                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0893
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN EARL LEBS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      Brian Lebs appeals his convictions after a jury found him guilty of second-

degree arson and insurance fraud. AFFIRMED.



      Mark C. Smith, State Appellate Defender, Martha J. Lucey, Assistant

Appellate Defender, and Angela J. O’Kane, Legal Intern, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Heather Ann

Mapes, Assistant Attorneys General, Michael J. Walton, County Attorney, and

Kimberly Shephard, Assistant County Attorney, for appellee.



      Considered by Bower, P.J., and McDonald, J., and Scott, S.J.*
                                         2



BOWER, Presiding Judge.

       Brian Lebs appeals his convictions after a jury found him guilty of second-

degree arson, in violation of Iowa Code section 712.3 (2013), and insurance

fraud, in violation of section 507E.3. He claims there was insufficient evidence to

support his conviction, the district court abused its discretion in allowing certain

witnesses to testify, and his trial counsel was ineffective. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS

       At approximately 9:35 a.m. on November 17, 2012, the Davenport Fire

Department responded to a fire at Lebs’s house. Upon entering the home, the

firefighters discovered the fire was in the basement. The firefighters extinguished

the fire but not before the interior of the home was damaged. At the time of the

fire, Lebs owed $1600 in past due payments on the house, which he had

purchased on contract. On November 2, the holder of Lebs’s home contract had

sent him a letter setting a deadline of November 16 to remedy the deficit.

       In the days prior to the fire, Lebs and his wife, Sandra, had noticed the

smell of natural gas in their home. Lebs called MidAmerican Energy to have a

technician investigate the potential gas leak. A technician visited the home on

November 14 and determined the pipe connected to the hot water heater was

leaking gas.   The technician only discovered the leak through the use of a

detector and did not report smelling gas. The technician turned off the gas to the

hot water heater and placed a “Hazardous Notice Tag” on the heater to indicate

there was a gas leak and it was in need of service. The technician also capped a

valve leading to the clothes dryer, which was also leaking. Lebs had previously
                                          3



disconnected the dryer from the gas line.       Further inspection of the pipes

revealed no other leaks. The technician informed Lebs the hot water heater

should not be used until the leak was fixed.

      On November 16, around 4:00 p.m., Lebs noticed a “huge aroma of gas.”

Lebs again called MidAmerican.         A different technician investigated and

determined the furnace was leaking gas. The furnace cover was off, which the

technician thought seemed odd.        The technician turned off the gas to the

furnace. The technician told Lebs to open the windows to vent the gas from the

house and not to use the stove to heat the house.

      That night, the Lebs’s five children stayed at Sandra’s parent’s house.

Lebs and Sandra spent the night at home. The next morning (the day of the fire)

the couple left the house between 7:45 a.m. and 8:45 a.m. They left the house in

separate vehicles; Lebs left after Sandra. Later that morning, a neighbor noticed

smoke emitting from the Lebses’ home and called the fire department.

      Immediately after the fire was suppressed, fire cause specialist Michael

Ryan investigated and determined the origin of the fire was the basement. He

ruled out electricity as the cause of the fire. He also noted none of the basement

appliances were the cause of the fire. Unable to determine how the fire started,

Ryan called firefighter Kurt Blackburn, a fire “origin and cause specialist” and

Lieutenant James Morris to investigate.

      Blackburn surveyed the exterior of the house and found “smoke staining”

around the gas meter where smoke had been “pushing out from around the

actual gas meter.” Upon entering the house, he noticed the damage caused to
                                         4



the first floor was minimal.   He then went to the basement and observed a

cabinet “that was completely consumed by fire.” He scrutinized the electrical

outlets near the cabinet and concluded they were not the cause of the fire.

