State of Iowa v. Charles Raymond Albright

IN THE SUPREME COURT OF IOWA
No. 17–1286

Filed March 22, 2019

STATE OF IOWA,

Appellee,

vs.

CHARLES RAYMOND ALBRIGHT,

Appellant.

Appeal from the Iowa District Court for Franklin County, Gregg R.

Rosenbladt, Judge.

A defendant appeals his convictions and sentences for willful injury

causing bodily injury and kidnapping in the first degree. JUDGMENT OF

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout and Laura

Roan, Assistant Attorneys General, and Brent Symens, County Attorney,

for appellee.
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WIGGINS, Justice.

A defendant appeals his convictions and sentences for willful injury

causing bodily injury and kidnapping in the first degree. He claims that

there was insufficient evidence to support his kidnapping conviction and

that he was prejudiced when the court instructed the jury on a lessor

included charge of kidnapping in the second degree. He also claims his

trial counsel was ineffective by failing to object to and by introducing

evidence of his other crimes, wrongs, or other acts. Finally, he claims the

district court erred in ordering him to pay restitution without first

considering his reasonable ability to pay.

On appeal, we find that substantial evidence supported his

conviction for first-degree kidnapping and that he was not prejudiced

when the court instructed the jury on a lessor included charge of

kidnapping in the second degree. We also find we cannot reach his

ineffective-assistance-of-counsel claims regarding his counsel’s failure to

object to and introduction of evidence of his other crimes, wrongs, or other

acts on direct appeal. We further find the restitution prescribed in the

sentencing order does not comply with our restitution statutes. Therefore,

we affirm Albright’s convictions for willful injury causing bodily injury and

kidnapping in the first degree. 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 this opinion.

I. Background Facts.

“Viewing the trial evidence in the light most favorable to the jury’s

guilty verdict[], the jury could have found the following facts.” State v.

Romer, 832 N.W.2d 169, 172–73 (Iowa 2013). The defendant, Charles

Albright, and K.H. dated for over two years, during which time they lived
 3

together in various locations around Iowa. In October of 2016, Albright

and K.H. lived in a house in Meservey.

Around 1:30 a.m. on October 7, 2016, Albright became paranoid

after using methamphetamine and decided not to go into work that day.

Albright accused K.H. of having men over to their home while he was at

work and said he was going to stay home to keep an eye on K.H. K.H. told

Albright she was not having men over while he was at work. At that point,

Albright became very angry and hit K.H. Albright continued to hit her in

the face with both an open hand and a fist while accusing her of lying and

calling her worthless, good-for-nothing, and other derogatory names.

K.H. tried to get away from Albright. As she went toward the locked

door of their home, Albright grabbed K.H. by the collar of her jacket, threw

her against the wall, and told her she was not leaving the house. Albright

then threw K.H. onto the floor and slammed her head into the ground

twice. Albright continued to hit K.H. as he threw her onto the mattress in

the living room. Albright’s dog, who lived with the couple, began biting

K.H. on the leg and on the hip while Albright continued to batter K.H. on

the mattress.

Albright hit K.H. in her pelvic region multiple times with the

backside of a cordless drill. K.H. tried to block Albright’s blows to her face

and body with her hands and arms. Albright held K.H. down and cut

behind her ear with a knife. He used a Taser to burn K.H.’s wrists. The

assault went on intermittently for hours.

K.H. could not escape because she was scared and Albright was

always watching her. When she tried to leave the home by moving toward

the door, Albright blocked the door and told K.H. to sit back down. K.H.

had to remain within Albright’s eyesight the entire morning, and Albright

never fell asleep.
 4

That afternoon, Albright forced K.H. to go with him to the

veterinarian in Sheffield. K.H. did not want to enter Albright’s truck with

him because she was afraid he would kill her. She told Albright she did

not want to go. Albright started getting out of the truck to force her

physically inside, so K.H. entered Albright’s vehicle.

On the way to the veterinarian’s office, Albright continued to hit K.H.

Albright made a phone call to a friend, and K.H. tried to call out “help” to

the friend on the phone. Albright told K.H. he was going to bury her in a

cornfield up to her neck and let a combine cut off her head.

When Albright and K.H. arrived at the veterinarian’s office, K.H.

stayed in the truck while Albright took the dog inside. K.H. did not try to

escape from the truck while Albright was inside the veterinarian’s office

because there was a large window looking out from the office to the parking

lot, and she was afraid Albright would see her escape from the truck.

After the veterinarian appointment, Albright drove to a Casey’s gas

station. While Albright was inside the gas station, K.H. escaped by leaving

Albright’s truck and running across the road to Dollar General. Once

inside, K.H. asked the Dollar General clerk for a telephone and the keys to

the restroom. K.H. called 911 for help from inside the restroom and waited

there until an officer arrived.

The Sheffield Chief of Police arrived at Dollar General at

approximately 3:00 p.m. as the first officer on the scene. K.H. sounded

very scared when he arrived, and she wanted to verify it was the officer

outside the restroom door, not Albright. When K.H. opened the door for

the officer and he first saw her, K.H. was propped up against the bathroom

wall and her eyes were almost completely swollen shut. The chief called

an ambulance and asked an EMT who was shopping at Dollar General to

evaluate K.H. before the ambulance arrived.
 5

As a result of Albright’s beating, K.H. suffered two nose fractures;

bruising and swelling of her arms, legs, and face; head and wrist pain;

dizziness; and vision problems. Albright also broke K.H.’s dentures when

he repeatedly hit her in the face.

II. Proceedings.

On October 10, the court issued a warrant for Albright’s arrest. On

October 18, officers executed a search warrant for Albright’s home in

Meservey. Officers found a cordless drill sitting upside down on a chair

near the mattress in the living room.

Officers located and arrested Albright on October 19 at a home in

Mason City. The State charged Albright with willful injury resulting in

serious injury, a class “C” felony, in violation of Iowa Code section 708.4(1)

(2016), and kidnapping in the first degree, a class “A” felony, in violation

of Iowa Code sections 710.1 and 710.2.

