                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1179
                             Filed January 9, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC JOHN HELLMAN,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Guthrie County, Terry Rickers,

Judge.



      Eric Hellman appeals his conviction and sentence for assault causing bodily

injury. CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K.

Reddy, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
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MAY, Judge.

       A jury found Eric Hellman guilty of assault causing bodily injury. On appeal,

he argues: (1) his trial counsel was ineffective, (2) the district court applied the

wrong standard when deciding his motion for new trial, (3) the district court

imposed court costs without making the required finding of his reasonable ability

to pay, and (4) the district court’s no-contact order improperly classified his mother

as an “intimate partner” and, as a result, improperly imposed a firearms prohibition.

We conditionally affirm and remand with instructions.

I.     Facts and Prior Proceedings

       On Saturday, June 17, 2017, Hellman went to his parents’ home. He

wanted his mother, Cherie Hellman, to help fix his cellphone.                   While

communicating with the phone company, Hellman became increasingly agitated.

       According to Cherie, she tried to sneak out of the house when Hellman

became enraged. Hellman prevented her exit by “body checking” her into the door.

J.H., Hellman’s daughter, fled the house. Hellman held Cherie against the door

and hit her in the mouth. She was unable to call 911 because, at some point,

Hellman had confiscated her cellphone. Eventually, Hellman released her and she

fled toward her car.

       At about the same time, Cherie’s husband arrived at the home. J.H. ran to

him. Meanwhile, Hellman threw Cherie’s phone into her car and shoved her inside.

She escaped alone in her car. Once on the road, she called 911 and asked for

assistance to be sent to her husband and J.H.

       She then headed to the police station. She was told to come back Monday

to file a report. So Cherie, her husband, and J.H. left town for the weekend.
                                         3


       On Monday, they returned to file a police report. Deputy Sheriff Jesse

Swensen took photographs of Cherie’s bruising and injuries. At trial, Deputy

Sheriff Swensen opined that the injuries were consistent with Cherie’s account of

the assault.

       When law enforcement interviewed Hellman, he relayed a different account

of events. He told Deputy Kent Gries that he and Cherie got into an argument

about landscaping at his home. During the argument, Cherie hit Hellman nine

times in the face with her cane. But Deputy Gries testified he saw no visible

injuries. And Hellman did not want to pursue any charges against Cherie.

       The State charged Hellman with assault causing bodily injury in violation of

Iowa Code section 708.1(2) (2017). A jury found Hellman guilty as charged. The

district court imposed a suspended sentence and entered a no-contact order.

Hellman appeals.

II.    Ineffective-Assistance-of-Counsel Claims

       Hellman raises many ineffective-assistance claims.1         He first argues

counsel was ineffective for failing to object to various out-of-court statements made

by three different individuals. He next argues counsel was ineffective for failing to

ask the court to admonish the jury to disregard inadmissible bad-act evidence. And



1 We recognize Iowa Code section 814.7 was recently amended to provide in
pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. In State v. Macke, however, our supreme court held the amendment
“appl[ies] only prospectively and do[es] not apply to cases pending on July 1,
2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s
holding. We conclude, therefore, the amendment “do[es] not apply” to this case,
which was pending on July 1, 2019. Id.
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he claims counsel was ineffective for failing to object to a jury instruction

concerning his out-of-court statements.          Finally, Hellman asks this court to

consider the cumulative effect of counsel’s errors. State v. Clay, 824 N.W.2d 488,

500 (Iowa 2012) (“Under Iowa law, we should look to the cumulative effect of

counsel’s errors to determine whether the defendant satisfied the prejudice prong

of the [ineffective-assistance] test.”).

       Our review of ineffective-assistance claims is de novo. State v. Albright,

925 N.W.2d 144, 151 (Iowa 2019).               “Because ‘[i]mprovident trial strategy,

miscalculated tactics, and mistakes in judgment do not necessarily amount to

ineffective assistance of counsel,’ . . . postconviction proceedings are often

necessary to discern the difference between improvident trial strategy and

ineffective assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006)

(citation omitted); see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a

lawyer is entitled to his [or her] day in court, especially when his [or her]

professional reputation is impugned.”).

