                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0212
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ASHLEY NICOLE WILTSE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland,

Judge.



      Ashely Nicole Wiltse appeals her conviction and sentence for wanton

neglect of a resident of a health care facility.      CONVICTION AFFIRMED,

SENTENCE VACATED, AND CASE REMANDED FOR RESENTINCING.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.




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

       Ashely Nicole Wiltse appeals her conviction and sentence for wanton

neglect of a resident of a health care facility. We find trial counsel was not

ineffective for failing to challenge the sufficiency of the evidence and error was

not preserved concerning the admission of a recorded interview. We do find the

district court abused its discretion in establishing conditions of Wiltse’s probation.

We affirm the district court in part, vacate the sentence and remand for

resentencing.

   I. Background Facts and Proceedings

       Wiltse worked as a certified nurse’s assistant (CNA) at Chautauqua Guest

Homes (Chautauqua), a health care facility in Charles City, Iowa.                 On

February 12, 2016, Wiltse sent a text message asking a former employee of

Chautauqua where she could get Xanax. The former employee did not respond.

       On February 16, Caleb Schadt was found unresponsive in his room.

Schadt was a resident of Chautauqua after receiving severe injuries in a car

accident, leaving him a quadriplegic. Schadt was moved from his chair to the

bed and could not be awakened. Wiltse’s shift ended, and she left with another

CNA. During the drive Wiltse told the other CNA she had given Schadt Xanax

and had taken some herself. Neither Schadt nor Wiltse had a prescription for

Xanax.

       Schadt eventually regained consciousness and admitted he had taken

Xanax but would not tell staff how it was obtained. The only guest Schadt had on

February 16 was Jamison Zirbel, a friend of Schadt and Wiltse’s former fiancé.

At trial Schadt testified Zirbel had given him the Xanax.
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      Wiltse pleaded not guilty on April 20. Trial was held on November 29 and

30. Wiltse filed a motion in limine seeking to exclude the use of a recording of an

interview, which she describes as an interrogation, by an investigator for the Iowa

Department of Inspections and Appeals. Wiltse also filed an amended motion in

limine on this issue. Both motions were denied. Wiltse was found guilty of

wanton neglect of a resident of a health care facility, in violation of Iowa Code

section 726.7(1) and (3) (2016). The district court sentenced Wiltse to one year

in jail with credit for time served and all but ten days suspended, two years of

probation, and a $625 fine with a thirty-five percent surcharge, and with all but

$100 suspended. The district court also entered a no-contact order, ordered

payment of sheriff’s fees and costs, and ordered payment of $150 in attorney

fees. Wiltse now appeals.

   II. Standard of Review

      Claims of ineffective assistance of counsel are reviewed de novo.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of

ineffective assistance of counsel, the [defendant] must demonstrate both

ineffective assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it

can be decided on that ground alone without deciding whether the attorney

performed deficiently.” Id. Both elements must be proved by a preponderance of

the evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).

      “When a defendant challenges the terms of probation, ‘[i]t has long been a

well-settled rule that trial courts have a broad discretion in probation matters

which will be interfered with only upon a finding of abuse of that discretion.’”

State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006) (citation omitted). “[O]ur task
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on appeal is not to second guess the decision made by the district court, but to

determine if it was unreasonable or based on untenable grounds.” Id. at 445.

       District courts’ evidentiary rulings are reviewed for abuse of discretion.

State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).

   III. Ineffective Assistance

       Wiltse first claims counsel was ineffective for failing to challenge the

sufficiency of the evidence. The jury instructions stated:

       [T]he state must prove both of the following elements of wanton
       neglect of a resident of a health care facility:
              1. On or about February 16, 2016, the defendant knowingly
       acted in a manner likely to cause injury to the physical or mental
       welfare of Caleb Schadt.
              AND
              2. Caleb Schadt was a resident of a health care facility.

Wiltse claims the evidence was not sufficient to prove injury was likely.

       At trial, testimony was presented that Xanax is a schedule IV narcotic.

Schedule IV narcotics are the second lowest tier of controlled substances and

have a lower potential for abuse, with some risk of physical or psychological

dependence. Iowa Code § 124.209. Wiltse claims this shows injury was not

likely, and therefore, the evidence was insufficient.