At trial, the State entered evidence that Albright had been abusive

and controlling of K.H. and that she had tried to leave him in the past.

Defense counsel did not object to the testimony and asked questions of

K.H. that resulted in further prior bad acts evidence. The State and

defense counsel also introduced evidence of Albright’s prior convictions

and jail time. Defense counsel did not request a limiting instruction on

the prior bad acts or prior convictions evidence, and the district court did

not give a limiting instruction to the jury.

The jury found Albright guilty of willful injury causing bodily injury

and kidnapping in the first degree. The district court entered judgment,

ordering Albright to serve a term not to exceed five years for the willful

injury conviction and life in prison for the kidnapping conviction. The

district court ordered Albright to pay a $750 fine, 35% surcharge, and

“court costs in the amount assessed by the Clerk” for the willful injury
 6

conviction. The district court also ordered Albright to pay court costs for

the kidnapping conviction. Regarding his reasonable ability to pay, the

district court’s order said,

Pursuant to Iowa Code section 910.2, Defendant is found to
have the reasonable ability to pay the obligations set forth
herein, including but not limited to any crime victim
assistance reimbursement, restitution to public agencies, and
court costs including correctional fees, court-appointed
attorney fees, contribution to a local anticrime organization,
or restitution to the medical assistance program.

Albright appealed his convictions and sentences.
III. Issues.

Albright raises four issues on appeal. First, whether the State

presented sufficient evidence to support his conviction of first-degree

kidnapping. Second, whether the district court erred in submitting

kidnapping in the second degree as a lesser included offense of kidnapping

in the first degree. Third, whether counsel was ineffective by failing to

object to and by introducing evidence of Albright’s other crimes, wrongs,

or other acts. Fourth, whether the district court was wrong in ordering

Albright to pay restitution without first considering his reasonable ability

to pay.

IV. Whether the State Presented Sufficient Evidence to Support
Albright’s Conviction of First-Degree Kidnapping.

Albright argues the State did not present sufficient evidence to prove

two of the elements of first-degree kidnapping: (1) confinement and/or

removal and (2) torture.

A. Standard of Review. We review challenges to the sufficiency of

evidence for correction of errors at law. State v. Copenhaver, 844 N.W.2d

442, 449 (Iowa 2014). We review all of the evidence presented at trial and

consider it in the light most favorable to the State. Id. When the evidence
 7

could convince a rational trier of fact that the defendant is guilty beyond

a reasonable doubt, the verdict is supported by substantial evidence. State

v. Bower, 725 N.W.2d 435, 444 (Iowa 2006).

B. Whether Albright Preserved Error on the Issue. The State

contends Albright did not preserve error on this issue. Albright argues he

preserved error by moving for a judgment of acquittal.

Counsel does not preserve error on a sufficiency-of-evidence issue

when counsel makes a general motion for judgment of acquittal but fails

to identify specific elements of the charge not supported by the evidence.

See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (en banc). The

exception to this error preservation rule is when “grounds for a motion

were obvious and understood by the trial court and counsel.” State v.

Williams, 695 N.W.2d 23, 27 (Iowa 2005). In Williams, we held the element

to which counsel referred in his motion for acquittal was “obvious and

understood” by the trial court and opposing counsel when the crime

required the prosecution to prove only two elements and the parties

stipulated the second element was present. Id. at 28.

Here, at the close of the State’s evidence, defense counsel asserted,

I do have one motion, Judge. Comes now, Mr. Albright,
through counsel, and moves to dismiss this matter and hold
it in arrest of judgment for the reason that all of the evidence
that’s been presented, even when it’s viewed in the best light
for the State, could not allow these people to form or find—
engender a jury question.

Again, at the close of all evidence, defense counsel renewed his motion,

stating,

Comes now, the defendant, again through counsel, and moves
for a directed verdict of acquittal on the grounds that all of the
evidence, even in the best light for the State, would not
engender a jury question.
 8

In his motions, defense counsel did not identify the specific elements

of the charge of kidnapping in the first degree for which sufficient evidence

was lacking. Defense counsel’s motions do not fall under the “obvious and

understood” exception either.

The State was required to prove four elements in this case to prove

kidnapping in the first degree. It was also required to prove three elements

to prove willful injury causing bodily injury. When defense counsel failed

to mention any of the elements in his motions for acquittal, neither the

trial court nor counsel could be certain as to which element or elements

defense counsel was arguing sufficient evidence did not support. Cf.

Williams, 695 N.W.2d at 28. The present case is unlike Williams, where

the parties stipulated to one of the two elements needed to prove domestic

abuse assault. See id. Thus, in Williams it was clear which element was

the fighting issue of the case. See id. Here, Albright did not stipulate to

any of the elements of kidnapping in the first degree. The court could not

know what element or elements Albright’s counsel was referring to in his

motions. Therefore, the Williams exception does not apply.

Our conclusion is supported by the prosecutor’s statement following

defense counsel’s second motion for acquittal where she said, “[T]he State

resists and believes that the evidence, even at the close of the record,

creates a genuine issue of material fact upon which a jury could render

verdicts on Count I and/or Count II.” This indicates it was not “obvious

and understood” by opposing counsel which elements of the kidnapping

charge defense counsel was referring to in his motion. The State did not

know whether defense counsel was referring to the kidnapping charge or
 9

the willful injury charge, let alone which particular elements of the

charge. 1

Moreover, the court too, in its initial analysis deciding whether to

grant defense counsel’s first motion for acquittal, went through all of the

elements of both the kidnapping and willful injury charges. Thus, it was

not “obvious and understood” by the court that defense counsel’s motion

referred to any particular elements of kidnapping.

Accordingly, we find Albright did not preserve error on his

sufficiency-of-evidence claim.