       We find the record is sufficient to address Hellman’s claim regarding the

jury instructions. Hellman contends trial counsel should have objected to an

instruction that the jury could “consider” Hellman’s out-of-court statements “as part

of the evidence, just as if they had been made at this trial.” But “[t]his court has

repeatedly rejected the same challenge to the same instruction.”             State v.

Lustgraaf, No. 18-0167, 2019 WL 1055838, at *1 (Iowa Ct. App. Mar. 6, 2019)

(collecting cases); accord State v. Chrzan, No.18-1327, 2019 WL 5067174, at *3
                                          5


(Iowa Ct. App. Oct. 9, 2019) (collecting cases).2 Likewise, we reject Hellman’s jury

instruction claim.

       As for Hellman’s other claims of ineffective counsel, however, we find the

record is insufficient for our review.        So we preserve them for a future

postconviction proceeding.

III.   Weight-of-the-Evidence Standard

       Next Hellman contends the district court applied the incorrect standard

when denying his motion for new trial. He claims the district court deferred to the

jury’s credibility findings rather than making the credibility determination required

under State v. Ellis, 578 N.W.2d 655 (Iowa 1998).

       “Trial courts have wide discretion in deciding motions for new trial.” Ellis,

578 N.W.2d at 659. But where, as here, a party claims the district court failed to

apply the proper standard, our review is for correction of errors at law. State v.

Wells, 738 N.W.2d 214, 218 (Iowa 2007); see also Iowa R. App. P. 6.907.

       “Iowa Rule of Criminal Procedure 2.24(2)(b)(6) permits a district court to

grant a motion for new trial when a verdict is contrary to the weight of the evidence.”

State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “The weight-of-the-evidence

standard requires the district court to consider whether more ‘credible evidence’

supports the verdict rendered than supports the alternative verdict.” Id. This

standard differs from the sufficiency-of-the-evidence because it “requires the


2Although, to be clear, our decisions have not always been unanimous. See State
v. Wilson, No. 18-0536, 2019 WL 6894231, at *5, (Iowa Ct. App. Dec. 18, 2019)
(Tabor, J., concurring specially); State v. Payne, No. 17-0111, 2018 WL 1182624,
at *11–12 (Iowa Ct. App. Aug. 15, 2018) (Tabor, J., dissenting); State v. Yenger,
No. 17-0592, 2018 WL 3060251, at *6–7 (Iowa Ct. App. June 20, 2018) (Tabor, J.,
dissenting).
                                          6


district court to independently ‘weigh the evidence and consider the credibility of

witnesses.’” State v. Walden, No. 18-0209, 2019 WL 6358300, at *9 (Iowa Ct.

App. Nov. 27, 2019) (quoting Ellis, 578 N.W.2d at 658). The district court must

become “an independent trier of fact.” State v. Fister, No. 15-1542, 2016 WL

6636688, at *6 (Iowa Ct. App. Nov. 9, 2016). And “[t]he district court errs by failing

to ‘engage in any independent evaluation of the evidence or make any credibility

determinations of the witnesses.’” Id. (citations omitted).

       When ruling on Hellman’s motion for new trial, the district court stated,

       The court determines that there was sufficient evidence and that the
       weight of the evidence presented by the State during the trial
       sustains the guilty verdict rendered by the jury as indicated when the
       jury was instructed. The jury has the option of believing all, some or
       none of the testimony presented by a particular witness.
              It is clear to the court that the jury found the complaining
       witness’s testimony to be credible and compelling. And operating
       under the assumption that the jury found the complaining witness’s
       testimony to be credible, there is sufficient evidence to find beyond a
       reasonable doubt that assault occurred in this case that there was
       unjustified, unwanted physical contact between the defendant and
       the complaining witness, the defendant’s mother.               And the
       defendant’s mother testified that she suffered pain as a result of the
       physical contact initiated by the defendant, which is sufficient to
       sustain a verdict for assault causing bodily injury. So bottom line is,
       the weight of the evidence does sustain the jury’s verdict in this case,
       and the motion for new trial will be denied.

(Emphasis added.)

