                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0154
                               Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYREE LEE YOUNG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie Kunkle Vaudt,

Judge.



      Tyree Young appeals his conviction and sentence for domestic abuse

assault. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

      After he assaulted his wife, Tyree Young was charged with three counts of

domestic abuse assault: count I, domestic abuse assault by knowingly impeding

the normal breathing or circulation of blood causing bodily injury, in violation of

Iowa Code section 708.2A(5) (2015); count II, domestic abuse assault by use or

display of a dangerous weapon, in violation of section 708.2A(2)(c); and count III,

domestic abuse assault causing bodily injury, in violation of section 708.2A(2)(b).

Count II was dismissed, and a jury found Young guilty of the crimes alleged in

counts I and III. He was sentenced to a term of imprisonment and ordered to pay

a fine, restitution, and court costs. On appeal, he contends the district court

erred in denying his motion for new trial, alleging the verdict concerning the

domestic abuse assault by strangulation charge was not supported by the weight

of the evidence. He also asserts the district court entered an illegal sentence in

taxing court costs associated with the dismissed charge. We affirm.

      I. Background facts. Young suggested to his wife of three years that

they have “a threesome.” When she said she did not want to, Young became

upset, and he commanded his wife to go to their bedroom. He started to take his

belt off and asked his wife if she wanted it across the face or buttocks. She

started crying and said, “Please don’t do this,” but realizing she was going to get

struck with the belt anyway, she chose the buttocks.

      Young told his wife to get naked and lay flat on the bed. She complied but

kept on crying and telling Young, “Please don’t do this.” Young hit his wife twice

on the buttocks with the belt, causing her pain and leaving red welts on her body.

Young told his wife to get up off the bed and asked her how it felt. When she told
                                          3


him it hurt and stung a little, Young said, “That’s it?” Then he told her to lie down

because she was “getting two more” before striking her with the belt two more

times.

         Young left the home for about a half hour. When he returned, Young and

his wife had sex. The next day, Young’s wife called the Iowa Coalition Against

Domestic Violence, an organization she used to work for. She was given the

number for Children & Families of Iowa and was told to call the police. That

afternoon she left work early and went to the courthouse because she “needed to

get help.” She requested and obtained a no-contact order, saying she “had

enough” and “wanted to get [Young] out.” The police were called, and an officer

was sent to the courthouse.

         A City of Des Moines police officer interviewed Young’s wife at the

courthouse. She appeared to the officer to be distraught, nervous, and scared.

He testified, “She gave me every indication that she was reluctant to be [at the

courthouse] and something had happened to her.” She told the officer she had

been the victim of an assault where her husband had placed his hands around

her throat causing squeezing that had made it difficult for her to breathe and left

her coughing and gagging. She also told the officer about being struck by the

belt. The officer observed marks on Young’s wife’s body that appeared to be

consistent with the description of the assault. Photographs of the marks were

taken by police identification technicians. The photographs depict red marks on

Young’s wife’s back and a mark on the left side of her neck.

         At trial, Young’s wife testified that Young had struck her with a belt but

denied he had strangled her.       She professed her love for her husband and
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testified the injury to her neck was a hickey Young gave her during their post-

assault lovemaking.     She admitted making the statements the police officer

testified to. She claimed she lied to the officer because she “was mad.” She

testified that she wanted Young

       to feel the pain that I felt that he made me feel that night. And I
       wanted—I wanted him to get the maximum punishment because he
       made me hurt. He made me feel so small. He made me feel like a
       dog. And I just made the story bigger than what it was.

Later, after charges were filed against Young, Young’s wife met with the

prosecutor and talked with him on the phone a few times, stating she had lied

about the strangulation and wanted the charges dropped. She did not want to

see Young go to jail, claiming he just needed help. She also wrote a letter to the

judge claiming she had lied to the police officer. A month after the assault,

Young’s wife cancelled the no-contact order.

       II. Motion for new trial. In light of Young’s wife’s recantation at trial about

the strangulation, Young asserts the jury’s finding of guilt with regard to the

charge of domestic abuse assault by knowingly impeding the normal breathing or

circulation of blood causing bodily injury is contrary to the weight of evidence and

the trial court therefore erred in denying his motion for new trial. We review the

district court’s refusal to grant a new trial on a weight-of-the-evidence claim for an

abuse of discretion. See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).

We do not review the underlying question of whether the verdict is against the

weight of the evidence.     See id.    A verdict is contrary to the weight of the

evidence where “a greater amount of credible evidence supports one side of an
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issue or cause than the other.” State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998)

(quoting Tibbs v. Florida, 457 U.S. 31, 38 (1982)).

