                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1758
                                Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KURTIS MICHAEL GREEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Stephen A. Owen,

District Associate Judge.



      Kurtis Green appeals his conviction of domestic abuse assault by

strangulation causing bodily injury and a part of the sentence imposed.

CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.



      Martha J. Lucey, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, and Kristy Brandt, Student Legal Intern, for appellee.



      Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

       Kurtis Green appeals his conviction of domestic abuse assault by

strangulation causing bodily injury and part of the sentence imposed. He argues

his counsel rendered ineffective assistance in failing to adequately challenge the

sufficiency of the evidence to support his conviction. He also argues his counsel

was ineffective in failing to object to certain evidence as in violation of his right to

confrontation.1 Finally, he argues the court erred in ordering him to pay court costs

as restitution.

I.     Background Facts and Proceedings

       Upon the evidence presented at trial, a rational jury could make the

following factual findings.     Shortly before 8:00 a.m. on January 16, 2018,

Commander Charles Pepples and Officer Cory Rose of the Boone Police

Department were dispatched to an apartment complex upon a report from a

neighbor “that there was arguing, fighting, yelling and screaming” coming from

Green’s apartment, where he resided with his girlfriend, A.R. Pepples and Rose

reported to the subject apartment; A.R. answered the door crying, upset, and

distraught.2 A.R. immediately reported that he, referring to Green, “took off.” She

then reported Green had “pulled [her] hair out” and “beat the shit out of” her. A.R.



1 As to the ineffective-assistance claims, Green also requests we exercise plain-
error review. Our supreme court has consistently declined to adopt the plain-error
doctrine. See, e.g., State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016); State v.
Rutledge, 600 N.W.2d 324, 325 (Iowa 1999); State v. McCright, 569 N.W.2d 605,
607 (Iowa 1997). The supreme court transferred this case to us knowing full well
“[w]e are not at liberty to overrule controlling supreme court precedent.” State v.
Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). We decline the request.
2 The officers’ exchange with A.R. was recorded by their body cameras. Some of

the footage was admitted as evidence at trial and played for the jury.
                                          3


additionally reported Green had burnt her with a cigarette the prior evening. She

finally reported Green “choked her out bad” and restricted her airway and breathing

then “conked” her on the head. Pepples testified he observed redness around

A.R.’s neck, on her right shoulder, and on her leg. Rose testified he observed

redness on A.R.’s cheek, left arm, and chest, as well as a scratch on her leg. Rose

took photographs of A.R.’s left upper arm, her left wrist, her left leg, and the right

side of her face all of which depicted redness or scratches.

       The officers ultimately located Green in another residence at the apartment

complex. Green reported he left the apartment because A.R. was intoxicated and

belligerent3 but nothing had happened and he did not know why A.R. had injuries.

After Green was advised he was under arrest, he reported A.R. had assaulted him.

He testified at trial that he woke up on the morning in question at 7:00 a.m. or 7:30

a.m. to a hostile and drunk A.R. According to Green, A.R. then threw a cell phone

and “a glass of water or something at” him. The two then argued, and Green

advised he was leaving. He explained A.R.’s scratches were from a cat in the

residence and the redness on A.R.’s person resulted from the apartment having

no heat.

       Green was charged by trial information with domestic abuse assault by

strangulation causing bodily injury. The matter proceeded to a jury trial. Following

the State’s case-in-chief, Green moved for judgment of acquittal. The motion was

denied, as was the renewal of the generic motion following presentation of the

evidence for the defense. The jury found Green guilty as charged. The matter


3 Both Pepples and Rose testified they did not observe any signs of A.R. being
impaired.
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proceeded to sentencing. In its ensuing sentencing order, the court found Green

to be indigent and unable to pay court-appointed attorney fees. However, the court

stated “he does have some work history and the court costs are minimal . . . and

not beyond his ability to pay in a reasonable period of time under the

circumstances.” The court ordered the payment due immediately and delinquent

if not paid in thirty days. As noted, Green appeals.

II.    Analysis

       A.     Sufficiency of the Evidence

       Green first challenges the sufficiency of the evidence supporting his

conviction. He agrees his counsel’s generic motions for judgment of acquittal were

insufficient to preserve error on his challenge. See, e.g., State v. Schories, 827

N.W.2d 659, 664 (Iowa 2013); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).

He thus argues his counsel rendered ineffective assistance in failing to adequately

challenge the sufficiency of the evidence.4 See State v. Fountain, 786 N.W.2d

260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an exception

to the traditional error-preservation rules.”).

