IN THE COURT OF APPEALS OF IOWA
No. 16-0904
Filed June 7, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MELVIN MARTIN JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Kim M. Riley,
District Associate Judge.
A defendant appeals his conviction for domestic abuse assault causing
bodily injury, third offense. AFFIRMED.
Lanny M. Van Daele of Kennedy, Cruise, Frey & Gelner, L.L.P., Iowa City,
for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
VOGEL, Presiding Judge.
Melvin Martin Jr. appeals his conviction for third-offense domestic abuse
assault causing bodily injury, in violation of Iowa Code sections 708.1, 708.2A(1),
and 708.2A(4) (2015), following a stipulated trial on the minutes of evidence.
Specifically, Martin claims the district court erred in limiting the factual record to
the trial information and minutes of evidence and in denying his post-notice-of-
appeal motion to modify the record. Because we find Martin stipulated to a trial
on the minutes of evidence and find no error in the district court’s denial of
Martin’s motion to modify the record, we affirm Martin’s conviction.
I. Background Facts and Proceedings
On August 10, 2015, the State charged Martin with third-offense domestic
abuse assault causing bodily injury. After waiving his right to a jury trial, Martin
entered a plea of guilty on March 28, 2016. However, Martin later withdrew his
guilty plea and agreed to a trial on the minutes of evidence as filed along with the
trial information. The district court discussed Martin’s request for a trial on the
minutes of evidence with him:
THE COURT: All right. Thank you. So Mr. Martin, let me
ask you a few questions about that. We were scheduled for a trial
to the court today, which would be just a trial in front of a judge, as
you had previously waived your right to a trial by jury. And if we
proceed with a trial to the court, that would involve the State calling
a number of witnesses to give testimony in this case. And then
they would be, of course, questioned and cross-examined by your
attorney as part of the submission of the case to the court. Mr.
Smith informs me that you and he have talked, and that in lieu of
proceeding with the trial to the court, you have made the decision to
proceed by way of a Trial on the Minutes. Is that what you want to
do today?
MR. MARTIN: Yes, ma’am.
THE COURT: Okay. And you understand that if you do
proceed with a Trial on the Minutes, then the court would determine
3
your guilt or innocence based solely on the Minutes of Testimony,
that is the information contained in the police reports, witness
statements, and the summaries of those statements that were filed
along with the Trial Information. Do you understand that?
MR. MARTIN: Yes, ma’am.
THE COURT: Okay. And you agree that this is the evidence
—the evidence in the Minutes of Testimony would be the evidence
that the State would present today if the State were, in fact, to call
each of those witnesses to give testimony?
MR. MARTIN: Yes, ma’am.
THE COURT: All right. And you consent to have me
determine your guilt or innocence based solely on that evidence
contained in those witness statements?
MR. MARTIN: Yes, ma’am.
THE COURT: All right. And I notice that in addition to the
original Minutes of Testimony that were filed on August 10th of last
year, there have been three sets of Amended Minutes filed
December 9th of last year, December 4th of last year, as well as
November 13th of last year. And Mr. Smith, does Mr. Martin wish
to have the court include those Amendments to those original
Minutes in its determination?
MR. SMITH: Yes, Your Honor.
THE COURT: All right. So Mr. Martin is stipulating to have
the court consider all of the Minutes filed in this case?
MR. SMITH: Your Honor, my client is stipulating not
necessarily to the veracity of what’s been filed, but to the filings up
to this point by the State contained in the Minutes of Testimony.
On March 30, the district court found Martin guilty. Martin then filed a pro
se motion requesting the court review additional evidence on April 1. On April 4,
the court announced its verdict at a hearing where Martin was present and
represented by counsel; the court also scheduled sentencing at the hearing. The
court did not address Martin’s pro se motion, and neither Martin nor his counsel
brought it to the attention of the court. On April 20, Martin filed a pro se motion in
arrest of judgment, which claimed the court erred in not considering deposition
testimony from the victim. At the sentencing hearing on May 18, the court asked
Martin about the motion in arrest of judgment, and Martin indicated that he
4
wished to withdraw the motion. The court then proceeded with sentencing.
Martin filed his notice of appeal on May 24.
On December 14, 2015, Martin filed a motion for correction or modification
of the record under Iowa Rule of Appellate Procedure 6.807, again requesting
the district court attach depositions to the record. On the same day, the district
court concluded rule 6.807 was not designed to supplement the record and
denied Martin’s motion.
Martin appeals.
II. Stipulated Trial on the Minutes of Evidence
Martin asserts the district court erred by limiting the record in his stipulated
trial to the minutes of evidence and the trial information. Martin claims the court
should have considered deposition testimony he sought to add to the record.
The State argues Martin failed to preserve error on this issue.
In order to properly preserve error, issues “must ordinarily be both raised
and decided by the district court.” Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). “When a district court fails to rule on an issue properly raised by a
party, the party who raised the issue must file a motion requesting a ruling in
order to preserve error for appeal.” Id.
The district court never ruled on Martin’s April 1 motion to consider
additional evidence, and neither Martin nor his counsel raised the issue at the
verdict hearing three days later. Nevertheless, Martin did not file a posttrial
motion bringing the issue to the court’s attention. Later, Martin did file a motion
in arrest of judgment, which reasserted the argument from his previous motion, in
part. Yet, at the sentencing hearing, Martin withdrew his motion in arrest of
5
judgment and never sought a ruling from the district court. Because the district
court never ruled on Martin’s motion to consider additional evidence, we
conclude error was not preserved on the issue. See id.
III. Motion Under Rule 6.807
Martin next contends the district court erred in denying his post-notice-of-
appeal motion to correct the record under rule 6.807. The State disagrees.
Rule 6.807 provides:
If any difference arises as to whether the record truly discloses
what occurred in the district court, commission, agency, or other
tribunal, the difference shall be submitted to and settled by that
court, commission, agency or other tribunal and the record made to
conform to the truth. If anything material to either party is omitted
from the record by error or accident or is misstated therein, the
parties by stipulation or the district court, commission, agency, or
other tribunal, either before or after the record is transmitted to the
supreme court, or the appropriate appellate court on proper
suggestion or on its own initiative, may direct that the omission or
misstatement be corrected and if necessary that a supplemental
record be certified and transmitted.
Martin claims the rule allows him to attach depositions to the record that he forgot
to attach to his posttrial motions. The depositions Martin sought to add were not
part of the record and therefore were not considered by the district court in the
adjudication of guilt. Thus, as they were never part of the record, they could not
have been “omitted” from the record. See Iowa R. App. P. 6.807. Rule 6.807
only allows for the correction of the record where a dispute exists as to what the
correct record is or a part of the record has been inadvertently omitted; it does
not allow the introduction of additional materials to the record. See McCleary v.
Wirtz, 222 N.W.2d 409, 415–16 (Iowa 1974) (“[T]he cited rule allows nothing
more than [c]orrection of a record already made, not the [m]aking of an additional
6
record.”). Accordingly, we find no error in the district court’s denial of Martin’s
motion under rule 6.807.
IV. Conclusion
Because we find no reversible error, we affirm Martin’s conviction.
AFFIRMED.