lee Borchers appeals his convictions for introducing controlled substances into a jail and possession of controlled substances.  He contends there was insufficient evidence that he introduced the substances into the jail; his waiver of counsel was not knowing, intelligent, and voluntary; the court should have granted his motion to suppress; the court should have ordered a competency evaluation; and the court should have found him incompetent to represent himself.  OPINION HOLDS: We find substantial evidence does not support his convictions for introducing substances into the jail.  We reverse and remand for dismissal of those charges.  But because his other claims fail, we affirm his convictions for possession of controlled substances.  We also remand for resentencing on the remaining convictions.

            Appeal from the Iowa District Court for Appanoose County, Lucy J. Gamon, Judge.  AFFIRMED.  Heard by Bower, C.J., and Buller and Langholz, JJ.  Opinion by Bower, C.J.  (9 pages)

            Matthew Steen appeals the district court’s ruling granting Mallory Logston physical care and the dependency tax exemption and setting his visitation rights.  OPINION HOLDS: Upon our review, we affirm.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Chicchelly, J. (11 pages)

            Gustavo Huerta appeals his convictions and sentences after a jury found him guilty of sexual exploitation of a minor and enticing a minor.  OPINION HOLDS: I. Substantial evidence supports the finding that Huerta exchanged messages with a person under the age of sixteen, supporting his conviction for enticing a minor.  Substantial evidence also supports a finding that Huerta caused or attempted to cause a minor to engage in the display of nudity, supporting his conviction for sexual exploitation of a minor.  Because substantial evidence supports his sexual-exploitation conviction under both theories alleged by the State, we do not address Huerta’s constitutional challenge to Iowa Code section 814.28 (2020).  II. The district court exercised its discretion in sentencing Huerta to consecutive sentences.

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Tabor, P.J.  (12 pages)

            A defendant appeals his conviction for possession of marijuana.  OPINION HOLDS: Because the court denied Willform his right to self-representation guaranteed by the Sixth Amendment, we must reverse and remand for a new trial on his conviction for marijuana possession. 

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Gary Wise appeals the denial of his application for postconviction relief.  He argues trial counsel provided ineffective assistance because he investigated no defense and “bullied” Wise into waiving a jury trial.  Wise also alleges that he was prejudiced by the subpar performance of his postconviction-relief counsel.  OPINION HOLDS: Wise failed to show that trial counsel breached a material duty in the criminal case and failed to show postconviction-relief counsel’s performance resulted in prejudice in those proceedings.  So we affirm the denial of relief. 

            Appeal from the Iowa District Court for Polk County, Michael Huppert, Judge.  AFFIRMED.  Considered by Schumacher, P.J., Ahlers, and Potterfield, S.J.* Opinion by Schumacher, P.J.  (7 pages)

            An applicant appeals the denial of his application for postconviction relief, arguing ineffective assistance of counsel.  OPINION HOLDS: Because we conclude that the applicant’s trial counsel did not breach an essential duty and the applicant cannot demonstrate prejudice, we affirm.

            Appeal from the Iowa District Court for Crawford County, Zachary Hindman, Judge.  AFFIRMED.  Considered by Greer, P.J., Ahlers, J., and Blane, S.J.  Opinion by Blane, S.J.  (7 pages)

            Matthew Oney appeals the jury’s guilty verdicts claiming there is insufficient evidence to identify him as the perpetrator.  OPINION HOLDS: We find substantial evidence supports the jury’s verdicts and affirm.

            Appeal from the Iowa District Court for Adair County, Scott J. Beattie, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Chicchelly, J. (6 pages)

            Elijah Daniel Davis appeals his conviction and sentence, contending that there is insufficient evidence supporting his conviction for homicide by vehicle and the district court abused its discretion when sentencing him for child endangerment.  OPINION HOLDS: Because substantial evidence supports the verdict, we affirm his conviction for homicide by vehicle.  But because the district court abused its discretion when imposing the fine for child endangerment, we vacate this portion of the sentence and remand for resentencing on this issue.

