                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0867
                               Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARIUS LEJAUN WADE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David P.

Odekirk, Judge.



      Defendant appeals his conviction for domestic abuse assault, third

offense.   CONVICTION AFFIRMED, SENTENCE VACATED IN PART AND

REMANDED.




      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

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

General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

        Darius Wade appeals his conviction for domestic abuse assault, third

offense. We find the district court did not err by admitting hearsay evidence.

Also, Wade has not shown he received ineffective assistance because defense

counsel did not: (1) object to the amended minutes of testimony; (2) request a full

colloquy when Wade admitted to previous convictions for domestic abuse

assault; or (3) object on hearsay grounds to certain evidence. We affirm Wade’s

conviction for domestic abuse assault, third or subsequent offense. We reverse

the assessment of court costs and remand this issue to the district court.

        I.    Background Facts & Proceedings

        On the evening of November 4, 2016, C.B. called Wade, her former

boyfriend, and asked him to have a drink with her. C.B. picked Wade up at his

home and drove with him to the Park Road Inn, where they each had a few

alcoholic beverages. Later, C.B. drove Wade back to his home, where C.B. and

Wade got into an argument.        C.B. testified Wade hit her and she did not

remember much after that, except she found herself in the bathtub, got herself

out, and she left Wade’s home.

        Officer Kenneth Schaaf testified he was on patrol at about 1:30 a.m. on

November 5, when a car drove up behind him flashing its lights and honking its

horn.    Officer Schaaf stopped to speak to the driver, C.B., who was “crying

hysterically.” He observed C.B. had bruising and fresh blood on the side of her

face. C.B. told Officer Schaaf she had been assaulted by Wade. After speaking
                                          3


to Officer Schaaf, C.B. went to her cousin’s home.1 Robin Fankhauser testified

C.B. was “[c]rying, screaming, yelling, freaking out.” She stated C.B. had a black

eye, some bleeding, and a piercing had been pulled out.

        Much later on November 5, at 11:25 p.m., C.B. went to the hospital with a

severe headache. C.B. told Elizabeth Batterson, a nurse practitioner, she “had a

very spotty memory of what had happened.” She told Batterson she was scared.

Batterson diagnosed C.B. with a concussion. She also observed bruising and a

small laceration. Batterson stated C.B.’s injuries were “consistent with some sort

of traumatic assault or altercation.” Officer Randy Girsch observed C.B.’s injuries

at the hospital and had photographs taken.

        Initially, Wade denied seeing C.B. on the night in question. He stated he

spent the night with Kasandra Baldwin.         When officers questioned Baldwin,

however, she stated Wade called her at about 1:45 a.m. on November 5 and

asked her to pick him up at his home, which she did. Wade then told officers he

had been at the Park Road Inn with C.B. but did not mention she had been at his

house. He later testified C.B. came to his home after they left the bar and she

assaulted him. Wade stated C.B. did not have any injuries when she left his

home.

        Wade was charged with Count I, domestic abuse assault, third or

subsequent offense, and Count II, domestic abuse assault causing bodily injury. 2

After the State presented its case, it moved to amend Count I to domestic abuse

1
  C.B. told Officer Schaaf she would go down to the police station to make a statement
after she went to her cousin’s home, but she did not appear. C.B. testified during the
criminal trial she did not remember speaking to Officer Schaaf.
2
  C.B. and Wade had lived together within the past year before the incident, therefore
meeting the definition of “domestic abuse” under Iowa Code section 236.2(2)(d) (2016).
                                         4


assault causing bodily injury, third or subsequent offense, and to dismiss Count

II. When asked if the defense had any objections, defense counsel stated, “Not

at all, Your Honor.” The court granted the request to amend the trial information.

A jury found Wade guilty of domestic abuse assault causing bodily injury.