       To succeed on his ineffective-assistance-of-counsel claim, Green must

establish “(1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020); accord Strickland v.

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.” State


4 A recent change in law prevents us from considering ineffective-assistance
claims on direct appeal. See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code
§ 814.7). But this change does not apply to this case. See State v. Macke, 933
N.W.2d 226, 228 (Iowa 2019).
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v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d

159, 169 (Iowa 2015)). When a defendant challenges counsel’s effectiveness in

relation to failing to preserve error on a challenge to the sufficiency of the evidence

for want of an adequate motion for judgment of acquittal, the overarching question

is “whether such a motion would have been meritorious.” See State v. Lilly, 930

N.W.2d 293, 298 (Iowa 2019) (quoting State v. Henderson, 908 N.W.2d 868, 874–

75 (Iowa 2018)). “If the record does not reveal substantial evidence to support the

convictions, counsel was ineffective for failing to raise the issue. 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.” State

v. Albright, 925 N.W.2d 144, 152 (Iowa 2019). We proceed to the merits.

       Challenges to the sufficiency of the evidence are reviewed for corrections

of errors at law. Id. at 150. The court views “the evidence ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly drawn

from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (quoting

State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is considered, not

just that of an inculpatory nature. See Huser, 894 N.W.2d at 490. “[W]e will uphold

a verdict if substantial evidence supports it.” State v. Wickes, 910 N.W.2d 554,

563 (Iowa 2018) (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)).

“Evidence is substantial if, ‘when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.’” Id. (quoting Ramirez, 895 N.W.2d at 890). Evidence is not rendered

insubstantial merely because it might support a different conclusion; the only

question is whether the evidence supports the finding actually made. See Brokaw
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v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010). In

considering a sufficiency-of-the-evidence challenge, “[i]t is not the province of the

court . . . to resolve conflicts in the evidence, to pass upon the credibility of

witnesses, to determine the plausibility of explanations, or to weigh the evidence;

such matters are for the jury.” State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006)

(quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)).

           The State bears the burden of proving every element of a charged offense.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Green does not

challenge the jury instructions employed at trial for the charged crime. As such,

the instructions serve as the law of the case for purposes of reviewing the

sufficiency of the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct.

App. 2018). As to the crime of domestic abuse assault by strangulation causing

bodily injury, the jury was instructed the State was required to prove, among other

elements, that Green’s act of strangling A.R. caused a bodily injury. See Iowa

Code § 708.2A(5) (2018). The jury instructions defined “bodily injury” as “physical

pain, illness, or any impairment of physical condition.” Accord State v. McKee, 312

N.W.2d 907, 913 (Iowa 1981) (adopting Model Penal Code definition of bodily

injury).

           Green only argues the evidence was insufficient to show his act of impeding

the normal breathing of A.R. caused her a bodily injury. The evidence, when

viewed in the light most favorable to the State, reveals the following pertinent facts.

Green “choked [A.R.] out bad,” to the extent that her airway and breathing were

restricted. While photographic evidence was not taken of A.R.’s neck area and the

video evidence was inconclusive, specific testimony was had from Pepples that
                                          7


A.R. exhibited redness around her neck. While reddening of the skin does not

amount to a per se bodily injury, it can certainly serve as evidence of an impairment

of physical condition. State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997). Furthermore,

the jury could rationally infer that being strangled to the point of not being able to

breathe and to an extent causing redness of the skin around the neck would result

in physical pain, which is by itself sufficient to amount to a bodily injury. See

McKee, 312 N.W.2d at 913.

       Viewing the evidence in the light most favorable to the State, as we must,

we conclude the jury could rationally conclude A.R. suffered a bodily injury and the

evidence was therefore sufficient to support the claimed evidentiary deficiency. As

such, we find counsel was not ineffective as alleged.

       B.     Confrontation

       Because A.R. did not testify at trial, Green argues the presentation of her

statements as evidence at trial violated his constitutional right to confrontation.

Because his counsel did not object to the admission of the evidence on

confrontation grounds, this issue is likewise unpreserved. Thus, Green argues his

counsel was ineffective in failing to object.