C. Whether Counsel Was Ineffective for Failing to Preserve

Error on the Issue of the Sufficiency of the Evidence of Kidnapping

in the First Degree. Albright argues in the alternative that if he did not

preserve error, counsel was ineffective for failing to preserve error. We

review claims of ineffective assistance of counsel de novo because such

claims have their basis in the Sixth Amendment to the United States

Constitution. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). To prevail

on a claim of ineffective assistance, the claimant must show both that

counsel failed to perform an essential duty and that prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

accord State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

For the first prong—counsel failed to perform an essential duty—the

claimant must show counsel made errors so serious that counsel was not

functioning as the counsel guaranteed by the Sixth Amendment. Canal,

773 N.W.2d at 532. We measure counsel’s performance against the

1It later became clear that defense counsel was referring to the kidnapping charge
only, not the willful injury charge, when he gave his closing argument, saying, “And he
knows he committed willful injury. And we think he’s guilty of willful injury.” However,
which of the elements of kidnapping defense counsel believed the evidence was
insufficient for remained unclear.
 10

standard of a reasonably competent practitioner, and we begin with the

presumption that counsel performed his or her duties competently. State

v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). We objectively consider

whether counsel’s performance was reasonable under prevailing

professional norms in light of all of the circumstances. State v. Lyman,

776 N.W.2d 865, 878 (Iowa 2010), overruled on other grounds by Alcala v.

Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). In making this

determination, we avoid second-guessing or making hindsight

evaluations. Maxwell, 743 N.W.2d at 196.

For the second prong—prejudice—the claimant must prove there is

a reasonable probability that the outcome of the proceeding would have

been different but for counsel’s unprofessional errors. Canal, 773 N.W.2d

at 532. The claimant need not show that it is more likely than not the

proceeding would have been different, but only that the probability of a

different result is “sufficient to undermine confidence in the outcome.”

Bowman v. State, 710 N.W.2d 200, 206 (Iowa 2006) (quoting State v.

Graves, 668 N.W.2d 860, 882 (Iowa 2003)). To make this determination,

we consider what factual findings counsel’s errors affected and whether

the effect was pervasive or isolated and trivial. Id. at 882–83.

Albright argues his counsel was ineffective by failing to make a

specific motion for judgment of acquittal based on insufficient evidence to

prove the charge of kidnapping. Specifically, he argues the prosecutor did

not prove the elements of “confinement and/or removal” and “intentionally

subjected to torture” by sufficient evidence.

An ineffective-assistance-of-counsel claim founded on counsel’s

failure to raise a claim of insufficient evidence to support a conviction is a

claim a defendant can raise on direct appeal. State v. Truesdell, 679

N.W.2d 611, 616 (Iowa 2004), superseded by statutory amendment on
 11

other grounds, 2004 Iowa Acts ch. 1057, § 1 (codified at Iowa Code

§ 124.401(4) (2005)), as recognized in State v. Milom, 744 N.W.2d 117,

121–22 (Iowa 2007). If the record does not reveal substantial evidence to

support the convictions, counsel was ineffective for failing to raise the

issue. Id. If, however, the record contains sufficient evidence, counsel’s

failure to raise the claim was not prejudicial and the claimant’s ineffective-

assistance-of-counsel claim fails. Id.

1. Sufficiency of evidence for element of confinement and/or removal.

To prove Albright committed first-degree kidnapping, the State was

required to prove Albright confined K.H. or removed her from one place to

another. See Iowa Code § 710.1 (2016). The court instructed the jury on

confinement or removal as follows:

For purposes of these instructions, a person is
“confined” when her freedom to move about is substantially
restricted by force, threat, or deception. The person may be
confined either in the place where the restriction began or in
a place to which she has been removed. No minimum time of
confinement or distance of removal is required, but it must be
more than slight. The confinement or removal must have
significance apart from any other crime committed against the
person and must substantially increase the risk of harm to
the person, significantly reduce the risk to Defendant of
detection, or significantly ease the escape of Defendant.

In State v. Rich, we adopted the incidental rule for kidnapping

offenses. 305 N.W.2d 739, 745 (Iowa 1981). The incidental rule

establishes that confinement or removal as used in the kidnapping statute

requires more than confinement or removal that is an inherent incident of

the commission of another crime. Id. “The rationale for this conclusion is

that we do not believe the legislature intended to afford the prosecution a

choice of two penalties of such a disparate nature for the typical crime of

sexual abuse.” Id.
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The outcome from Rich has been our application of a three-prong

test to determine whether confinement or removal can support a

conviction of kidnapping. See, e.g., State v. Robinson, 859 N.W.2d 464,

478–79 (Iowa 2015). The test is essentially contained in the instructions

the court gave to the jury in this case. The three prongs include

confinement or removal that (1) “substantially increases the risk of harm

to the victim,” (2) “significantly lessens the risk of detection,” or

(3) “significantly facilitates escape of the perpetrator.” Rich, 305 N.W.2d

at 745–46. One prong must be present to support a kidnapping conviction

alongside the underlying crime. See Robinson, 859 N.W.2d at 478.

The State first argues the incidental rule does not apply in cases

alleging torture because torture is not a separate underlying offense.

However, this court has applied the incidental rule and three-prong

analysis when considering torture as the offense on which the State has

based a kidnapping charge. See State v. Siemer, 454 N.W.2d 857, 864

(Iowa 1990).

In Siemer, a man handcuffed his girlfriend’s seven-year-old child to

a bed in the basement furnace room of their home and subjected the child

to horrendous torture. Id. at 858–59. We upheld the kidnapping

conviction in that case, reasoning Siemer’s movement and confinement of

the child to the basement room “substantially increased the risk of harm

to the child and significantly lessened the risk that Siemer’s infliction of

chronic abuse would be detected.” Id. at 864. We further held the record

contained substantial evidence to support a finding the confinement in

that case exceeded confinement normally incidental to the underlying

crime of child abuse. Id. at 864–65.

