                    IN THE COURT OF APPEALS OF IOWA

                              No. 4-002 / 11-1958
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HUBERT TODD,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Dawn D.

Newcomb (trial), Judicial Magistrate, and Jeffrey L. Harris (appeal), District

Associate Judge.



       Hubert Todd appeals his convictions for domestic abuse assault and

criminal mischief in the third degree. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Michelle Wagner, Assistant

County Attorney, for appellee.



       Considered by Vogel, P.J., and Tabor and McDonald, JJ. Bower, J., takes

no part.
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VOGEL, P.J.

       Hubert Todd appeals his convictions for domestic abuse assault and

criminal mischief in the third degree. Todd asserts sufficient evidence does not

support either conviction.     He further argues trial counsel was ineffective for

failing to object to various testimony at trial and for failing to request a jury trial or,

alternatively, advise Todd of his right to demand a jury trial. Todd also claims his

due process rights were violated and that the district court did not have the

authority to require him to attend batterer’s education, and consequently, he was

given an illegal sentence. Although his wife recanted much of her initial story, we

conclude sufficient evidence supports Todd’s convictions, he cannot establish

counsel breached an essential duty with regard to two of his ineffective-

assistance claims, we preserve the third for possible postconviction relief

proceedings, and his due process rights were not violated.               We further find

requiring batterer’s education was mandatory, and thus Todd’s sentence was not

illegal. Therefore, we affirm the district court.

I. Factual and Procedural Background

       From the magistrate’s notes, the following facts could be found. In early

March 2010, Todd arrived at the residence of his estranged wife, Lola Todd

(Lola). He was agitated and claimed he wanted to fight a man who had chased

him to the house. Lola and Todd began to argue, Todd broke various pieces of

furniture, including a glass coffee table, a curio cabinet and a television, and he

pushed Lola, causing a red mark on her neck.               Lola called the police, and

Officers Spencer Gann and Eddie Savage arrived on the scene.
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       Lola and Todd’s adult daughter, Sharkarra Todd (Sharkarra), was also

present. She stated she saw Todd push Lola. At trial, the officers testified they

arrived and witnessed an argument in progress. They observed broken furniture

and that the television had fallen on Sharkarra’s foot. They testified as to Lola’s

on-the-scene statement that Todd had grabbed her by her throat and shoved her

and that they had observed a red puffy welt on the side of Lola’s neck.

       On March 5, 2010, Todd was charged with domestic abuse assault in

violation of Iowa Code section 708.2A.2(a) (2009), and criminal mischief in the

third degree, in violation of Iowa Code section 716.6, both simple misdemeanors.

A bench trial was held on September 2, 2010, and Todd was found guilty on both

counts. He was sentenced to seven days in jail with all but two days suspended,

and was ordered to attend a batterer’s education program.1 Todd appealed to

the district court, which upheld the magistrate’s decision. Todd then filed an

application for discretionary review, which the supreme court granted.

II. Sufficiency of the Evidence

       Todd first claims sufficient evidence does not exist to support either

conviction. We review challenges to the sufficiency of the evidence for correction

of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view the

record in the light most favorable to the non-moving party, here, the State, and

make all legitimate inferences and presumptions that may be reasonably

deduced from the evidence. Id. If substantial evidence supports the verdict, we




1
 Substantial delays followed Todd’s oral notice of appeal from the magistrate’s ruling,
none of which need be detailed to reach the issues in this current appeal.
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will affirm. Id. Evidence is substantial if it would convince a reasonable trier of

fact the defendant is guilty beyond a reasonable doubt. Id.

       To be convicted of domestic abuse assault, the State must prove Todd

acted with the intent “to cause pain or injury to, or . . . result in physical contact

which will be insulting or offensive to another, coupled with the apparent ability to

execute the act,” or that he intended to place another in fear of immediate

physical contact that is painful, injurious, insulting, or offensive.     Iowa Code

§ 708.1(1)–(2). Todd asserts that, because Lola testified she was not scared,

Todd used no force, the “welt” on her neck was from a surgical scar, and Todd

did not act intentionally, the evidence was insufficient to sustain his conviction.

However, while Lola recanted or minimized her initial story, she did testify Todd

pushed her with his hands, which was corroborated by Sharkarra’s testimony that

Todd pushed Lola. Officers Savage and Gann also testified that, at the scene,

Lola was upset and stated Todd grabbed her by her throat and shoved her. This

is sufficient evidence to affirm the conviction for domestic abuse assault.

       To be guilty of criminal mischief, Todd must have intentionally destroyed

or damaged property he had no right to damage. See Iowa Code §§ 716.1,

716.6. Todd relies on Lola’s testimony that Todd owned all the property he

damaged, and argues he could not be found guilty of this charge because the

property belonged to him. However, on cross examination Lola admitted she

owned the damaged table.        The magistrate found Lola’s statement that she

owned the table more credible than her previous statement. We defer to the

credibility determinations of the fact finder. See State v. Thornton, 498 N.W.2d

670, 673 (Iowa 1993). Furthermore, Sharkarra testified the cabinet belonged to
                                         5

both Todd and Lola, and Todd has no right to destroy marital property. See

State v. Zeien, 505 N.W.2d 498, 499 (Iowa 1993) (“[T]he [criminal mischief]

statute should apply to marital property as well as any other [property].”).