Ultimately Blackburn was unable to conclude “the actual ignition source, in terms

of what started the fire, as well as knowing the fuel, in terms of how the fuel and

the ignition source came together,” he ruled that as “undetermined.” He noted:

       Each fire actually tells a story.
              ....
              This fire story told me that there was no ignition sources in
       that area, that I can tell. There was no initial fuel that would have
       started, and because I can’t put those two together, I had to rule the
       fire as undetermined. But at the same time there is a strong
       possibility that this could be an intentionally set fire.
              ....
              Because I couldn’t determine that the fire—how it started
       and what the initial fuels were, I had to rule it as undetermined, but
       there was items that were suspicious of it. There was—made it
       suspicious. One was that during our investigation, our dual
       investigation, Lieutenant Morris found a stove upstairs with two of
       the burners in the high position, as well as the oven itself turned to
       325.

       Morris arrived at the house approximately one hour after the fire. After

being unable to determine the “source of ignition” of the fire, Morris looked at the

other possible causes. Morris traced the gas lines to determine whether any

appliances were turned on. He discovered the kitchen stove (on the first floor of

the house) had two burners turned on and set to high, the oven was also turned

on. Morris noticed two pots with plastic and rubber combustible handles were

inside the oven.

       After Morris concluded his investigation of the home, Morris conducted an

interview with Lebs. Lebs told him the basement was the children’s playroom
                                         5



area—though Morris did not observe any toys in the basement.                     Lebs

(inaccurately) stated he was only one month behind on house payments, though

he had been working with the mortgage holder, Little River Investments, to catch

up on his payments. Lebs denied using the stove the night before or the day of

the fire. Lebs also stated he had been unemployed for about two weeks, but he

had obtained employment in North Dakota and was planning on leaving Iowa the

day of the fire for the employment.      After months of additional investigation,

Morris concluded the fire had been intentionally set. He stated:

              The fire was set while—in the basement, which in my
      training and experience in set fires, it takes a lot more time to detect
      a fire that’s down below grade, down below level there. The fact
      that there is no ignition source in the area. There should be some
      explanation. There was no electrical, there was no gas in that area.
      All the appliances were isolated and shut off by MidAmerican prior
      to this fire, except for the gas stove. And then also finding the gas
      stove in the on position, with two burners and the oven, no pots to
      speak of around that area, is what led us to believe that.
              ....
              [The ignition source] went in his pocket with him or was
      destroyed.

      MetLife Insurance Company provided the homeowner’s insurance for

Lebs’s house. Lebs initially received a $3000 debit card to help cover immediate

expenses from the fire. Lebs also received $975 for rent and $1258 for cleanup

costs. Martin Sigsworth investigated the fire for MetLife. Sigsworth noted the

value of the insurance “policy was worth significantly more than the value of the

home.” The Lebses’ policy listed $268,000 for dwelling coverage, $187,740 for

personal property, and $67,000 for loss-of-use insurance. Lebs had contracted

with Little River to purchase the home for $78,000 and put $5000 as down

payment. The home’s value was estimated at $100,000. As the holder of the
                                         6



insurance policy, Lebs would have been the first person to receive payment for

damage done to the house.

       Sigsworth interviewed Lebs on December 2. Sigsworth asked him general

questions   about    his   background,       employment   history,   and   financial

circumstances. While discussing Lebs’s employment, Lebs noted he had been

hired in North Dakota but had not obtained the position until a couple weeks after

the fire (which conflicts with what Lebs told Morris).     With regards to Lebs’s

previous residences, Lebs noted he had a mortgage on a house located in

Missouri.   Even though Lebs and his wife were ahead on their mortgage

payments and they likely had equity in the house, they inexplicably walked away

from the home without trying to sell. The couple put “quite a bit of money into it,”

but the documentation from the work done to the Missouri house was destroyed

in the house fire.   Based on his full investigation, Sigsworth denied Lebs’s

insurance claim.

       On April 4, 2013, the State charged Lebs with second-degree arson and

insurance fraud. A jury trial was held on March 31 through April 2. The jury

returned a verdict of guilty on both counts. A sentencing hearing was held on

May 31, 2014. Lebs was sentenced to a period of incarceration not to exceed

ten years for the arson charge, and a period of incarceration not to exceed five

years for insurance fraud. The court ordered the sentences to run concurrently.