While torture alone may not be a codified offense, we have defined

torture under section 710.2, kidnapping in the first degree, as subjecting
 13

a person to “physical and/or mental anguish.” State v. White, 668 N.W.2d

850, 857 (Iowa 2003). Torture therefore appears to encompass any

codified acts that would cause physical and/or mental anguish, such as

child abuse, assault with a deadly weapon, or intentional infliction of

bodily injury. See Siemer, 454 N.W.2d at 864–65; White, 668 N.W.2d at

857; State v. Cross, 308 N.W.2d 25, 27 (Iowa 1981). It would not make

sense to require more than incidental confinement or movement to

establish first-degree kidnapping when the underlying crime is robbery or

sexual assault but allow the movement or confinement to be incidental for

other underlying crimes, such as child abuse.

The State attempts to equate this case to “the classic kidnapping

case in which an individual is abducted for the express purpose of holding

the person for ransom or as a hostage,” as discussed in State v. Misner,

410 N.W.2d 216, 223 (Iowa 1987). The Misner court said that in such

cases, the incidental rule does not apply. Id. at 223–24. We disagree with

the State that this case falls under the “classic kidnapping” realm of cases.

In this case, Albright prevented K.H. from leaving her own home with

physical violence and threats of force. He beat and abused K.H. Unlike

the classic kidnapping cases described in Misner, id. at 223, Albright

neither abducted K.H. to hold her as ransom or hostage, nor refrained

from committing other crimes against her. When a victim is tortured, he

or she has suffered some physical or mental anguish beyond abduction.

Therefore, we decline to adopt the State’s argument that the incidental rule

does not apply when a kidnapping charge involves torture.

The question then is whether there is sufficient evidence of Albright’s

confinement of K.H. in the house by use of physical force or threat, or

Albright’s moving of K.H. from the house to the veterinarian clinic and gas

station for a jury to find Albright guilty of kidnapping. Since our adoption
 14

of the three-prong Rich analysis, we have overturned kidnapping

convictions based on insufficient evidence to prove the element of

confinement or removal in only a few cases. See Robinson, 859 N.W.2d at

482; State v. Mead, 318 N.W.2d 440, 445 (Iowa 1982); State v. Marr, 316

N.W.2d 176, 180 (Iowa 1982).

In Marr, the defendant began following the victim while she was

walking home from a drug store at ten in the evening. Marr, 316 N.W.2d

at 177. The defendant ran up behind the victim while she was on the

sidewalk directly in front of her apartment, she screamed, and he placed

his hand over her mouth threatening her not to scream again. Id. The

defendant slammed the victim against the corner of the building; shoved

her to the ground; and forced her around the side of the building into a

gangway separating the apartment building from a neighboring house,

about ten to fifteen feet from where he had attacked her. Id. at 177–78.

The defendant pinned one of the victim’s arms behind her back, choked

her, lifted her shirt and pulled down her pants, and sexually abused the

victim for two or three minutes until the victim’s husband stopped the

attack. Id. at 178.

There, we held the facts did not warrant the conviction of kidnapping

because the confinement or removal of the victim did not exceed that

normally incidental to the commission of sexual abuse. Id. at 180. We

reasoned that holding otherwise would turn every rape, robbery, or “other

assault involving some minimal degree of confinement or removal” into a

kidnapping. Id. at 179. We held the means by which the defendant gained

control of the victim and the duration of that control distinguished Marr

from prior cases where we affirmed kidnapping convictions. Id. at 179; cf.

State v. Knupp, 310 N.W.2d 179, 182–83 (Iowa 1981) (upholding a

conviction where the defendant pulled the victim into his vehicle, drove
 15

her to a parking lot under an overpass bridge, and proceeded to forcefully

rape her); Rich, 305 N.W.2d at 745–46 (upholding a conviction where the

defendant removed the victim from an open mall walkway, bound her

hands behind her back, placed her in a wheel barrow and covered her with

trash, screamed at her to remain silent, and took her to a mall restroom

to sexually assault her).

In Mead, the defendant waited on the porch of the victims’ home

until they arrived, began talking to them about the neighborhood, and

then followed them into their home uninvited when they opened the door.

Mead, 318 N.W.2d at 441–42. The defendant then held a knife to the neck

of one of the victims and said, “This woman is dead.” Id. at 442. The

victim freed herself and ran out of the house for help as the defendant

struck the second victim in the face, kicked the second victim on the

ground, and ripped the second victim’s purse away from her. Id. The

defendant ran out of the back of the home with the victim’s purse. Id.

There, the State argued the defendant had committed kidnapping

by confining the victim when he grabbed her around the neck. Id. at 443.

We drew a distinction between a seizure and confinement and held the

facts did not warrant the conviction of kidnapping because the defendant

only seized the victim. Id. at 445.

More recently, in Robinson, we reversed a kidnapping conviction,

finding the facts did not show confinement or removal beyond that

normally associated with sexual assault. Robinson, 859 N.W.2d at 481–

82. In that case, the victim returned to the defendant’s apartment with

him willingly after the two met at a bar. Id. at 466. When the victim took

out her phone to make a call, the defendant grabbed the phone and threw

it out of the victim’s reach. Id. When the defendant went to use the

restroom, the victim grabbed her purse and left the apartment. Id. The
 16

victim realized she had left her phone in the apartment and went back to

retrieve it. Id. When she reentered the apartment, the defendant shut and

locked the door behind her, grabbed her by the neck, covered her mouth,

and dragged her down the hall to the bedroom. Id. The defendant locked

the bedroom door, threw the victim on the bed, and sexually assaulted

her. Id. The assault ended when a neighbor, who heard screams, called

the police and the police arrived, kicking down the door. Id.