No. 22-2040   STATE v. BARNES

            Appeal from the Iowa District Court for Polk County, Coleman McAllister, Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Buller, J. (3 pages)

            A criminal defendant appeals his sentence following conviction for eleven burglary-related offenses.  OPINION HOLDS: The district court considered its sentencing options before imposing a term of imprisonment and did not abuse its discretion.

            Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.  AFFIRMED.  Considered by Greer, P.J., and Schumacher and Ahlers, JJ.  Opinion by Greer, P.J.  (18 pages)

            Sunny Sandry appeals the district court’s decision on judicial review affirming the Iowa Public Employment Relations Board’s (PERB) ruling finding just cause to support her termination from employment with the Iowa Department of Transportation.  OPINION HOLDS: The standard of review here is for whether the agency’s application of law to fact was irrational, illogical, or wholly unjustifiable.  Applying that standard of review, we find that substantial evidence supports the finding that Sandry’s took money from the state and therefore just cause existed for her termination.  As the appellee, PERB did not waive its arguments on appeal by joining in intervenor Department of Administrative Services’s brief, and we affirm.

            Appeal from the Iowa District Court for Davis County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Langholz, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A father appeals the denial of his motion to quash an income-withholding order entered by the Child Support Recovery Unit.  OPINION HOLDS: Because the father did not preserve error on his challenges to the district court’s denial of his motion to quash that order, we affirm without reaching the merits of his claims.

            Appeal from the Iowa District Court for Black Hawk County, Brook Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J.  (8 pages)

            A defendant appeals his convictions for child endangerment and domestic abuse assault, second offense.  The defendant argues the district court abused its discretion in (1) admitting audio recordings of two 911 phone calls; (2) allowing opinion testimony by a police officer that the defendant’s wife was not cooperative; (3) overruling an objection to rebuttal evidence; and (4) denying his for-cause challenge to a potential juror.  OPINION HOLDS: Because the defendant’s claims on appeal were either not preserved for our review or did not result in prejudice, we affirm his convictions.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  REVERSED AND REMANDED WITH DIRECTIONS.  Heard by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Greer, P.J.  (28 pages)

            Graphite Construction Group, Inc. (Graphite Construction), the principal contractor on a public construction project, appeals the district court’s ruling that it was not yet due part of the retainage being held by the owner of the project, Des Moines Area Community College (DMACC).  OPINION HOLDS: Because Graphite Construction’s request for release of the full value of the surety bond from the retainage fund was timely and appropriate under Iowa Code section 573.16(2) (2022), and because DMACC cannot rely on section 573.28 to withhold some retainage based on the value of uncompleted labor and materials, we reverse the decision of the district court and remand for an order granting payment from the retention fund in the amount of $82,627.78, plus interest as provided by section 573.16(2).  We deny the request to award attorney fees to Graphite Construction.

            Appeal from the Iowa District Court for Madison County, Martha L. Mertz, Judge.  AFFIRMED ON APPEAL; REVERSED ON CROSS-APPEAL.  Heard by Schumacher, P.J., and Ahlers and Langholz, JJ.  Opinion by Ahlers, J.  (13 pages)

            A lifetime beneficiary of a trust appeals the denial of his application for distribution, seeking distribution of remaining 2018 trust net income and a portion of the principal.  Trust remaindermen cross-appeal an order for the trust to pay a portion of the lifetime beneficiary’s attorney fees.  OPINION HOLDS: There is no remaining 2018 net income to distribute, and the trustee did not abuse his discretion when he denied the lifetime beneficiary’s request for a principal distribution.  Accordingly, we affirm on direct appeal.  The district court erred by concluding Iowa Code section 633A.4507 (2019) authorized payment of a portion of the lifetime beneficiary’s attorney fees because the attorney’s efforts did not involve administration of the trust.  Therefore, we reverse on cross-appeal.

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Greer, P.J.  (6 pages)

            David Bradford appeals the dismissal of his third application for postconviction relief (PCR).  OPINION HOLDS: Because Bradford already raised and we already decided his claim of ineffective assistance of trial counsel in his first PCR action and it does not qualify under the ground-of-fact-or-law exception, we affirm the PCR court.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Ahlers, J.  (8 pages)

            An employer appeals the district court’s denial of its petition for judicial review, challenging the workers’ compensation commissioner’s ruling that its employee provided timely notice of a workplace injury.  OPINION HOLDS: Because the commissioner’s ruling is supported by substantial evidence, we affirm.