Therefore, taking into account the totality of the evidence as well as the

magistrate’s credibility determination, sufficient evidence exists to support the

conviction for criminal mischief, and we affirm.

III. Ineffective Assistance of Counsel

       Todd next asserts trial counsel was ineffective based on three grounds:

1) counsel failed to object to the officers’ testimony regarding Lola’s welts,

2) counsel failed to object to hearsay statements, and 3) counsel failed to

demand a jury trial.

       A defendant may raise an ineffective assistance claim on direct appeal if

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). We may either decide the record is adequate and issue a

ruling on the merits, or we may choose to preserve the claim for postconviction

proceedings. Id. We review ineffective assistance of counsel claims de novo.

Id.   To succeed on this claim, the defendant must show, first, that counsel

breached an essential duty, and, second, that he was prejudiced by counsel’s

failure. Id.

       A. Officers’ Testimony

       Todd argues the testimony of the officers regarding the welt they observed

on Lola’s neck was improper because they were not qualified to distinguish a

welt from a surgical scar.   Consequently, trial counsel was ineffective for failing

to object to the statements. However, lay opinion testimony is allowed when the
                                         6


opinion is rationally based on the witness’s perception and is helpful to

understand the witness’s testimony or determine a fact in issue. Iowa R. Evid.

5.701; see also State v. Glaus, 455 N.W.2d 274, 276 (Iowa Ct. App. 1990) (“[A]

lay or non-expert opinion is received because and whenever the facts cannot be

told so as to give the court or jury the information which the witness’s observation

has given to him.”).

         Officer Gann testified he observed a red welt on Lola’s neck without an

incision or scratch, and that it could not have been from an operation. Officer

Savage testified Lola had a red puffy welt on the side of her neck that was fresh

and was not an incision, from a scratch or open sore, and there was no mention

at the time of surgery on her neck. This testimony is rationally based on the

officers’ perception of the welt, and is therefore proper lay opinion testimony.

Consequently, trial counsel did not breach an essential duty by not objecting to

this testimony, and Todd’s claim is without merit.

         B. Hearsay

         Todd further asserts trial counsel was ineffective because he failed to

object to the officers’ testimony regarding Lola and Sharkarra’s statements at the

scene.     However, trial counsel breached no essential duty by not objecting

because these statements met the excited utterance exception to the hearsay

rule. See Iowa R. Evid. 5.803(2). This exception exists when the statement

relates “to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” Id. The officers arrived

during the fracas where they observed “yelling and shouting” and the fact that

“Lola was angry and out of breath.” This indicates the statements were reliable
                                         7


because they were made under the stress and excitement of the event rather

than upon reflection or deliberation, and therefore admissible.      See State v.

Atwood, 602 N.W.2d 775, 782 (Iowa 1999). Consequently, Todd’s ineffective-

assistance claim is without merit.

       Todd next argues that his Confrontation Clause rights were violated, and

thus trial counsel was ineffective in failing to object to these same statements.

However, as demonstrated by the record, Todd had ample opportunity during

trial to question Lola and Sharkarra regarding their statements and perceptions of

the events. Therefore, no Confrontation Clause violation occurred, and Todd’s

claim fails.

       C. Jury Trial

       Todd also asserts trial counsel was ineffective because counsel did not

advise him of his right to demand a jury trial, nor did counsel demand a jury trial

despite Todd stating he wished to exercise this right.         Regardless of the

contradictory position inherent in Todd’s claim, there is an insufficient record to

decide this issue.      Therefore, we preserve Todd’s claim for possible

postconviction relief proceedings.

IV. Due Process

       Todd next argues his due process rights were violated because he was

not informed of his right to a jury trial, he was denied a meaningful appeal to the

district court, and his statement of evidence under Iowa Rule of Appellate

Procedure 6.807 was not addressed on appeal by the district court. The State

responds that Todd failed to preserve error on this claim.
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       “The doctrine of error preservation has two components—a substantive

component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011) (holding a one-page resistance that stated there was no legal

basis for the State’s actions did not properly preserve error with respect to the

defendant’s constitutional claims). To preserve error on appeal, the party must

first state the objection in a timely manner, that is, at a time when corrective

action can be taken, in addition to the basis for the objection. Id. at 524. The

court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012). “If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532,

540 (Iowa 2002)).

       Todd’s arguments regarding due process were never raised before either

the magistrate judge or the district court judge. Therefore, this claim was not

considered by the lower court, and it is not preserved. Consequently, we decline

to address the merits of Todd’s arguments.

V. Batterer’s Education

       Todd’s final argument asserts that, because he was placed on “self-

probation” rather than “formal” probation, the batterer’s education program could

not be ordered, and thereby constitutes an illegal sentence. However, pursuant

to Iowa Code section 708.2B, because Todd was convicted of domestic abuse

assault under Iowa Code section 708.2A, he must “report to the district

department in order to participate in a batterers’ treatment program for domestic

abuse offenders.”     Given this statutory mandate, Todd’s sentence, which
                                       9


included the batterer’s education program, was not illegal. Therefore, we affirm

his sentence.

      AFFIRMED.