       The right to confrontation restricts the admission of “‘testimonial statements’

of the sort that ‘cause the declarant to be a “witness” within the meaning of the

Confrontation Clause.’”     State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008)

(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). “If a hearsay statement

made by a declarant who does not appear at trial is testimonial, evidence of that

statement is not admissible under the Confrontation Clause unless the declarant
                                          8


is unavailable to testify at trial and the defendant had a prior opportunity for cross-

examination.” Id.

       With the foregoing confrontation principles in mind, we turn to general

problems concerning review of ineffective-assistance claims on direct appeal. As

a result of record inadequacies, such claims are normally preserved for

postconviction-relief proceedings. State v. Brown, 930 N.W.2d 840, 844 (Iowa

2019). Doing so “allows the parties to develop an adequate record of the claims

and provides the attorney charged with ineffective assistance with the ‘opportunity

to respond to defendant’s claims.’” State v. Harrison, 914 N.W.2d 178, 206 (Iowa

2018) (quoting State v. Soboroff, 798 N.W.2d 1, 8 (Iowa 2011). When an issue is

not raised in the district court and a record developed thereon, it leaves appellate

courts with a skeletal record, upon which the parties’ arguments are often-times

largely speculative. That is exactly what we have here. Considering the claim

would require us to buy into Green’s speculation that A.R. was available to testify

and that Green did not have a prior opportunity for cross-examination. While

Green argues “[t]he record does not conclusively show that [A.R.] was unavailable

to testify” at trial, neither does it affirmatively show she was available. While the

prosecutor may have been misguided in his belief that he could not call A.R. as a

witness in fear of a Turecek violation5 and she was therefore unavailable to testify,


5 A.R. recanted her allegations against Green prior to trial. “The State is not
entitled . . . to place a witness on the stand who is expected to give unfavorable
testimony and then, in the guise of impeachment, offer evidence which is otherwise
inadmissible.” State v. Turecek, 456 N.W.2d 219, 225 (Iowa 1990); see also State
v. Veverka, 938 N.W.2d 197, 201 (Iowa 2020). However, Turecek does not apply
to a situation where, as here, the statements are admissible under the excited-
utterance exception to the hearsay rule. See State v. Tompkins, 859 N.W.2d 631,
639 (Iowa 2015).
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Green also appears to agree it was possible that A.R. was cross-examined at a

prior hearing concerning the canceling of a no-contact order.           The record is

inadequate to determine whether she was or not. And, we agree with the State

that it would be unfair “to allow Green to pocket his objection until his direct appeal,

when the State no longer has the opportunity to remedy the deficiency by laying

additional foundation.” The State is also on point that:

       Without a record on the broader circumstances surrounding the trial,
       it is impossible to construct a counterfactual series of events that
       would have followed a ruling in Green’s favor on this hypothetical
       objection—which means that, as the record currently stands, Green
       cannot carry his burden of establishing a reasonable probability of a
       different result if this claim had been raised below.

We find the record inadequate to consider the claim of a confrontation violation on

direct appeal. Green may pursue the claim in a postconviction-relief proceeding,

if he so chooses.

       C.     Restitution

       In its sentencing order, the court stated Green “does have some work

history and the court costs are minimal . . . and not beyond his ability to pay in a

reasonable period of time under the circumstances.”           The court ordered the

payment due immediately and delinquent if not paid in thirty days.               Green

challenges the sentencing provision finding he had the reasonable ability to pay

court costs as restitution absent “any information as to the amount of court costs.”

The State responds “the sentencing court must have known the amount of court

costs to characterize them as ‘minimal’” and there is no reason to believe the

amount was not “before the court.” We are not persuaded. “Under Albright,

imposition of the fees must await the filing of a final restitution plan and a
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determination of [Green’s] ability to pay.” State v. Smeltser, No. 18-0998, 2019

WL 2144683, at * 1 (Iowa Ct. App. May 15, 2019). That procedure was not

followed here, so we vacate the challenged sentencing provision and remand the

matter to the district court for completion of a restitution plan and a determination

of Green’s reasonable ability to pay.

III.      Conclusion

          We find Green’s conviction is supported by substantial evidence and

counsel was therefore not ineffective in failing to properly challenge the sufficiency

of the evidence. We preserve Green’s claim counsel was ineffective in failing to

object to certain evidence as in violation of his right to confrontation. We thus

affirm Green’s conviction. However, we find the district court did not follow the

proper procedures for the ordering of restitution.        We therefore vacate the

challenged sentencing provision and remand the matter to the district court for

completion of a restitution plan and a determination of Green’s reasonable ability

to pay.

          CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.