In Robinson, we reasoned that the defendant’s actions of tossing the

cell phone, locking the doors, covering the victim’s mouth, and moving the

victim from the living room to the bedroom within the apartment, did not

warrant a conviction of kidnapping. Id. at 481. We said, “While there

might be some marginal increase in the risk of harm, lessening of

dete[c]tion, or facilitation of escape, we conclude it is not sufficient to

trigger dramatically increased sanctions under our kidnapping statute in

this case.” Id. at 482. We further reasoned that to be punishable for

kidnapping, the removal or confinement must add substantially to the

heinousness of the underlying crime. Id.

In the present case, the State presented evidence that Albright

prevented K.H. from leaving their house in Meservey for over thirteen

hours. Albright began assaulting K.H. at approximately 1:30 a.m. When

K.H. tried to leave the house, Albright stopped her by blocking the door

and shoving her against the wall and telling her to get back inside the

house. Even if K.H. had managed to escape, she had no cell phone and

nowhere to go because she had no vehicle. Albright hit K.H. in the face,

threw her onto the floor and slammed her head into the floor, hit K.H. in

the pelvis with a cordless drill, used a knife to cut behind K.H.’s ear, used

a Taser on K.H.’s wrists, and allowed his dog to bite K.H.’s body. The

beatings continued for hours.
 17

This case is unlike the above three cases where we reversed the

kidnapping convictions in that the duration of confinement here was

substantially longer. The defendants in Marr, Mead, and Robinson

confined their victims for a matter of a few minutes to an hour. Here,

Albright confined K.H. for over thirteen hours. This was not a “minimal

degree of confinement.” Marr, 316 N.W.2d at 179 (discussing that many

crimes involve some minimal degree of confinement).

Our kidnapping cases have generally held that the increased-risk-

of-harm prong of the Rich test is satisfied when the duration of

confinement substantially exceeded the underlying crime. See, e.g., State

v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997) (noting the defendant had the

victim remove her clothing so that she would not leave the hotel room and

she remained there the entire night after the assault); State v. McGrew,

515 N.W.2d 36, 40 (Iowa 1994) (noting the victim did not escape from the

defendant for more than four hours after he broke into her home and a

considerable amount of time after the sexual assault ended).

This case is similar to Griffin, where a jury convicted a husband of

kidnapping his wife. See Griffin, 564 N.W.2d at 372. In that case, the

defendant and his wife, the victim, were staying in a motel room together.

Id. The defendant ordered the victim to undress so she would not leave

the room, then held her down on the bed, choked her, and accused her of

being unfaithful. Id. The defendant repeatedly hit the victim on her head

and body with a bottle and sexually assaulted her with the bottle. Id. She

eventually lost consciousness, and the defendant continued to sexually

abuse her. Id.

The victim did not regain consciousness until 1:30 p.m. the day

following the assault, approximately sixteen hours after she had arrived at

the motel. Id. When the victim regained consciousness, her sister, who
 18

was also staying at the motel, came to the room while the defendant was

gone, and the victim asked her sister to call the police. Id. The defendant

in that case, like Albright, was convicted of willful injury and kidnapping,

and he challenged the evidence supporting his kidnapping conviction. Id.

We upheld Griffin’s conviction, finding his confinement of his victim in the

motel room lowered the chances of detection of the sexual assault. Id. at

373.

Like the defendant in Griffin, Albright confined K.H. for an extensive

period—a period longer than it would normally take to commit an

underlying offense of assault. See id. at 373. While the defendant in

Griffin had his victim remove her clothing to prevent her from leaving,

Albright prevented K.H. from leaving the house by blocking her exit and

physically stopping her. See id. In Griffin, we said that even though the

victim voluntarily entered the motel room, the confinement before and

after the assault took the confinement beyond that incidental to sexual

assault. Id.

Here, Albright confined K.H. all through the night and the following

morning, with periods of assault occurring throughout. Even though

Albright rested on the bed for some time, we still find that K.H. was

confined. See McGrew, 515 N.W.2d at 39–40. In McGrew, the defendant

fell asleep on the bed after sexually assaulting the victim, and the victim

stayed next to him on the bed for hours, too scared to move until she finally

had the courage to escape when she was sure he was sleeping. Id. at 38.

Similarly, K.H. was too scared to try to escape because, when she would

move away from Albright as he rested, he would wake.

Albright’s confinement of K.H. substantially increased the risk of

harm to K.H. If Albright had not confined K.H. to the house, she would

have been free to leave and further injury would have been prevented.
 19

Albright did not give her that opportunity. Moreover, the secluded nature

of the home significantly decreased the likelihood of detection. See id. at

40 (“Choosing the seclusion of his victim’s own bedroom as the situs of the

offense lessened the risk of detection for McGrew. However, that seclusion

also increased the risk of harm to Horning because McGrew, with his

victim secluded, was free to deal with her as he wished.”).

Therefore, we find substantial evidence exists to support the jury’s

finding that Albright confined K.H. in their Meservey home. Accordingly,

Albright’s counsel was not ineffective for failing to raise whether

substantial evidence existed on the issue of confinement at trial. Because

we find substantial evidence exists as to confinement, we need not analyze

the argument that the movement of K.H. from the house to the veterinarian

clinic or gas station would satisfy this element.

2. Sufficiency of evidence for element of torture. To prove first-degree

kidnapping, the State was required to show intentional infliction of severe

physical or mental pain. Cross, 308 N.W.2d at 26–27. We have analyzed

torture as an element of kidnapping in several cases before. See State v.

Schertz, 328 N.W.2d 320, 321–22 (Iowa 1982); Cross, 308 N.W.2d at 26–

27.

In Cross, we found the element of torture was satisfied for first-

degree kidnapping when the defendant removed the victim’s clothing,

struck the victim several times, touched and bit her breasts, chained her

hands, exposed himself to her, sexually assaulted her with his hands, and

carried her in his car trunk for miles while she was nude and unconscious.