       [T]he district court has considerable discretion when determining a
       motion for new trial under the weight-of-the-evidence test. Except
       in the extraordinary case where the evidence preponderates
       heavily against the verdict, trial courts should not lessen the jury’s
       role as the primary trier of facts and invoke their power to grant a
       new trial. A trial court should not disturb the jury’s findings where
       the evidence they considered is nearly balanced or is such that
       different minds could fairly arrive at different conclusions.

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

       In reaching its verdict, the jury made its own determination of whether

Young’s wife’s testimony was credible. See State v. Nitcher, 720 N.W.2d 547,

556 (Iowa 2006). “The jury [was] free to believe or disbelieve any testimony as it

[chose] and to give weight to the evidence as in its judgment such evidence

should receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). “The very

function of the jury is to sort out the evidence presented and place credibility

where it belongs.” State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984); see also

State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (“It 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.”). “The one exception . . . is that ‘the testimony of a

witness may be so impossible and absurd and self-contradictory that it should be

deemed a nullity by the court.’” State v. Lopez, 633 N.W.2d 774, 785 (Iowa

2001) (citations omitted).

       At a posttrial hearing considering Young’s motion for new trial, the district

court concluded:
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       [T]here is proof beyond a reasonable doubt and that the jury verdict
       is not contrary to the weight of the evidence. As I indicated earlier,
       I do believe that a reasonable jury could find that in fact the
       defendant strangled or choked the victim, and there was both
       testimonial evidence to that effect and exhibits to that effect.
              My recollection is that there were photographs regarding that
       very issue. And consequently, I do think that the jury could find, as
       they did, that there was choking and strangulation here and that the
       State met its burden of proof of beyond a reasonable doubt.

In its written ruling denying Young’s motion for new trial, the district court

concluded, “Testimonial and documentary evidence submitted at trial could

establish beyond reasonable doubt that Mr. Young strangled and choked his wife

. . . if the jury chose to believe this evidence. The jury so chose.”

       Victims often recant in domestic violence cases.         See Irving v. Emp’t

Appeal Bd., 883 N.W.2d 179, 216 (Iowa 2016) (Waterman, J., concurring in part,

dissenting in part) (citing State v. Smith, 876 N.W.2d 180, 187-88 (Iowa 2016)).

In fact, the rate of recantation among domestic violence victims has been

estimated between eighty and ninety percent. See Smith, 876 N.W.2d at 194

(Waterman, J., dissenting) (citing Douglas E. Beloof & Joel Shapiro, Let the Truth

Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out

of Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1, 3–4

(2002)).

       The jury was free to disbelieve Young’s wife’s recantation and to believe

the statements she made to the investigating officer some hours after the crime

occurred.    That evidence was corroborated by the physical evidence—the

photographs of the marks on Young’s wife’s neck. We conclude, like the trial

court, that the greater weight of the evidence supports the jury’s verdict. See

State v. Tharp, 372 N.W.2d 280, 282 (Iowa Ct. App. 1985) (affirming trial court’s
                                             7


denial of motion for new trial based, in part, on its determination the victim’s

recantation was not credible).        This is not that extraordinary case where the

evidence preponderates heavily against the verdict. Thus, the district court did

not abuse its discretion in denying Young’s motion for new trial. We therefore

affirm his convictions.

       III. Court costs. Count II was dismissed, and the jury found Young guilty

of counts I and III. Relative to the court-costs issue on appeal, the sentencing

form order provided:

             DISMISSAL OF OTHER COUNTS AND CASES. Upon the
       recommendation of the State, the following counts/cases are
       dismissed: COUNT II WAS DISMISSED BY THE COURT AT THE
       CLOSE OF THE STATE’S CASE.
             [Young] is ordered to pay Court costs on these
       counts/cases.

       Young contends the district “court’s order that [Young] be assessed all

costs of the action rather than only the costs associated with the counts which

[Young] was convicted amounted to a statutorily unauthorized, and therefore

illegal, sentence.”1 He asks that the portion of the sentencing order taxing costs

to him be vacated and remanded for the entry of a corrected order. Citing State

v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991), Young asserts the costs associated



1
  This is another appeal in the long line of appeals spawned by the Petrie decision.
Some twenty-four recent court-costs-associated-with-dismissed-charges cases filed by
this court were listed in State v. Johnson, 887 N.W.2d 178, 180-81 n.1 (Iowa Ct. App.
2016). And the cases keep coming. Since Johnson was filed on September 14, 2016,
this court has filed an additional five opinions dealing with this issue: State v. Smith, No.
15-2194, 2017 WL 108309, at *5 (Iowa Ct. App. Jan. 11, 2017); State v. Hursey, No. 16-
0187, 2016 WL 6270000, at *4 (Iowa Ct. App. Nov. 26, 2016); State v. Kemmerling, No.
16-0221, 2016 WL 5933408, at *1-2 (Iowa Ct. App. Nov. 12, 2016); State v. Trombone,
No. 15-1696, 2016 WL 5484893, at *5-6 (Iowa Ct. App. Sept. 28, 2016); State v. Patrick,
No. 15-0268, 2016 WL 5485065, at *1-2 (Iowa Ct. App. Sept. 28, 2016).
                                            8


with his prosecution should be proportionate, i.e., that he should be assessed

with two-thirds of the costs because he was convicted of two of three charges.