       However, testimony also showed the medical staff at Chautauqua “was

concerned for [Schadt’s] respiratory status because of his condition . . . . He’s

not able to breathe well, and taken that amount of Xanax would lower his

respirations even more.”      Additionally, in a text, Zirbel stated, “He wanted

[Xanax]! Don’t try [to] say this is [Wiltse’s] fault because he wanted those and he

knows he’s in no condition to be doing that.” When asked how much Xanax

Schadt had taken, in another text Wiltse responded, “I have no idea how
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much[.] . . . [H]e told me he thought he could handle as much as he did before[.]

I told him his body is different now he can’t be doing that[.]”

       We find the evidence was sufficient to find injury was likely to occur.

Giving unprescribed medications to a patient with complicated medical needs,

requiring around-the-clock care, on a significant amount of medication, can be

found to likely cause injury, especially when evidence indicates many people,

including the Wiltse, were aware of the risks. We find trial counsel was not

ineffective for failing to object to the sufficiency of the evidence, as such an

objection would have been meritless. See State v. Bearse, 748 N.W.2d 211, 215

(Iowa 2008).

   IV. Admission of Evidence

       Wiltse next claims the district court should not have allowed into evidence

a recording of an interview by the Iowa Department of Inspections and Appeals.

The State claims error was not preserved on this issue. “It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and

decided by the district court before we will decide them on appeal.” Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

       At trial Wiltse filed a motion in limine seeking to bar the use of the

recording because Wiltse was in custody and not informed of her constitutional

right to remain silent. Wiltse also asked statements made during the interview

“regarding what other witnesses have told [the investigator] should be excluded

as this would amount to hearsay and would not be covered by any exception.”

       Wiltse now claims the district court should not have allowed the recording

to be introduced because the probative value was minimally relevant and
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outweighed by the prejudice the recording could cause. Wiltse did not raise this

issue before the district court, and therefore, it was not preserved for our review.1

    V. Probation Conditions

       Wiltse finally claims the district court abused its discretion when

establishing the conditions of her probation. The conditions, in relevant part,

state, “[Defendant] shall abstain from the use of alcohol or other illegal drugs”

and “[Defendant] shall not frequent bars, taverns or other liquor stores.” The

State claims these restrictions were a proper exercise of the district court’s

authority.

       “[T]rial courts have a broad discretion in probation matters which will be

interfered with only upon a finding of abuse of that discretion.’”              Valin, 724

N.W.2d at 444 (citation omitted). Conditions of probation should be “reasonably

related to the crime of which defendant was convicted or to future criminality.”

State v. Lathrop, 781 N.W.2d 288, 291 (Iowa 2010).

       The State contends that prohibiting Wiltse from drinking alcohol and

frequenting bars, taverns, and other liquor stores is rationally related because

Wiltse was convicted of operating while intoxicated in 2012, there was evidence

regarding Wiltse’s drug use, and the crime involved the use of intoxicating

substances. The record contains no indication of problems with alcohol outside

of the conviction in 2012.

       An isolated incident, with no indication of a continuing pattern of offense,

is not a rational basis for imposing probation conditions. Similarly, while the


1
 Wiltse objected during the trial and filed a motion in limine to exclude the recording, but
neither motion sought to exclude the evidence based on Iowa Rule of Evidence 5.403.
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current offense does involve intoxicating substances, a prescription drug, it does

not automatically follow Wiltse has an issue with every intoxicating substance. If

such a conclusion could be made, many substances, including other

medications, would be equally suitable for prohibition. We are unconvinced by

the State’s arguments.

      While the prohibition of illegal drugs is proper and should remain, we find

prohibiting the consumption of alcohol and frequenting establishments primarily

serving alcohol is a condition that is not “reasonably related to the crime of which

defendant was convicted or to future criminality.” See Lathorp, 781 N.W.2d at

291. Therefore we vacate the sentencing order and remand to the district court

for resentencing in concurrence with this opinion.

      CONVICTION         AFFIRMED,     SENTENCE        VACATED,      AND     CASE

REMANDED FOR RESENTINCING.
