IN THE COURT OF APPEALS OF IOWA
No. 4-002 / 11-1958
Filed February 5, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HUBERT TODD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Dawn D.
Newcomb (trial), Judicial Magistrate, and Jeffrey L. Harris (appeal), District
Associate Judge.
Hubert Todd appeals his convictions for domestic abuse assault and
criminal mischief in the third degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Michelle Wagner, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ. Bower, J., takes
no part.
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VOGEL, P.J.
Hubert Todd appeals his convictions for domestic abuse assault and
criminal mischief in the third degree. Todd asserts sufficient evidence does not
support either conviction. He further argues trial counsel was ineffective for
failing to object to various testimony at trial and for failing to request a jury trial or,
alternatively, advise Todd of his right to demand a jury trial. Todd also claims his
due process rights were violated and that the district court did not have the
authority to require him to attend batterer’s education, and consequently, he was
given an illegal sentence. Although his wife recanted much of her initial story, we
conclude sufficient evidence supports Todd’s convictions, he cannot establish
counsel breached an essential duty with regard to two of his ineffective-
assistance claims, we preserve the third for possible postconviction relief
proceedings, and his due process rights were not violated. We further find
requiring batterer’s education was mandatory, and thus Todd’s sentence was not
illegal. Therefore, we affirm the district court.
I. Factual and Procedural Background
From the magistrate’s notes, the following facts could be found. In early
March 2010, Todd arrived at the residence of his estranged wife, Lola Todd
(Lola). He was agitated and claimed he wanted to fight a man who had chased
him to the house. Lola and Todd began to argue, Todd broke various pieces of
furniture, including a glass coffee table, a curio cabinet and a television, and he
pushed Lola, causing a red mark on her neck. Lola called the police, and
Officers Spencer Gann and Eddie Savage arrived on the scene.
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Lola and Todd’s adult daughter, Sharkarra Todd (Sharkarra), was also
present. She stated she saw Todd push Lola. At trial, the officers testified they
arrived and witnessed an argument in progress. They observed broken furniture
and that the television had fallen on Sharkarra’s foot. They testified as to Lola’s
on-the-scene statement that Todd had grabbed her by her throat and shoved her
and that they had observed a red puffy welt on the side of Lola’s neck.
On March 5, 2010, Todd was charged with domestic abuse assault in
violation of Iowa Code section 708.2A.2(a) (2009), and criminal mischief in the
third degree, in violation of Iowa Code section 716.6, both simple misdemeanors.
A bench trial was held on September 2, 2010, and Todd was found guilty on both
counts. He was sentenced to seven days in jail with all but two days suspended,
and was ordered to attend a batterer’s education program.1 Todd appealed to
the district court, which upheld the magistrate’s decision. Todd then filed an
application for discretionary review, which the supreme court granted.
II. Sufficiency of the Evidence
Todd first claims sufficient evidence does not exist to support either
conviction. We review challenges to the sufficiency of the evidence for correction
of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view the
record in the light most favorable to the non-moving party, here, the State, and
make all legitimate inferences and presumptions that may be reasonably
deduced from the evidence. Id. If substantial evidence supports the verdict, we
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Substantial delays followed Todd’s oral notice of appeal from the magistrate’s ruling,
none of which need be detailed to reach the issues in this current appeal.
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will affirm. Id. Evidence is substantial if it would convince a reasonable trier of
fact the defendant is guilty beyond a reasonable doubt. Id.
To be convicted of domestic abuse assault, the State must prove Todd
acted with the intent “to cause pain or injury to, or . . . result in physical contact
which will be insulting or offensive to another, coupled with the apparent ability to
execute the act,” or that he intended to place another in fear of immediate
physical contact that is painful, injurious, insulting, or offensive. Iowa Code
§ 708.1(1)–(2). Todd asserts that, because Lola testified she was not scared,
Todd used no force, the “welt” on her neck was from a surgical scar, and Todd
did not act intentionally, the evidence was insufficient to sustain his conviction.
However, while Lola recanted or minimized her initial story, she did testify Todd
pushed her with his hands, which was corroborated by Sharkarra’s testimony that
Todd pushed Lola. Officers Savage and Gann also testified that, at the scene,
Lola was upset and stated Todd grabbed her by her throat and shoved her. This
is sufficient evidence to affirm the conviction for domestic abuse assault.
To be guilty of criminal mischief, Todd must have intentionally destroyed
or damaged property he had no right to damage. See Iowa Code §§ 716.1,
716.6. Todd relies on Lola’s testimony that Todd owned all the property he
damaged, and argues he could not be found guilty of this charge because the
property belonged to him. However, on cross examination Lola admitted she
owned the damaged table. The magistrate found Lola’s statement that she
owned the table more credible than her previous statement. We defer to the
credibility determinations of the fact finder. See State v. Thornton, 498 N.W.2d
670, 673 (Iowa 1993). Furthermore, Sharkarra testified the cabinet belonged to
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both Todd and Lola, and Todd has no right to destroy marital property. See
State v. Zeien, 505 N.W.2d 498, 499 (Iowa 1993) (“[T]he [criminal mischief]
statute should apply to marital property as well as any other [property].”).
