2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (20 pages)

            Plaintiffs appeal the district court decision granting a directed verdict to defendant on their claims of fraud, breach of fiduciary duty, breach of contract, and promissory estoppel.  OPINION HOLDS: The district court found there was sufficient evidence to present a claim of breach of fiduciary duty to the jury except for the element of damages.  There was sufficient evidence of damages as to some of the plaintiffs, and the court erred by granting a directed verdict on breach of fiduciary duty as to them.  We reverse and remand on this issue.  We affirm the evidentiary ruling of the trial court as to a proceeds model.  For the other claims—breach of contract, promissory estoppel, and fraud—the court did not err in granting a directed verdict.  We affirm the district court on these claims.

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Douglas F. Staskal, and Jeanie Vaudt, Judges.  APPEAL DISMISSED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

                A municipality and several officials appeal following a district court ruling determining their motion for summary judgment to be moot, arguing the district court erred in granting the appellee additional time to respond to their motion for summary judgment, and claiming the court should have ruled on the motion.  OPINION HOLDS: We find no remaining justiciable controversy and dismiss the appeal as moot.

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Gamble, S.J., takes no part.  Opinion by Vaitheswaran, P.J. (10 pages)

            Michael Gerken appeals his convictions of first-degree theft and ongoing criminal conduct, contending (1) the evidence was insufficient to support the jury’s findings of guilt, (2) the district court abused its discretion “in allowing the State to reopen the record to provide additional evidence on essential elements of ongoing criminal conduct,” (3) his trial attorney was ineffective in “handling the jury instructions for both offenses,” and (4) the district court erred in ordering “an unknown amount of attorney fees.”  OPINION HOLDS: We affirm Gerken’s convictions, and we vacate the provision in the order of disposition requiring Gerken to make restitution and remand for further proceedings. 

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (5 pages)

            Safet Velic appeals his convictions for burglary and domestic abuse assault causing bodily injury.  Velic contends the district court should have excluded some testimony from the trial as hearsay.  OPINION HOLDS: We find the testimony was properly admitted under the excited-utterance exception to the rule against hearsay and affirm.

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Roger Cheshire appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  We conclude Cheshire has not shown he was prejudiced by defense counsel’s performance.  We find the district court properly rejected Cheshire’s claim of ineffective assistance of defense counsel.  We do not address Cheshire’s claim of ineffective assistance of postconviction counsel.

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers and Gregory G. Milani, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Larry Clabaugh owns residential property in Ottumwa.  The city alleges he used that property to store junk motor vehicles—violating zoning ordinances.  At trial, the district court denied Clabaugh’s last minute motion for continuance and advised Clabaugh that the court would enter a default judgment if he left the courtroom.  Clabaugh left trial despite the court’s remarks.  He now appeals the court’s denial of a continuance and entry of default judgment.  OPINION HOLDS: The record does not support Clabaugh’s contention that the continuance was necessary to prevent injustice.  And the city had a right to timely enforcement of its ordinances.  And, because both parties agreed that Clabaugh was a vital witness, defense counsel anticipated his client faced default if he left the courtroom.  The district court properly entered default under Iowa Rule of Civil Procedure 1.971(3).  

            Appeal from the Iowa District Court for Black Hawk County, Joel E. Dalrymple, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J. (8 pages)

            Michael Wedgwood appeals his conviction and sentence for assault on a peace officer and interference with official acts resulting in bodily injury.  OPINION HOLDS: The district court did not err in submitting jury instructions without language on justification because the record contains no basis to conclude Michael used reasonable force in response to the officers’ actions.  However, the court did not evaluate Michael’s reasonable ability to pay before ordering restitution.  We affirm his convictions, vacate the restitution order, and remand for resentencing.

            Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            Appellants appeal an order granting summary judgment in a quite-title action.  OPINION HOLDS: We affirm the order granting summary judgment in favor of the appellees. 

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J. (10 pages)

            Keyshaun Jones appeals his conviction for perjury, asserting the district court erred in admitting hearsay evidence and his trial counsel was ineffective in failing to object to impermissible vouching testimony from a police witness.  OPINION HOLDS: Because the evidence fits the hearsay exception for statements against interest, the court did not err.  We also find the disputed testimony was permissible because it did not vouch for a witness at trial and did not comment on credibility.  Rather, it described how Jones’s deposition testimony contradicted facts from the police investigation and Jones’s previous statements to police.  Thus, we affirm. 

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (28 pages)

            Tristin Alderman appeals from his convictions of first-degree murder, first-degree robbery, and conspiracy to commit first-degree burglary.  Alderman (1) maintains the trial court abused its discretion in twice granting the motion to continue of Alderman’s co-defendant; (2) contests several evidentiary rulings of the court; (3) challenges the sufficiency of the evidence supporting his convictions; (4) argues the court impermissibly sentenced him to consecutive terms of incarceration and considered improper factors when doing so; and (5) challenges the portion of the court’s sentencing order requiring Alderman to pay attorney fees and court costs as part of restitution.  OPINION HOLDS: Finding no reversible error, we affirm Alderman’s convictions.  We vacate the portions of the sentencing order requiring Alderman to pay court costs and attorney fees and remand for determination of Alderman’s reasonable ability to pay, but we otherwise affirm Alderman’s sentences.

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J. (7 pages)

            Timothy Fontenot appeals his convictions on two counts of indecent contact with a child, claiming the district court erred in admitting hearsay evidence contained in a video of a forensic interview of his victim.  OPINION HOLDS: We conclude the bulk of the forensic interview video was properly admitted as non-hearsay prior consistent statements and Fontenot suffered no prejudice from the admission of the inconsistent statements contained in the video of the interview.  As such, we affirm Fontenot’s dual convictions of indecent contact with a child. 

            Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            Thomas Bibler appeals his conviction for second-degree murder.  He claims his involuntary intoxication provides him a complete defense to the crime.  OPINION HOLDS: Iowa Code section 701.5 (2016) defining the intoxication defense does not differentiate between voluntary or involuntary intoxication.  And section 701.5 only negates specific intent; it does not provide a complete defense.