       Wade stated he wanted a jury trial on the issue of whether he had

previous convictions for domestic abuse assault. He then changed his mind and

admitted to the prior offenses. The court questioned Wade as to whether he was

making the admission voluntarily.     Wade admitted he had been convicted of

domestic abuse assault in 2008 and 2011. The court determined Wade was

guilty of domestic abuse assault, third or subsequent offense, in violation of Iowa

Code section 708.2A(4) (2016), a class “D” felony.

       The court denied Wade’s motions in arrest of judgment and for new trial.

Wade was sentenced to a term of imprisonment not to exceed five years. He

now appeals.

       II.     Hearsay

       In general, hearsay is not admissible. Iowa R. Evid. 5.802. “Hearsay” is

defined as “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Iowa R. Evid. 5.801(c). Hearsay may be admissible if it comes within one of the

exceptions to the hearsay rule.      Iowa R. Evid. 5.803. The proponent of the

evidence has the burden to show the statement fits within an exception. State v.

Long, 628 N.W.2d 440, 443 (Iowa 2001).            “We review hearsay rulings for

correction of errors at law and will reverse the admission of hearsay evidence as
                                         5

prejudicial unless the contrary is shown.” State v. Dudley, 856 N.W.2d 668, 675

(Iowa 2014).

      A.       Wade claims the district court erred by overruling his objections to

testimony by Batterson, the nurse practitioner, concerning statements C.B. made

to her. During the trial, Batterson testified, “She had a very spotty memory of

what had happened. I remember her being—telling me that she was scared.”

Wade objected and the court overruled his objection.

      While Batterson’s testimony that C.B. told Batterson she was scared is

hearsay, we find it comes within the exception for an “existing mental, emotional,

or physical condition,” found in rule 5.803(3). “The admission of such evidence

under this exception is dependent upon the relevancy of the declarant’s then

existing state of mind, emotion, sensation, or physical condition.”       State v.

Newell, 710 N.W.2d 6, 19 (Iowa 2006). The evidence C.B. was scared was

relevant to show she had been assaulted.

      B.       During Batterson’s testimony, the State offered C.B.’s medical chart

into evidence. The chart included the statement, “She was assaulted by her ex-

boyfriend last night.” Wade objected on the grounds of hearsay. The court

overruled the objection and admitted the exhibit.

      We by-pass the issue concerning whether the evidence was admissible

under the exception for “[s]tatements for purposes of medical diagnosis or

treatment,” under rule 5.803(4) because if the statement was improperly

admitted, it was not prejudicial. “In the hearsay context, ‘where substantially the

same evidence is in the record, erroneously admitted evidence will not be

considered prejudicial.’”   State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003)
                                         6

(quoting State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986)). Additionally, “no

prejudice will be found where the evidence in support of defendant’s guilt is

overwhelming.” Newell, 710 N.W.2d at 19.

      There was substantially the same evidence in the record from other

sources to show Wade assaulted C.B. C.B. testified during the trial Wade hit her.

Officer Schaaf testified he came into contact with C.B. soon after the incident and

she told him she had been assaulted by Wade. Additionally, C.B.’s statements to

Officer Schaaf were recorded on video. Fankhauser testified C.B. told her she

had been assaulted by Wade. Officer Girsch testified he had contact with C.B. at

the hospital and, as a result of their discussion, Wade was a suspect in the

assault. We conclude the record affirmatively establishes a lack of prejudice due

to the admission of the medical chart.

      C.     On appeal, Wade claims Batterson should not have been permitted

to testify that C.B. told Batterson she was assaulted by Wade.              During

Batterson’s testimony, Wade objected to only the two pieces of evidence

discussed above.    We conclude Wade failed to preserve error on any other

statements made by Batterson. In order to be considered on appeal, an issue

must be presented to and passed upon by the district court. State v. Jefferson,

574 N.W.2d 268, 278 (Iowa 1997).

      III.   Ineffective Assistance of Counsel

      Wade claims he received ineffective assistance from defense counsel.

We review claims of ineffective assistance of counsel de novo.        Ennenga v.