308 N.W.2d at 27. The torture lasted twelve hours, during which the

defendant constantly threatened to kill the victim and inflict sexual

abuses. Id.
 20

In Schertz, we found torture when the defendant and the other

abductors tied the victim to a park tree and severely beat him. Schertz,

328 N.W.2d at 321–22. The victim was bound to a tree with his belt,

gagged with strips of his shirt, kicked, and struck in the head numerous

times. Id. We noted that as a result of the beating, the victim had multiple

lacerations on his scalp, a fractured rib, bruising of the right chest wall,

and other bruises and abrasions. Id. at 322.

In the present case, the State presented evidence through testimony

and photographs of K.H.’s injuries that K.H. experienced severe physical

pain. Albright beat K.H. intermittently for thirteen hours, causing

numerous physical injuries. Albright punched and hit K.H. in the face

with his hands; hit her in the pelvis with a cordless drill; cut behind K.H.’s

ear with a knife; burnt her wrists with a Taser; broke her dentures; and

allowed his dog to latch onto her leg, resulting in puncture wounds from

the multiple bites. In addition, Albright threatened K.H., telling her he

would bury her in a cornfield up to her head and let a combine cut her

head off, and he repeatedly called her a whore and other derogatory names.

The officer who arrived at Dollar General when K.H. called the police

testified that K.H.’s eyes were almost completely swollen shut, her face was

swollen, and it appeared to him that K.H.’s cheeks and nose were probably

broken. The EMT at the scene testified that dried blood was coming from

K.H.’s ear and dried blood covered her lips. The EMT further testified

K.H.’s forearms and hands were swollen and bruised. The officer and the

EMT both testified that K.H. sounded and appeared scared.

K.H.’s severe physical injuries are evident from the photo exhibits

and the testimony of the officer, EMT, and K.H. herself. Like the victim in

Schertz, K.H. was severely beaten. See Schertz, 328 N.W.2d at 321–22.

However, Albright beat K.H. much longer than the defendant beat the
 21

victim in Schertz. See id. Like the defendant in Cross, who confined his

victim for twelve hours of torture, Albright confined K.H. to the house and

then to his car for around thirteen hours and subjected K.H. to a multitude

of different physical pains. See Cross, 308 N.W.2d at 27.

Therefore, we find substantial evidence exists to support a finding

that Albright tortured K.H. Accordingly, Albright’s counsel was not

ineffective for failing to raise whether substantial evidence existed on the

issue of torture at trial.

V. Whether the District Court Erred in Submitting Kidnapping
in the Second Degree as a Lesser Included Offense of Kidnapping in
the First Degree.

Albright argues the district court erred in instructing the jury on

kidnapping in the second degree as a lesser included offense of kidnapping

in the first degree. The State argues because no prejudice resulted from

this instruction, his argument must fail. We agree.

We review challenges to jury instructions for correction of errors at

law. State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010). In doing so, we
determine whether the challenged instruction accurately states the law

and whether substantial evidence supports it. State v. Predka, 555 N.W.2d

202, 204 (Iowa 1996). We are not required to reverse unless the error was

prejudicial to the defendant. State v. Spates, 779 N.W.2d 770, 775 (Iowa

2010).

When a jury convicts a defendant of a greater offense, no prejudice

results from the jury considering his guilt of a lesser offense. State v.

Douglas, 485 N.W.2d 619, 623 (Iowa 1992). Here, the jury convicted

Albright of kidnapping in the first degree. Therefore, the court’s

instruction to consider kidnapping in the second degree did not prejudice

Albright.
 22
VI. Whether Counsel Was Ineffective by Failing to Object to and
by Introducing Evidence of Albright’s Other Crimes, Wrongs, or Other
Acts.

Albright argues he suffered prejudice by his counsel’s failure to

object to the prosecution’s introduction of and his counsel’s own

introduction of his prior bad acts. To be ineffective, we require a showing

of “more than mere ‘[i]mprovident trial strategy, miscalculated tactics,

mistake, carelessness or inexperience’ ” to find counsel failed to perform

an essential duty. State v. Cromer, 765 N.W.2d 1, 8 (Iowa 2009) (alteration

in original) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)).

Here, Albright claims defense counsel not only failed to object to evidence

of Albright’s other crimes, wrongs, or other acts, but affirmatively

introduced evidence of Albright’s other crimes, wrongs, or other acts. This

leads us to believe that defense counsel’s trial strategy may have included

the admissibility of these matters.

We cannot tell from the record what was going through defense

counsel’s mind when he allowed such matters into evidence without

objection and then introduced similar matters into evidence. Under these

circumstances, “[w]e prefer to reserve such questions for postconviction

proceedings so the defendant’s trial counsel can defend against the

charge.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). Accordingly, we

will not reach these issues on direct appeal. Of course, Albright can raise

them in a postconviction-relief action if he so desires.

VII. Whether the District Court Erred in Ordering Albright to
Pay Restitution Without First Considering His Reasonable Ability to
Pay.

We review restitution orders for correction of errors at law. State v.

Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). “[W]e determine whether the

court’s findings lack substantial evidentiary support, or whether the court
 23

has not properly applied the law.” Id. (quoting State v. Bonstetter, 637

N.W.2d 161, 165 (Iowa 2001)).

A. Relevant Statutory Provisions. Prior to addressing the

restitution issue, it is important to review the statutory scheme of our

restitution statutes contained in chapter 910. The Code defines restitution

as the “payment of pecuniary damages to a victim in an amount and in

the manner provided by the offender’s plan of restitution.” Iowa Code

§ 910.1(4). The Code defines pecuniary damages as

all damages to the extent not paid by an insurer on an
insurance claim by the victim, which a victim could recover
against the offender in a civil action arising out of the same
facts or event, except punitive damages and damages for pain,
suffering, mental anguish, and loss of consortium. Without
limitation, “pecuniary damages” includes damages for
wrongful death and expenses incurred for psychiatric or
psychological services or counseling or other counseling for
the victim which became necessary as a direct result of the
criminal activity.

Id. § 910.1(3).