Lebs’s request for probation was denied due to his criminal history and the

number of people he put in harm’s way. Lebs now appeals.
                                        7



II.    STANDARD OF REVIEW

       We review sufficiency-of-the-evidence claims for a correction of errors at

law. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). In deciding whether

the evidence is sufficient to support a guilty verdict, we consider the record

evidence in the light most favorable to the State, including all reasonable

inferences that may be fairly drawn from that evidence. State v. Showens, 845

N.W.2d 436, 439–40 (Iowa 2014). If substantial evidence supports the verdict,

we will uphold it. Id. at 440.

       We review the admission of objected to testimony for an abuse of

discretion. See State v. Brown, 856 N.W.2d 685, 688 (Iowa 2014). The district

court abuses its discretion when it exercises its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable. Id. “A ground or

reason is untenable when it is not supported by substantial evidence or when it is

based on an erroneous application of the law.” Id.

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

he has reasonable grounds to believe the record is adequate for us to address

the claim. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If we determine the

record is adequate, we may decide the claim. Id. We review claims of ineffective

assistance of counsel de novo. Id. This is our standard because such claims

have their basis in the Sixth Amendment to the United States Constitution. State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).
                                           8



III.   DISCUSSION

       A.        Sufficiency of the Evidence

       Lebs claims there is not sufficient evidence to prove he knowingly caused

the fire that damaged his home and knowingly submitted false information to his

insurance company with the intent to defraud.

       The jury was instructed in order to find Lebs guilty of second-degree arson

the State had to prove the following elements: “1. On or about the 17th day of

November 2012, the Defendant caused a fire in or near property.           2. The

Defendant intended to destroy or damage the property or knew the property

would probably be destroyed or damaged. 3. The property was a building.” The

jury received the following instruction defining “intent”:

       To commit a crime a person must intend to do an act which is
       against the law. While it is not necessary that a person knows the
       act is against the law, it is necessary that the person was aware
       they were doing the act, and they did it voluntarily, not by mistake
       or accident. You may, but are not required to, conclude a person
       intends the natural results of their acts.

       Substantial evidence shows the fire was intentionally set.              Fire

investigators Blackburn and Morris reached the same conclusion.               While

Blackburn initially ruled the cause of the fire “undetermined,” he later explained

this was because he could not locate the actual ignition source or determine the

fuel. He concluded there was a strong possibility that this could have been an

intentional fire.     Morris ruled the fire was “incendiary” after additional

investigation.

       Additionally, the evidence establishes Lebs was responsible for the fire

this includes: the fact Lebs and his wife stayed at their home the night preceding
                                         9



the fire and he was the last to leave the home, the conflicting reasons why he

and his wife drove two cars that morning, Lebs’s characterization of the

basement as the children’s play area even though no toys where found there, the

fact the furnace cover had been removed while Lebs told the insurance company

it had not been taken apart, Lebs’s troubling financial situation and his

misstatement of the status of his house payments, Lebs’s misstatement of his

employment status, Lebs’s past issues with housing, and the substantial amount

of insurance money Lebs would have received for the fire damaged home.

       Reviewing the evidence in the light most favorable to the State, we find

substantial evidence supports the verdict Lebs caused the fire in his home.

Accordingly, sufficient evidence supports both his arson and insurance fraud

convictions.

       B.      Objection to Morris Testimony

       Lebs claims the district court abused its discretion by allowing expert

witness Morris to testify regarding his opinion about the cause of the fire and thus

admitted inadmissible expert testimony that spoke to Lebs’s guilt or innocence.

The State claims Lebs has failed to preserve error on this claim.

