                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1842
                             Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMODD SALLIS,
     Defendant-Appellant.
________________________________________________________________


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

Odekirk, Judge.



      Jamodd Sallis appeals from his convictions and sentences for possession

of a firearm by a felon, being a habitual offender, and carrying weapons.

CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION VACATED;

REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Tabor, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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TABOR, Judge.

       Jamodd Sallis appeals his convictions and sentence following jury verdicts

finding him guilty of possession of a firearm by a felon while being a habitual

offender and carrying weapons.        He argues the State presented insufficient

evidence to prove he possessed a firearm. He also contends the district court

applied the wrong standard in ruling on his motion for new trial. Lastly, Sallis

challenges the district court’s determination of his reasonable ability to pay

restitution.

       We find substantial evidence supported the verdicts. But the district court

did not apply the weight-of-the-evidence standard in ruling on the new-trial motion.

Accordingly, we affirm the verdicts but reverse the ruling on the new-trial motion

and remand with directions. We also remand on the restitution issue because the

district court abused its discretion in deciding Sallis had the ability to pay without

knowing the total amount of restitution owed.

I. Facts and Prior Proceedings.

       Jennie Hansel and her mother, Cathy Pingel,1 met Sallis when he loaded

items into their car at a home-improvement store. Sallis also helped them unload

the car at Hansel’s home later that day. Sallis gave his phone number to Hansel

in case she needed assistance in the future.

       Around the same time, Cathy was serving as the executor of her friend’s

estate. The beneficiary of the estate was the friend’s minor son. After an auction,

the estate would place the proceeds in a trust for the beneficiary. Due to tension



1
  We sometimes refer to Cathy and James Thomas “Tom” Pingel by their first names for
clarity’s sake.
                                          3


between Cathy and the beneficiary, Cathy decided to hire security for the auction.

Cathy hired Sallis and his security company.

       At the time Cathy and her husband, Tom, hired Sallis they did not know he

was a convicted felon. Sallis drafted a contract between himself as the chief

executive officer of Secure-All and Cathy on behalf of the estate. The contract

terms included paying “armed” security guards $20 per hour and “unarmed”

security guards $15 per hour. The contract did not define “armed” but specified

the presence of “at least one armed officer at all times during the course of this

contract.”

       Sallis’s wife delivered security supplies, including a .40 caliber semi-

automatic pistol and ammunition, from their house to the auction site. Over the

span of three days, October 12 through 14, Sallis and a team of nine other

individuals provided around-the-clock security. Cathy and other witnesses saw

Sallis in possession of a firearm. Cathy recalled Sallis concealed it in his waistband

or holster. Sallis and his team were present for the October 14 auction. The

auctioneer directed Sallis and his men to conceal their firearms.           During a

discussion with Sallis at the auction, Tom saw Sallis remove a firearm from under

his shirt. Tom recognized the pistol as requiring .40 caliber ammunition because

Tom owned a firearm of the same caliber.

       After the auction, Sallis provided a timesheet to Cathy including an hourly-

rate breakdown of charges for armed and unarmed guards. The sheet listed

Desmond Rogers, Ramon Cooper, and Sallis at $20 an hour, or, in other words,

as armed guards. Sallis was listed at the armed rate for all three days.
                                          4


       In the days before the auction, Cathy rented a car for Sallis to drive back

and forth from the auction site. On the Sunday following the auction, Cathy and

Tom went to Sallis’s house to retrieve the rental car. They found Sallis and his

wife loading the rental car with personal items. Sallis told the Pingels to leave, and

they did. During this confrontation, Cathy was on the phone with her daughter,

Hansel. Hansel called the police, who went to Sallis’s house. The police asked

the Pingels to return to the Sallis residence, but they declined.

       A few days later, Cathy filed a police report. She alleged Sallis had a gun

during the confrontation over the rental car. Based on Cathy’s report, officers

obtained a warrant to search Sallis’s house. The police seized security badges,

conceal-carry permit badges, paper shooting targets, and handcuffs. But they did

not recover any firearms.

       The State charged Sallis with being a felon in possession, carrying

weapons, and impersonating a public official.        The State amended the trial

information to include the habitual-offender enhancement. On September 13,

2017, a jury trial commenced.       Five days later, the jury convicted Sallis of

possession of a firearm by a felon and carrying weapons. At a September 26

hearing, Sallis admitted his previous felony convictions.