The Code also includes the following as items of restitution:

fines, penalties, and surcharges, the contribution of funds to
a local anticrime organization which provided assistance to
law enforcement in an offender’s case, the payment of crime
victim compensation program reimbursements, payment of
restitution to public agencies pursuant to section 321J.2,
subsection 13, paragraph “b”, court costs including
correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9,
including the expense of a public defender, and the
performance of a public service by an offender in an amount
set by the court when the offender cannot reasonably pay all
or part of the court costs including correctional fees approved
pursuant to section 356.7, or court-appointed attorney fees
ordered pursuant to section 815.9, including the expense of a
public defender, and payment to the medical assistance
program pursuant to chapter 249A for expenditures paid on
behalf of the victim resulting from the offender’s criminal
 24
activities including investigative costs incurred by the
Medicaid fraud control unit pursuant to section 249A.50.

Id. § 910.1(4).

After the Code lists what items are included as restitution, the Code

then instructs the court on how it should order restitution. Id. § 910.2(1).

It creates two categories of restitution. See id. The items in the first

category are restitution “to the victims of the offender’s criminal activities

[and] to the clerk of court for fines, penalties, [and] surcharges.” Id. The

court is required to order restitution for the items in this first category

regardless of the offender’s reasonable ability to pay. Id.

The items of restitution in the second category are

for crime victim assistance reimbursement, restitution to
public agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, court costs including correctional fees
approved pursuant to section 356.7, court-appointed attorney
fees ordered pursuant to section 815.9, including the expense
of a public defender, when applicable, contribution to a local
anticrime organization, or restitution to the medical
assistance program pursuant to chapter 249A.

Id. The court can only order restitution for items in this second category

to the extent the offender has the reasonable ability to pay. Id. If the court

finds an offender is not reasonably able to pay all or a part of the items in

the second category, the court may order community service in lieu of

restitution under the terms and conditions set forth in the Code. Id.

§ 910.2(2).

The Code also instructs the court on how it is to obtain the amount

of each item of restitution listed in section 910.2(1). Id. § 910.3. The

county attorney is to

prepare a statement of pecuniary damages to victims of the
defendant and, if applicable, any award by the crime victim
compensation program and expenses incurred by public
agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, and shall provide the statement to the
 25
presentence investigator or submit the statement to the court
at the time of sentencing.

Id.

The clerk of court is required to

prepare a statement of court-appointed attorney fees ordered
pursuant to section 815.9, including the expense of a public
defender, and court costs including correctional fees claimed
by a sheriff or municipality pursuant to section 356.7, which
shall be provided to the presentence investigator or submitted
to the court at the time of sentencing.

Id. If the county attorney or the clerk of court provides these items of

restitution to the presentence investigator, these items shall be included

in the presentence report. Id. If the amount of pecuniary damages is “not

available at the time of sentencing, the county attorney shall provide a

statement of pecuniary damages incurred up to that time to the clerk of

court.” Id. The Code requires the county attorney to provide this

statement to the clerk of court no later than thirty days after sentencing.

Id.

At the time of sentencing, the court is required to set out the amount

of restitution, including the amount of public service the offender must

perform as restitution and the persons to whom the offender must pay.

Id. The Code recognizes that the full amount of restitution may not be

available at the time of sentencing. Id. If the court cannot determine the

full amount of restitution at the time of sentencing, “the court shall issue

a temporary order determining a reasonable amount for restitution

identified up to that time.” Id.

If the court enters a temporary order, the court shall issue a

permanent or supplemental order setting the full amount of restitution.

Id. If necessary, the court shall enter further supplemental orders. Id.

The temporary, permanent, and supplemental orders are the plan of
 26

restitution of the court. Id. The plan of restitution is part of the sentencing

process of the offender. State v. Harrison, 351 N.W.2d 526, 528 (Iowa

1984). After the plan of restitution is ordered, “the next step is establishing

a plan of payment.” Id.

While an offender is incarcerated, the director of the Iowa

Department of Corrections shall prepare a plan of payment in accordance

with the department’s administrative rules. Iowa Code § 910.5(1)(d), (5);

see also Iowa Admin. Code r. 201—20.11 (administrative rules governing

plans of restitution while offender is incarcerated). The director of the Iowa

Department of Corrections must determine the plan of restitution as a

condition of work release or parole. Iowa Code § 910.5(2), (3), (4).

If the offender is on probation, the office or individual charged with

supervising the offender while on probation reviews the plan of restitution

and submits a plan of payment to the sentencing court. Id. § 910.4(2)(a).

All of these determinations may be subject to review by the court if the

offender or the office or individual who prepared the offender’s restitution

plan petitions the court. Id. § 910.7(1). The office or individual preparing

the plan of payment is required to forward the plan to the clerk of court in

the county in which the offender was sentenced. Id. § 910.6. If an offender

files a petition within thirty days from the entry of the plan of payment, we

consider the petition under section 910.7(1) an extension of the criminal

matter allowing for appointment of counsel. State v. Jose, 636 N.W.2d 38,

47 (Iowa 2001).

B. Application of Relevant Statutory Provisions Generally. The

first order of business by the district court is to determine the plan of

restitution. In an ideal world, all amounts of restitution would be before

the court at the time of sentencing. By this decision, we are urging the

sentencing court to take whatever steps necessary to ensure the items of
 27

restitution are before the court at the time of sentencing. If not all of the

items of restitution are available at the time of sentencing, the Code allows

the sentencing court to file temporary, supplemental, and permanent

orders prior to the final plan of restitution. Iowa Code § 910.3. This

constellation of orders is the plan of restitution under the Code. Id.

A plan of restitution is not complete until the court issues the final

restitution order. State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999).

Until the court issues the final restitution order, the court is not required

to consider the offender’s reasonable ability to pay. Id. Restitution orders

entered by the court prior to the final order are not appealable as final

orders or enforceable against the offender. The reason for these orders

being nonappealable or enforceable is that the final order of restitution

must take into account the offender’s reasonable ability to pay. Iowa Code

§ 910.3.

