                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2016
                              Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER RYAN HARTNESS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Michael G.

Dieterich, District Associate Judge.



      After being granted discretionary review, the defendant appeals his

conviction for domestic abuse assault, a simple misdemeanor. AFFIRMED.



      Thomas A. Hurd of Glazebrook, Moe, & Hurd, L.L.P., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.

       After being granted discretionary review, Christopher Hartness appeals his

conviction for domestic abuse assault, a simple misdemeanor.               Hartness

maintains the Iowa Constitution guarantees him the right to appeal a simple-

misdemeanor conviction.       Additionally, he argues the district court erred in

refusing to give the requested spoliation instruction to the jury.

I. Background Facts and Proceedings

       In May 2013, Hartness was charged by trial information with domestic

abuse assault causing bodily injury.       The case proceeded to a jury trial in

October of the same year.

       At trial, the complaining witness testified that on the night of the incident,

Hartness had told her he was using a cell phone to record her. She testified that

during at least part of the incident, he was holding the phone in a way that was

“consistent with making a video.” She further testified that she later called the

service provider for the phone and had all of the information stored on the phone,

including any videos, deleted.1       She explained that she did this because

Hartness “would not stop contacting” her and she “wanted the contacts deleted

so that he could not contact [her] anymore.”

       Before the case was submitted to the jury, Hartness requested a spoliation

instruction “with respect to the video that Mr. Hartness said he made of the

incident.” The district court denied Hartness’s request.




1
 The cell phone Hartness used was under a contract between the complaining witness
and the service provider.
                                          3


       The jury returned a guilty verdict for the lesser included offense of

domestic abuse assault, which is a simple misdemeanor.

       In November 2013, the district court entered judgment and sentenced

Hartness to a thirty-day term of incarceration with all but ten days suspended.

He was placed on probation for a period of twelve months.

       Hartness filed a notice of appeal under Iowa Rule of Criminal Procedure

2.73(1), which regulates the appeals of simple misdemeanor convictions. As

such, it was treated as an appeal to the district court. The district court ultimately

ruled that because Hartness’s case was heard by a district associate judge “in

his jurisdiction to hear indictable misdemeanors,” Hartness had no appeal as a

matter of right. The court instructed Hartness to apply for discretionary review

pursuant to Iowa Code section 814.6(2)(d) (2013).

       Hartness applied for discretionary review of his conviction. Our supreme

court granted his application and ordered the parties to also brief whether article

1, section 11 of the Iowa Constitution confers a right of appeal on defendants

where the defendant was tried using district court procedures but was convicted

of only a simple misdemeanor. The supreme court then transferred the case to

us.

II. Standard of Review

       Insofar as Hartness raises a constitutional claim, we review de novo. See

Clarke Cty. Reservoir Comm’n v. Robins, 862 N.W.2d 166, 168 (Iowa 2015).

       We review the district court’s refusal to give a spoliation instruction for

correction of errors at law. See State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa

2004) (“We conclude . . . the trial court does not have discretion to refuse a
                                           4


spoliation instruction when the defendant has generated a jury question on the

spoliation inference. Therefore, the only matter to be reviewed on appeal is

whether the trial court accurately determined the requested instruction did not

have adequate evidentiary support. That type of trial court decision is normally

reviewed for the correction of errors of law.” (citation omitted)).

III. Discussion

       A. Right to Appeal

       Hartness maintains article 1, section 11 of the Iowa Constitution

guarantees a criminal defendant convicted of a simple misdemeanor “some form

of appeal.” The section provides:

       All offenses less than a felony and in which the maximum
       permissible imprisonment does not exceed thirty days shall be tried
       summarily before an officer authorized by law, on information under
       oath, without indictment, or the intervention of a grand jury, saving
       to the defendant the right of appeal; and no person shall be held to
       answer for any higher criminal offense, unless on presentment or
       indictment by a grand jury, except in cases arising in the army, or
       navy, or militia, when in actual service, in time of war or public
       danger.

(Emphasis added).