Therefore, taking into account the totality of the evidence as well as the
magistrate’s credibility determination, sufficient evidence exists to support the
conviction for criminal mischief, and we affirm.
III. Ineffective Assistance of Counsel
Todd next asserts trial counsel was ineffective based on three grounds:
1) counsel failed to object to the officers’ testimony regarding Lola’s welts,
2) counsel failed to object to hearsay statements, and 3) counsel failed to
demand a jury trial.
A defendant may raise an ineffective assistance claim on direct appeal if
the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006). We may either decide the record is adequate and issue a
ruling on the merits, or we may choose to preserve the claim for postconviction
proceedings. Id. We review ineffective assistance of counsel claims de novo.
Id. To succeed on this claim, the defendant must show, first, that counsel
breached an essential duty, and, second, that he was prejudiced by counsel’s
failure. Id.
A. Officers’ Testimony
Todd argues the testimony of the officers regarding the welt they observed
on Lola’s neck was improper because they were not qualified to distinguish a
welt from a surgical scar. Consequently, trial counsel was ineffective for failing
to object to the statements. However, lay opinion testimony is allowed when the
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opinion is rationally based on the witness’s perception and is helpful to
understand the witness’s testimony or determine a fact in issue. Iowa R. Evid.
5.701; see also State v. Glaus, 455 N.W.2d 274, 276 (Iowa Ct. App. 1990) (“[A]
lay or non-expert opinion is received because and whenever the facts cannot be
told so as to give the court or jury the information which the witness’s observation
has given to him.”).
Officer Gann testified he observed a red welt on Lola’s neck without an
incision or scratch, and that it could not have been from an operation. Officer
Savage testified Lola had a red puffy welt on the side of her neck that was fresh
and was not an incision, from a scratch or open sore, and there was no mention
at the time of surgery on her neck. This testimony is rationally based on the
officers’ perception of the welt, and is therefore proper lay opinion testimony.
Consequently, trial counsel did not breach an essential duty by not objecting to
this testimony, and Todd’s claim is without merit.
B. Hearsay
Todd further asserts trial counsel was ineffective because he failed to
object to the officers’ testimony regarding Lola and Sharkarra’s statements at the
scene. However, trial counsel breached no essential duty by not objecting
because these statements met the excited utterance exception to the hearsay
rule. See Iowa R. Evid. 5.803(2). This exception exists when the statement
relates “to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Id. The officers arrived
during the fracas where they observed “yelling and shouting” and the fact that
“Lola was angry and out of breath.” This indicates the statements were reliable
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because they were made under the stress and excitement of the event rather
than upon reflection or deliberation, and therefore admissible. See State v.
Atwood, 602 N.W.2d 775, 782 (Iowa 1999). Consequently, Todd’s ineffective-
assistance claim is without merit.
Todd next argues that his Confrontation Clause rights were violated, and
thus trial counsel was ineffective in failing to object to these same statements.
However, as demonstrated by the record, Todd had ample opportunity during
trial to question Lola and Sharkarra regarding their statements and perceptions of
the events. Therefore, no Confrontation Clause violation occurred, and Todd’s
claim fails.
C. Jury Trial
Todd also asserts trial counsel was ineffective because counsel did not
advise him of his right to demand a jury trial, nor did counsel demand a jury trial
despite Todd stating he wished to exercise this right. Regardless of the
contradictory position inherent in Todd’s claim, there is an insufficient record to
decide this issue. Therefore, we preserve Todd’s claim for possible
postconviction relief proceedings.
IV. Due Process
Todd next argues his due process rights were violated because he was
not informed of his right to a jury trial, he was denied a meaningful appeal to the
district court, and his statement of evidence under Iowa Rule of Appellate
Procedure 6.807 was not addressed on appeal by the district court. The State
responds that Todd failed to preserve error on this claim.
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“The doctrine of error preservation has two components—a substantive
component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,
523 (Iowa 2011) (holding a one-page resistance that stated there was no legal
basis for the State’s actions did not properly preserve error with respect to the
defendant’s constitutional claims). To preserve error on appeal, the party must
first state the objection in a timely manner, that is, at a time when corrective
action can be taken, in addition to the basis for the objection. Id. at 524. The
court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864
(Iowa 2012). “If the court’s ruling indicates that the court considered the issue
and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’
the issue has been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532,
540 (Iowa 2002)).
Todd’s arguments regarding due process were never raised before either
the magistrate judge or the district court judge. Therefore, this claim was not
considered by the lower court, and it is not preserved. Consequently, we decline
to address the merits of Todd’s arguments.
V. Batterer’s Education
Todd’s final argument asserts that, because he was placed on “self-
probation” rather than “formal” probation, the batterer’s education program could
not be ordered, and thereby constitutes an illegal sentence. However, pursuant
to Iowa Code section 708.2B, because Todd was convicted of domestic abuse
assault under Iowa Code section 708.2A, he must “report to the district
department in order to participate in a batterers’ treatment program for domestic
abuse offenders.” Given this statutory mandate, Todd’s sentence, which
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included the batterer’s education program, was not illegal. Therefore, we affirm
his sentence.
AFFIRMED.
State of Iowa v. Hubert Todd
Combined Opinion