Once the court has all of the items of restitution before it, it must

determine a final amount of restitution and/or community service in its

final order. To do this the court must determine restitution for the victim

and court fines, penalties, and surcharges payable to the clerk of court.

The court is required to assess these amounts against the offender

regardless of the offender’s reasonable ability to pay. Id.

The court can only assess the remaining items of restitution against

the offender in an amount commensurate with the offender’s reasonable

ability to pay. Id. We discussed the meaning of reasonable ability to pay

in a case discussing the predecessor to section 910.3. 2 See State v.

Haines, 360 N.W.2d 791, 793–94 (Iowa 1985). The inclusion of the

reasonable-ability-to-pay requirement makes these restitution provisions

2The statute in question was Iowa Code section 910.2 (Supp. 1983).
 28

constitutional. Id. In Haines, we relied on a United States Supreme Court

decision discussing an Oregon restitution statute. Id. at 794. The

Supreme Court said several times that a defendant has the reasonable

ability to pay when he or she can do so “without hardship.” Fuller v.

Oregon, 417 U.S. 40, 53–54, 94 S. Ct. 2116, 2124–25 (1974).

We also articulated an undue hardship standard as “inherent in

Iowa’s traditional administration of probation considerations.” State v.

Rogers, 251 N.W.2d 239, 245 (Iowa 1977) (en banc). In Rogers, we said a

court should not order payment of restitution unless the convicted person

“is or will be able to pay it without undue hardship to himself or

dependents, considering the financial resources of the defendant and the

nature of the burden payment will impose.” Id.

Other states have adopted similar standards regarding reasonable

ability to pay. Massachusetts has also adopted the financial hardship

standard. See Commonwealth v. Henry, 55 N.E.3d 943, 953–54 (Mass.

2016). In Henry, the Massachusetts high court clarified the legal standard

in the state for determining a defendant’s reasonable ability to pay

restitution. See id. It held,

[T]he judge must consider the financial resources of the
defendant, including income and net assets, and the
defendant’s financial obligations, including the amount
necessary to meet minimum basic human needs such as food,
shelter, and clothing for the defendant and his or her
dependents.

Id. at 953. “Restitution payments that would deprive the defendant or his

or her dependents of minimum basic human needs would cause

substantial financial hardship.” Id. at 954.

The Michigan courts have similarly held the standard of whether a

defendant has the reasonable ability to pay is whether he or she can do so

without “substantial hardship.” See People v. Jackson, 769 N.W.2d 630,
 29

636 (Mich. 2009) (“[T]he entity deciding whether to require repayment

must take cognizance of the individual’s resources, the other demands on

his own and family’s finances, and the hardships he or his family will

endure if repayment is required. The purpose of this inquiry is to assure

repayment is not required as long as he remains indigent.”).

In Florida, analysis of the reasonable ability to pay similarly

considers financial hardships a defendant would incur if ordered to pay

restitution. Fla. Stat. Ann. § 775.089(6) (West, Westlaw through 2018 2d

Reg. Sess.). There, in determining ability to pay, the court must consider

the financial resources of the defendant, the present and potential future

financial needs and earning ability of the defendant and his or her

dependents, and other factors as the court deems appropriate. Id.;

Pettway v. State, 502 So. 2d 1366, 1367 (Fla. Dist. Ct. App. 1987).

We find the sentencing court should consider all these factors when

awarding the final amount of restitution based on the offender’s

reasonable ability to pay. If a defendant does not have the reasonable

ability to pay the items, the court has three alternatives. First, the court

may not order restitution for the item. Second, the court may order

restitution in an amount less than the full amount of the item. Third, the

court may order the offender to pay none or part of the amount of an item

of restitution and perform community service in lieu of that payment under

section 910.2. Of course, if in the future the offender obtains the

reasonable ability to pay an item of restitution not previously assessed,

the court may modify the plan of restitution upon petition. Iowa Code

§ 910.7.

In summary, we urge courts to do everything possible to have all

items of restitution before the court at the time of sentencing. Courts must

wait to enter a final order of restitution until all items of restitution are
 30

before the court. Once the court has all the items of restitution before it,

then and only then shall the court make an assessment as to the offender’s

reasonable ability to pay. A court should make every effort to determine

an offender’s financial condition as early as possible. This may require the

offender filing an updated financial statement, a colloquy with the

offender, or both. A court cannot impose restitution on an offender for the

items subject to the offender’s reasonable ability to pay if the offender does

not have a reasonable ability to pay those items. Finally, any temporary,

permanent, or supplemental order regarding restitution is not appealable

or enforceable until the court files its final order of restitution. 3

C. Application of Relevant Statutory Provisions to This Case.

Here the court found Albright had the reasonable ability to pay and

ordered restitution for items in the second category of restitution without

having the amount of each item of restitution before it. This is contrary to

the statutory scheme as outlined in this opinion. For these reasons, we

vacate the district court’s sentencing order regarding restitution and

remand the case to the district court to order restitution in a manner

consistent with this opinion.

VIII. Disposition.
We affirm Albright’s convictions for willful injury causing bodily

injury and kidnapping in the first degree. On direct appeal, we do not

reach Albright’s claims of ineffective assistance of counsel for his counsel’s

failure to object to and introduction of evidence of Albright’s other crimes,

wrongs, or other acts. Finally, we vacate the restitution part of the

3If not all the items of restitution are available at the time of sentencing, the court
may ask the defendant to waive his or her presence at the supplemental proceeding where
the ability to pay determination will be made and the final plan of restitution will be
entered.
 31

sentencing order and remand the case to the district court to order

restitution in a manner consistent with this opinion.

JUDGMENT OF CONVICTIONS AFFIRMED; SENTENCES

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

All justices concur except McDonald, J., who takes no part.