       The State agrees the district court exceeded its authority by assessing

court costs for the dismissed count. But the State correctly notes that the court

costs may be the same whether or not count II was charged. See Johnson, 887

N.W.2d at 182; see also, e.g., Commonwealth v. Soudani, 165 A.2d 709, 711

(“We fail to perceive how the costs of prosecution in the instant case may be

divided or apportioned between the first and second counts of the indictment.”).

The State suggests, “On remand, the record needs to be analyzed to determine if

any of the assessed costs were clearly attributable or discrete to the dismissed

count, and only those costs need to be removed from the assessment.”

       In a case such at this—where Young was charged in one multi-count trial

information, was found guilty of two charges, and had one dismissed—there are

three categories of costs under Petrie:

       (1) those clearly attributable to the charges on which the defendant
       is convicted, (2) those clearly attributable to dismissed charges,
       and (3) those not clearly associated with any single charge. A
       defendant may be assessed costs clearly attributable to the
       charges on which the defendant is convicted but may not be
       assessed costs clearly attributable to dismissed charges. “Fees
       and costs not clearly associated with any single charge should be
       assessed proportionally against the defendant.”

Johnson, 887 N.W.2d at 181-82 (internal citations omitted) (quoting Petrie, 478

N.W.2d at 622).2


2
  A panel of this court recently pointed out that, “[a]lthough the assessment of costs for
dismissed charges violates Petrie, it does not appear to violate the relevant statute [Iowa
Code § 910.2].” Smith, 2017 WL 108309, at *4. Furthermore, “[t]here is nothing in the
statutes that requires or even allows the district court to allocate the costs as Petrie
requires. To the contrary, the district court can assess costs for the entire “case” where
                                           9


         The fact that count II was dismissed does not automatically establish that

a part of Young’s assessed court costs are clearly attributable to the dismissed

count. Here, the record shows just the opposite. The docket report before us—

dated January 25, 2016, and prepared three days after Young filed his notice of

appeal—shows a total of $600 in court costs and $316 in other costs accrued as

of that date.3 These costs would have been the same even had the State not

charged Young with the later dismissed count II. Young makes no allegation to

the contrary. We conclude the total assessed court costs are clearly attributable

to the counts for which Young was found guilty and, therefore, fully assessable to

him.     Additionally, it is telling that Young does not even claim he was over-

assessed court costs. See id. at 182. In this illegal sentence claim, it is up to

Young to establish an over-assessment of court costs. See id. He has failed to

do so.

         Nevertheless, Young asserts the costs associated with his prosecution

should be proportionate, i.e., that he should be assessed with two-thirds of the

costs. See Petrie, 478 N.W.2d at 622 (“Since the defendant was only convicted

on one of three counts he should be required to pay only one-third of these

costs.”).   Young misreads Petrie. In Petrie, it is clear fees and costs were

incurred relative to the dismissed charges. Id. Apparently—although it is not

clear from the opinion—there were fees and costs incurred that were not clearly


there is a multi-count trial information so long as there was a “judgment of
conviction . . . rendered” on any count in the trial information.” Id. (quoting Iowa Code
§ 910.2).
3
  “Court costs” consists of: $100 filing fee, $120 court reporting fee (trial), $40 court
reporting fee (hearing to cancel no-contact order), $40 court reporting fee (preliminary
hearing), $100 domestic/sexual abuse, $100 domestic/sexual abuse, and $100 jury fees.
The $316 in “other” costs is for jury/witness reimbursement.
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associated with any particular charge, and it was those fees and costs that were

to be assessed proportionally, i.e., at one-third, since Petrie pled guilty to one of

three charges. See id. (“Fees and costs not clearly associated with any single

charge should be assessed proportionally against the defendant.”). Here Young

does not dispute that all the assessed costs are clearly attributable to the counts

for which he was found guilty. The Petrie court makes no suggestion that the

court costs clearly attributable to the charge to which Petrie pled guilty should be

apportioned. We conclude there are no costs subject to a Petrie apportionment

because there is no showing of any costs not clearly associated with any charge.

       A remand for a corrected sentencing order is not warranted because

Young has failed to show he was over-assessed and he failed to show he was

taxed for costs not clearly associated with any charge. A remand for a corrected

sentencing order would only exalt form over substance because a corrected

order will not change Young’s obligation one iota.

       AFFIRMED.