State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform
                                         7


an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

      A.     Wade claims he received ineffective assistance because defense

counsel did not move to dismiss the enhancement to Count I as the State did not

file any minutes of testimony to support the enhancement until after the jury

reached a verdict finding him guilty.    He states the filing of the minutes of

testimony relating to the enhancement was untimely under Iowa Rule of Criminal

Procedure 2.4(8).

      On December 10, 2015, the State filed the trial information, which charged

Wade in Count I with domestic abuse assault, third or subsequent offense, and

listed his previous convictions for domestic abuse assault. The attached minutes

of testimony did not include any witnesses who would testify about Wade’s prior

criminal records to support the enhancement of Count I as a third or subsequent

offense. Additional minutes were filed on February 18, 2016, again not referring

to the enhancement. The jury trial was held on March 1-3, 2016. On March 4,

2016, the State filed additional minutes of testimony, listing witnesses who would

testify to Wade’s prior criminal records. Wade appeared and admitted to the

previous convictions on March 7, 2016.

      Iowa Rule of Criminal Procedure 2.19(9) provides:

            After conviction of the primary or current offense, but prior to
      pronouncement of sentence, if the indictment or information alleges
      one or more prior convictions which by the Code subjects the
      offender to an increased sentence, the offender shall have the
      opportunity in open court to affirm or deny that the offender is the
                                           8


         person previously convicted, or that the offender was not
         represented by counsel and did not waive counsel. If the offender
         denies being the person previously convicted, sentence shall be
         postponed for such time as to permit a trial before a jury on the
         issue of the offender's identity with the person previously convicted.
         Other objections shall be heard and determined by the court, and
         these other objections shall be asserted prior to trial of the
         substantive offense in the manner presented in rule 2.11. On the
         issue of identity, the court may in its discretion reconvene the jury
         which heard the current offense or dismiss that jury and submit the
         issue to another jury to be later impaneled. If the offender is found
         by the jury to be the person previously convicted, or if the offender
         acknowledged being such person, the offender shall be sentenced
         as prescribed in the Code.

(Emphasis added.)

         Wade’s objections to the minutes of testimony should have been raised

prior to trial. See Iowa R. Crim. P. 2.19(9); State v. Long, 814 N.W.2d 572, 580

(Iowa 2012) (“[A] defendant who asserts the habitual offender statute is not

applicable must interpose his objections prior to the trial of the underlying charge.

If he does not do so, the objections are waived.” (citation omitted)). Even now,

Wade does not claim the issue should have been raised prior to trial but that

defense counsel should have objected to the amended minutes of testimony

when they were filed on March 4, 2016, which would be untimely under rule

2.19(9).    “Counsel, of course, does not provide ineffective assistance if the

underlying claim is meritless.” State v. Halverson, 857 N.W.2d 632, 635 (Iowa

2015).

         Furthermore, Wade was aware at the time the trial information was filed

on December 10, 2015; the State intended to show this was a third or

subsequent offense. He was additionally aware of the prior convictions the State

intended to rely upon to show the enhancement for a third or subsequent offense
                                          9


was applicable. When the State amended the minutes on March 4, 2016, Wade

could have sought a continuance in order to depose the witnesses about their

anticipated testimony. Instead, he decided to admit to the prior convictions. We

conclude he has not shown he was prejudiced by the actions of defense counsel.

       B.     Wade claims he received ineffective assistance because defense

counsel permitted him to admit to his previous convictions for domestic abuse

assault without an adequate colloquy with the district court. He states the district

court should have engaged in a colloquy similar to that required for a guilty plea

prior to accepting his admission to the previous convictions. Wade states he was

not sufficiently apprised of the rights he was giving up by admitting to the

previous convictions.