            Appeal from the Iowa District Court for Pottawattamie County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Ahlers, J.  (11 pages)

            Bernard Fischer appeals the district court’s findings that his siblings did not breach their fiduciary duties as their mother’s agents pursuant to a power of attorney and that they rebutted the presumption of undue influence.  He also appeals the denial of his claim for attorney fees and asks for appellate attorney fees.  OPINION HOLDS: On our de novo review, we find that the agents did not breach their fiduciary duties and rebutted the presumption of undue influence.  The district court did not abuse its discretion in denying attorney fees, and we deny the claim for appellate attorney fees.

            Appeal from the Iowa District Court for Dallas County, Erica Crisp, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Opinion by Badding, J. (11 pages)

            A defendant appeals her convictions for operating while intoxicated, second offense, and child endangerment, challenging the sufficiency of the evidence supporting both convictions.  OPINION HOLDS: Because we find there is substantial evidence supporting the jury’s verdict, we affirm. 

            Appeal from the Iowa District Court for Dallas County, Terry Rickers, Judge.  AFFIRMED.  Heard by Schumacher, P.J., and Ahlers and Langholz, JJ.  Opinion by Schumacher, P.J.  (11 pages)

            Shad Baltimore appeals the district court decision finding the Dallas County Board of Supervisors (Board) did not act illegally by rezoning a portion of the property owned by Alternate Route Properties, LLC from agricultural to light industrial.  OPINION HOLDS: We find the Board was not required to amend the Dallas County Comprehensive Plan, the Board’s decision was consistent with the comprehensive plan, the Board did not engage in illegal spot zoning, and the Board acted reasonably.  We affirm the district court.

            Appeal from the Iowa District Court for Hardin County, John R. Flynn, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Badding and Chicchelly, JJ.  Buller, J., takes no part.  Opinion by Tabor, P.J. (9 pages)

            A defendant appeals two convictions for third-degree sexual abuse.  He seeks a new trial, alleging the district court should have excluded evidence of the sexual abuse underlying a conviction that we affirmed in his first appeal.  OPINION HOLDS: Because that evidence was admissible under Iowa Code section 701.11 (2022), we affirm.

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

            Janet Fielder, formerly known as Janet Merry, appeals the dissolution decree that denied her request for spousal support from Dan Merry.  She also seeks appellate attorney fees.  OPINION HOLDS: Due to the amount of assets awarded to the parties and the fact neither party is employed due to age, the court acted equitably in denying Janet’s request for spousal support.  Additionally, we deny Janet’s request for appellate attorney fees.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Gamble, S.J.  Opinion by Bower, C.J. (5 pages)

            Dennis Boone Jr. appeals the sentence imposed by the district court following his guilty plea to possession of a firearm as a felon.  OPINION HOLDS: Finding no abuse of discretion, we affirm.

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.  AFFIRMED.  Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.  Opinion by Ahlers, J.  (6 pages)

            A workers’ compensation claimant appeals the district court’s ruling on judicial review of the workers’ compensation commissioner’s determination that his claim was barred for untimely notice, arguing the commissioner improperly applied the discovery rule.  OPINION HOLDS: Because claimant did not provide his employer notice of his injury until almost a year after learning of his injury and that the injury was work-related, we affirm.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert and Lawrence P. McLellan, Judges.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Bower, C.J.  (4 pages)

            Cassi Bird appeals the sentence imposed by the district court following her guilty plea to possession of methamphetamine with intent to deliver and tax stamp violation.  OPINION HOLDS: Finding no abuse of discretion, we affirm.

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Greer, P.J., and Schumacher and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            Tyden Clark challenges his sentence following his guilty plea to robbery in the first degree, arguing the district court abused its discretion when weighing the relevant sentencing factors.  OPINION HOLDS: Because we find the district court did not abuse its discretion, we affirm.