       This record suggests the district court deferred to the jury’s presumed

findings regarding credibility. It does not show the court made “independent”

credibility findings. See Walden, 2019 WL 6358300, at *9. So we “vacate the

district court’s ruling on the defendant’s motion for new trial and remand the case

‘for the purpose of allowing the district court to rule on [Hellman’s] motion applying

the correct weight-of-the-evidence standard.’” Fister, 2016 WL 6636688, at *6
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(quoting State v. Curtis, No. 04-1878, 2005 WL 1398337, at *2 (Iowa Ct. App. June

15, 2005)).

IV.    Reasonable-Ability-to-Pay Determination

       Hellman also argues the district court improperly ordered him to pay court

costs without making a reasonable-ability-to-pay determination. We agree. Iowa

Code section 910.2(1)(a)(3) provides that the district court may only order

restitution for costs after finding the defendant has a reasonable ability to pay. See

State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019). At sentencing, the district

court found Hellman was “ha[d] no reasonable ability to repay the costs of court

appointed counsel fees” but made no finding on court costs. See Iowa Code

§ 910.2(1)(a)(4). So we vacate the restitution portion of the sentencing order.

V.     No-Contact Order

       Finally, we address the no-contact order entered as part of Hellman’s

sentencing. Hellman concedes the district court had authority to enter a no-contact

order under Iowa Code section 664.5. But the order included a specific finding

that Hellman and his mother met the definition of intimate partners under 18 U.S.C.

§ 921(a)(32). Hellman claims this finding is incorrect. And because the intimate

partner definition is not satisfied, Hellman contends, the no-contact order should

not have prohibited him from possessing firearms. The State concedes on the

intimate partner issue and asks this court to vacate that portion of the no-contact

order. Even so, the State notes, “[a]ccording to the trial record,” Hellman “is a felon

and subject to section 724.26’s prohibition on weapon possession.”

       We review sentencing challenges for corrections of errors at law. State v.

Freeman, 705 N.W.2d 286, 287 (Iowa 2005). “The court’s authority to impose
                                         8


sentence is created by statute, and any sentence not authorized by statute is illegal

and void.” State v. Grover, No. 14-0072, 2014 WL 7343514, at *1 (Iowa Ct. App.

Dec. 24, 2014). This applies equally to a no-contact order entered as part of

sentencing. State v. Hall, 740 N.W.2d 200, 202 (Iowa Ct. App. 2007).

       We begin with the intimate partner issue. Under 18 U.S.C. § 921(a)(32), an

“intimate partner” of a person refers to “the spouse of the person, a former spouse

of the person, an individual who is a parent of a child of the person, and an

individual who cohabitates or has cohabited with the person.” We accept the

parties’ agreement that Hellman and Cherie are not in any of these relationships.

So we agree with the parties that “intimate partner” portion of the no-contact order

must be vacated.

       We turn next to the firearms issue. “Chapter 664A, standing alone, does

not authorize the firearms prohibition.” Grover, 2014 WL 7343514, at *5. Without

the intimate-partner finding, we see no basis for an order concerning firearms.

Even assuming Hellman is a felon subject to the statutory prohibitions of Iowa

Code section 724.26 (and we express no opinion as to whether he is), it is not

clear that this alone would justify a no-contact order—the violation of which could

carry its own independent penalties—limiting Hellman’s right to possess arms.

The State cites no authority to show it would. So we find the firearms prohibition

must be vacated.

VI.    Conclusion

       We vacate the district court’s ruling on the motion for a new trial and remand

for application of the correct weight-of-the-evidence standard. We offer no opinion

as to whether the motion should be granted or denied.
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       If the district court grants the motion, Hellman’s judgment and sentence

should be vacated, and a new trial should be granted. If, on the other hand, the

district court denies the motion, then the judgment and sentence will stand affirmed

except (1) we vacate the restitution portion of the sentencing order and (2) we

vacate the “intimate partner” finding and the firearms prohibition on the no-contact

order. So if the district court denies the motion for new trial, the court should (1)

make a reasonable-ability-to-pay determination and enter a corrected sentencing

order and (2) enter a corrected no-contact order.

       CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS.