       In Tyrrell v. Iowa District Court, 413 N.W.2d 674, 674 (Iowa 1987), our

supreme court was asked to consider a similar factual situation.       There, the

defendant was charged with an indictable misdemeanor and found guilty. Tyrrell,

413 N.W.2d at 674. A district associate judge sentenced the defendant, and the

defendant appealed to the district court. Id. The district court dismissed the

appeal, concluding the defendant only had the right to apply for discretionary

review. Id. at 675. Our supreme court upheld the dismissal, stating:
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              We do not believe it was the intent of the legislature that a
       person actually convicted of a simple misdemeanor under district
       court procedures should have an appeal as a matter of right. If [the
       defendant] had been charged originally with a nonindictable offense
       and had been tried under the rules applicable to magistrates, it is
       true he would have an appeal to the district court, but he has
       access to the district court as a matter of right only once; any
       review beyond that initial appeal would be discretionary.
              When a defendant . . . has been charged initially with an
       indictable offense, and is thereby given access to all of the
       protections of district court practices and procedures, he has
       received the benefits of those practices and procedures at one
       point, and we believe that is all to which he is entitled. Any further
       review by an appellate court is purely discretionary.

Id. at 675–76. We acknowledge the supreme court was not asked to consider

the applicability of the Iowa Constitution in reaching its decision.

       However, in State v. Hinners, 471 N.W.2d 841, 843 (Iowa 1991), the court

reiterated that “[i]n Iowa the right of appeal is statutory and not constitutional.”2

See also Iowa Dep’t of Revenue v. Iowa Merit Employ. Comm’n, 243 N.W.2d

610, 614 (Iowa 1976) (“[A]ppellate review is purely statutory and subject to strict

construction.” (alteration in original)); Van der Burg v. Bailey, 223 N.W. 515, 516

(Iowa 1929) (“The right of appeal is not an inherent or constitutional right. The

legislature may give or take it away, at its pleasure.”).

       Because the right to appeal, other than a crime charged and tried as a

simple misdemeanor, is strictly statutory and our supreme court has already

ruled that there is no such right where a defendant was ultimately convicted of a

simple misdemeanor after being tried with district court procedures, the district

court’s dismissal of Hartness’s appeal was proper. See State v. Hastings, 466



2
  In Hinners, the defendant was charged with driving while barred, a serious
misdemeanor. 471 N.W.2d at 842.
                                        6


N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa

Supreme Court precedent.”).

       B. Spoliation Instruction

       Next, Hartness maintains the district court erred in denying his request for

a spoliation instruction.

       The trial court “does not have discretion to refuse a spoliation instruction

when the defendant has generated a jury question on the spoliation inference.”

Hartsfield, 681 N.W.2d at 631. The inference is permitted when “(1) evidence

exists, (2) it is in the possession or under the control of the State, (3) it would

have been admissible at trial, and (4) the State intentionally destroyed the

evidence.” Id.

       Even if we consider the facts in the light most favorable to Hartness, the

State was never in possession of the video and it was the complaining witness,

not the State, who intentionally destroyed the evidence. However, he asks that

we consider the complaining witness an agent of the State “because the State

and the complaining witness are engaged in a joint endeavor to prosecute” him.

Hartness concedes there is no Iowa case law to support his proposed extension

of the spoliation instruction, but he asks us to consider other precedent where the

actions of third parties are attributed to the State. Specifically, he cites Fourth

Amendment case law involving situations wherein a private citizen and

government official worked together to conduct a search.

       Even if we were convinced by Hartness’s argument, here there was no

evidence presented that the complaining witness was acting in concert with or at

the behest of the State.    Moreover, the State denied having any knowledge
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whether such a video ever existed. See United State v. Jacobsen, 466 U.S. 109,

113 (1984) (“This Court has also consistently construed this protection as

proscribing only government action; it is wholly inapplicable ‘to a search or

seizure, even an unreasonable one, effected by a private individual not acting as

an agent of the Government or with the participation or knowledge of any

government office.’” (citation omitted)).

       Because the State never possessed nor intentionally destroyed the video,

the district court properly denied Hartness’s request for a spoliation instruction.

       We affirm Hartness’s conviction.

       AFFIRMED.