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Greer, J.  (6 pages)

            Brandon Lyman appeals his sentence following his convictions for second-degree burglary, two counts of willful injury causing bodily injury, and second-degree attempted burglary.  OPINION HOLDS: The sentencing court did not err in considering Lyman’s character and propensity, the effect of the crimes on the community, and his chances of reform and treatment in imposing a term of incarceration rather than probation.  Therefore, finding no abuse of the sentencing court’s discretion, we affirm.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Schumacher and Langholz, JJ.  Opinion by Langholz, J.  (8 pages)

            Breck Briley appeals from an order modifying the placement of the parties’ only child from her physical care to the care of the child’s father, Austin Shepherd.  She also tries to appeal an award of trial attorney fees, and Shepherd requests appellate attorney fees.  OPINION HOLDS: Giving the district court’s factual findings the weight they deserve, we agree that placing the child with Shepherd is in the child’s best interests—particularly his interest in being supported to have a relationship with both parents.  Briley’s attempted challenge to the attorney-fee award is not properly before us because the district court did not make a final attorney-fee award in the only order that Briley appealed.  And we decline Shepherd’s request for appellate attorney fees.

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Schumacher, P.J., Ahlers, J., and Doyle, S.J.  Opinion by Schumacher, P.J.  (4 pages)

            Jessie Teah appeals the dismissal of his application for postconviction relief.  He argues equitable tolling should be applied to save his application from the statute of limitations.  OPINION HOLDS: Because we determine the applicant failed to preserve this issue with the district court, we affirm.

            Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Bower, C.J., and Buller and Langholz, JJ.  Opinion by Langholz, J.  (9 pages)

            Jerry Seuntjens and Seuntjens Farms appeal from an adverse judgment after a bench trial that Seuntjens breached his contract with RCB Porkers 4, LLC by refusing to pay the contracted price for manure from RCB Porker’s hog facility.  OPINION HOLDS: The parties’ contract is unambiguous that the manure price is based on “the commercial fertilizer rate”—not some private rate available only to Seuntjens.  So the district court correctly found that Seuntjens breached the contract when he refused to pay the price calculated based on the commercial rate obtained by RCB Porkers.

            Appeal from the Iowa District Court for Polk County, Tabitha Turner, Judge.  APPEAL DISMISSED.  Considered by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Buller, J.  (3 pages)

            A criminal defendant attempts to appeal his guilty plea.  OPINION HOLDS: Because the claim pursued is not yet ripe for adjudication, we dismiss his appeal.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Ackley, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Heard by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Chicchelly, J.  (18 pages)

            Matthew Kisting appeals the modification of the decree dissolving his marriage to Sara Bahl.  He challenges the decision to grant physical care of the parties’ children to Sara and contends the court interfered with his parental rights in violation of both the United States and Iowa Constitutions.  He also challenges the district court award of Sara’s trial attorney fees.  Finally, Sara requests an award of appellate attorney fees.  OPINION HOLDS: Because it is in the best interests of the children, we affirm the modification but vacate the portion designating Sara as the sole decision-maker for religious and educational matters.  We find the district court did not interfere with Matthew’s constitutional or parental rights.  Finally, we decline to consider Matthew’s challenge to Sara’s trial-attorney-fees award as premature, and we award Sara appellate attorney fees.

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Greer, P.J., and Ahlers and Buller, JJ.  Opinion by Buller, J.  (5 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Because we find one of the mother’s claims precluded, the child’s best interests support termination, and no permissive exception applies, we affirm.

            Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Bower, C.J.  (8 pages)

            A mother appeals the termination of her parental rights to her children, claiming termination is not in the children’s best interests and requesting a deferral of permanency or establishment of a guardianship as an alternative to termination.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Clinton County, Kimberly K. Shepherd, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Chicchelly, JJ.  Opinion by Greer, J.  (10 pages)

            A mother appeals the termination of her parental rights to her three children.  OPINION HOLDS: Because after our de novo review of the record we find that the children could not be safely returned to the mother’s custody at the time of the termination hearing and reliance on the permissive exception to order a guardianship is unwarranted, we affirm the termination of the mother’s parental rights.