       In the past, we stated a rule 2.8(2)(b) colloquy was not required for a

defendant to stipulate to the fact of his prior convictions. State v. McBride, 625

N.W.2d 372, 374 (Iowa Ct. App. 2001). The district court held a colloquy with

Wade on March 7, 2016, concerning his admission to the previous convictions for

purposes of the enhancement of his offense to domestic abuse assault, third

offense. More than a year later, on April 7, 2017, our supreme court decided

State v. Harrington, ___ N.W.2d ___, ___, 2017 WL 1291343, at *5 (Iowa 2017),

which “now identif[ied] the specific areas that must be a part of a habitual

offender colloquy to support an admission [to prior convictions].” Harrington does

not state the new rules should be applied retroactively.3 The rules, which specify

how a court should conduct a habitual offender colloquy, appear to be procedural

3
   We note the dissent states the majority opinion “offers a reasonable way to approach
the habitual offender enhancement colloquy in the future.” Harrington, ___ N.W.2d at
___, 2017 WL 1291343, at *8 (Mansfield, J., dissenting).
                                         10


in nature, and we determine they should not be applied retroactively in this case.

See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (“New rules of procedure,

on the other hand, generally do not apply retroactively.”).

       Furthermore, we determine even if Harrington applied to a review of this

case, the district court substantially complied with the case’s requirements.

Before a defendant admits to prior convictions, a court must inform the defendant

concerning (1) the nature of the habitual offender charge; (2) the maximum

possible punishment, including the mandatory minimum punishment; (3) the trial

rights the defendant is waiving; (4) no trial will take place if defendant admits to

the convictions; and (5) a challenge to an admission must be raised in a motion

in arrest of judgment. Harrington, ___ N.W.2d at ___, 2017 WL 1291343, at *5-

6.   Here, the court’s colloquy included all of the requirements, except a

discussion of the mandatory minimum sentence. We have already noted the

court did not have the benefit of Harrington at the time of the colloquy.

       The district court engaged in a colloquy to determine whether Wade’s

admission to the previous convictions for domestic abuse assault was knowing

and voluntary. Wade has not shown he received ineffective assistance because

defense counsel did not object on the ground there should have been a fuller

colloquy, as now required by Harrington, ___ N.W.2d at ___, 2017 WL 1291343,

at *5-6.

       C.     In his claims regarding hearsay statements by Batterson, Wade

raised an alternative argument, claiming if error had not been preserved, this

was due to the ineffective assistance of counsel. We determined Wade did not

preserve error on his claim Batterson should not have been permitted to testify
                                        11


C.B. told Batterson she was assaulted by Wade, and we now address this issue

as a claim of ineffective assistance of counsel.

       During the trial, Batterson testified C.B. indicated she had been hanging

out with her ex-boyfriend, they had an argument, and after that her memories

were spotty. When specifically asked if C.B. reported she had been assaulted

by her ex-boyfriend, Batterson replied, “She didn't remember being hit at that

time. She remembered feeling fearful that she was scared of him, but she—she

couldn't recall the events. She had no memory other than kind of those spotty

places that she could report to me.” Batterson testified C.B.’s injuries were

consistent with an assault.

       We first note Batterson did not directly testify C.B. told Batterson she had

been assaulted by Wade. Even if Batterson had testified to this, however, the

testimony would have been cumulative to other evidence in the record showing

Wade assaulted C.B. Where substantially the same evidence is in the record,

the improper admission of hearsay evidence will not be considered prejudicial.

See Brown, 656 N.W.2d at 361. Wade has not shown he received ineffective

assistance due to defense counsel’s failure to object to Batterson’s testimony

on hearsay grounds.

       IV.    Court Costs

       Wade claims the district court improperly assessed him court costs for

Count II, which was dismissed. The State agrees the assessment of costs was

improper under sections 815.13 and 910.2. We determine the assessment of

court costs should be vacated and the matter remanded to the district court.
                                    12


       We affirm Wade’s conviction for domestic abuse assault, third or

subsequent offense. We vacate the assessment of court costs and remand on

this issue to the district court.

       CONVICTION AFFIRMED, SENTENCE VACATED IN PART AND

REMANDED.