       The following exchange occurred with regards to Morris’s testimony:

               Q: Based on your entire investigation, all the things that we
       have heard that you did—visited the scene, interviewed witnesses,
       interviewed the Defendant, examined the stove, obtained financial
       documents—did you form an opinion about the cause of the fire?
       A: I did.
               Q: What is your opinion?
               Defense Counsel: I’ll object to that question, your honor. It
       calls for the ultimate conclusion that should be left up to the jury.
               The Court: That objection is overruled.
                                        10



             Q: What is your opinion? A: That this fire was intentionally
      set.
              Q: Tell us how that could have happened. A: The fire was
      set while—in the basement, which in my training and experience in
      set fires, it takes a lot more time to detect a fire that’s down below
      grade, down below level there. The fact that there is no ignition
      source in the area. There should be some explanation. There was
      no electrical, there was no gas in that area. All the appliances were
      isolated and shut off by MidAmerican prior to this fire, except for the
      gas stove. And then also finding the gas stove in the on position,
      with two burners and the oven, no pots to speak of around that
      area, is what led us to believe that.
              Q: Where did the ignition source go? A: Went in his pocket
      with him or was destroyed.

      Iowa Rule of Civil Procedure 5.704 provides that expert “[t]estimony in the

form of an opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact.”

However, “a witness cannot opine on a legal conclusion or whether the facts of

the case meet a given legal standard. Such an opinion would be of no value to

the jury. In most cases, the jurors are fully capable of applying the facts of the

case to the law. . . .” In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 2005).

      “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.” Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (citing Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).           We find defense counsel’s

objection was insufficient to preserve error for this claim on appeal. Defense

counsel’s objection was properly overruled since Iowa Rule of Civil Procedure

5.704 allows an expert to opine about an ultimate issue. To preserve error for

this appeal, defense counsel should have stated the prosecution’s “question

called for a legal conclusion, for an opinion that was not the proper subject of
                                         11



expert testimony . . . or for an opinion whose probative value would be

substantially outweighed by the danger of misleading the jury.” Palmer, 691

N.W.2d at 422.     Defense counsel “was required to identify the specific legal

terms that rendered the question objectionable.” Id.

       Even if error had been preserved, the result would have been the same.

Morris’s testimony the ignition source “[w]ent in his pocket with him or was

destroyed” went beyond permissible expert testimony on the cause and origin of

the fire and constituted an impermissible opinion regarding the defendant’s guilt.

See State v. Myers, 382 N.W.2d 91, 94 (Iowa 1986) (“Both matters, credibility of

a witness and the determination of the guilt or innocence of the accused, are

reserved solely for the fact finder.”). Morris specifically offered his opinion it was

“him,” the defendant, who was the arsonist. That was a question for the jury.

See Juilian v. State, 811 N.E.2d 392, 400 (Ind. Ct. App. 2004) (holding

investigator could provide opinion fire was intentionally set but not provide

opinion it was the defendant who set the fire); State v. Campbell, Nos. C-010567

& C-010596, 2002 WL 398029, at *6 (Ohio Ct. App. Mar. 15, 2002) (holding it

was improper for fire investigator to identify the defendant as starting fire as an

impermissible opinion on guilt). However, the error was harmless in light of the

remainder of the evidence.      See Iowa R. Evid. 5.103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial

right of the party is affected.”); State v. Parker, 747 N.W.2d 196, 210 (Iowa 2008)

(holding error harmless based on “overwhelming evidence of guilt”).
                                        12



      C.       Ineffective Assistance

      Lebs claims his trial counsel provided him with ineffective assistance by

failing to object to the interview transcript between Lebs and the insurance

investigator, and by failing to object to the insurance investigator’s testimony.

Upon our review of the record, we find it inadequate to address Lebs’s

ineffective-assistance-of-counsel claims on direct appeal and preserve these

claims for potential postconviction-relief proceedings. See Straw, 709 N.W. 2d at

133; see also State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is

entitled to his day in court, especially when his professional reputation is

impugned.”).

IV.   CONCLUSION

      Substantial evidence supports the jury’s verdict finding Lebs guilty of

arson and insurance fraud. We find Lebs failed to preserve error on his claim

concerning Morris’s expert testimony, and if error was preserved, Morris’s

testimony, while inadmissible, was harmless error. Finally, we preserve Lebs’s

ineffective-assistance claim for postconviction-relief proceedings to allow for

further development of the record.

      AFFIRMED.