       Sallis moved for a new trial on November 2. The court denied the motion

and sentenced Sallis to fifteen years confinement with a mandatory three-year

minimum for the possession charge and a two-year minimum for the carrying

weapons charge, to be served concurrently. The court ordered Sallis to pay court

costs but found he had “no reasonable ability to repay court-appointed attorney

fees” given his prison sentence. Sallis appeals.
                                           5


II. Scope and Standards of Review.

       “We review challenges to the sufficiency of evidence for correction of errors

at law.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). A verdict of guilty will

be upheld if supported by substantial evidence. Id. Substantial evidence exists

when a rational trier of fact would be convinced the defendant is guilty beyond a

reasonable doubt.     Id. To determine whether a finding of guilt is sufficiently

supported, all relevant evidence is viewed in the light most favorable to the State.

Id. We also review restitution orders for correction of errors at law. State v.

Jenkins, 788 N.W.2d 640, 642 (Iowa 2010).

       Courts apply a different standard to motions for new trial than to sufficiency-

of-the-evidence claims. “We generally review rulings on motions for new trial

asserting a verdict is contrary to the weight of the evidence for an abuse of

discretion.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “A district court should

grant a motion for a new trial only in exceptional circumstances.” Id. at 705. But

“we review a claim that the district court failed to apply the proper standard in ruling

on a motion for new trial for errors at law.” Id. at 706.

III. Discussion.

       A. Sufficiency of the Evidence.

       Sallis contends the State offered insufficient evidence to prove he

possessed a firearm. He argues the testimony of the Pingels and Hansel was

“self-contradictory and borderline absurd” and ought to be deemed a nullity. See

State v. Smith, 508 N.W.2d 101, 103 (Iowa 1993) (recognizing in rare

circumstances the testimony of a witness “may be so impossible and absurd and

self-contradictory that it should be deemed a nullity by the court” (quoting Graham
                                              6

v Chicago & N.W. Ry. Co., 119 N.W, 708, 711 (Iowa 1909))).                      Without the

testimony from those three witnesses, Sallis contends the State’s evidence was

insufficient. The State contends the jury resolved any credibility questions and the

witnesses explained why their accounts changed over time.2

       After thoroughly reviewing the record, we conclude those witnesses’

testimony—together with the other evidence in the case and viewed in the light

most favorable to the State—is sufficient to convince a rational trier of fact Sallis

was guilty beyond a reasonable doubt. Sallis stipulated he was a felon and several

witnesses saw him in possession of a firearm. Substantial evidence supported the

jury verdict.

       B.       Ruling on Motion for New Trial.

       Iowa Rule of Criminal Procedure 2.24(2)(b)(6) allows a defendant to request

a new trial when the verdict is “contrary to law or evidence.”3 The rule means

“contrary to the weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa

1998). Where the evidence “preponderates heavily” against the verdict, the district

court should grant a new trial based on the weight of the evidence to avoid a

miscarriage of justice.      Id. at 658–59.       The weight-of-the-evidence standard


2
  The State contends Sallis did not preserve error on his Smith argument. During trial,
Sallis moved for directed verdict arguing, “The only evidence proffered by the State were
through three witnesses whose stories have changed a lot . . . the credibility is so suspect
that I don’t believe the jury could reasonably find, absent an actual gun, that Mr. Sallis was
in possession of a gun.” That motion and corresponding argument preserved error on the
present claim.
3
  Sallis also captioned his post-trial filing as a motion in arrest of judgment under Iowa
Rule of Criminal Procedure 2.24(3). A motion in arrest of judgment is commonly used to
challenge a guilty plea, though it may be filed after a verdict of guilty. State v. Dallen, 452
N.W.2d 398, 399 (Iowa 1990). But it may not be used to challenge the sufficiency of
evidence. Id.; see also State v. Oldfather, 306 N.W.2d 760, 763 (Iowa 1981) (holding
motion in arrest of judgment was proper when underlying statute was not applicable to
facts proven).
                                            7


requires the district court to independently “weigh the evidence and consider the

credibility of the witnesses.” Id. at 658. On appellate review, we do not re-weigh

the evidence or judge the credibility of the witnesses in our consideration of the

denial of a motion for new trial—our review is limited to the exercise of discretion

by the trial court. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).

       In ruling on the new-trial motion, the district court stated:

       The Court does find that there was sufficient evidence on the record
       as a whole on which legal judgment can be entered against the
       defendant in this case. The evidence was substantial and the jury
       had more than adequate evidence upon which to base its verdict and
       the Court will deny the Motion For New Trial and Motion in Arrest of
       Judgment for the reasons stated today and the reasons I’ve stated
       previously on the record during the trial.

       On appeal, Sallis asserts the district court applied the wrong standard.4 He

claims the court did not independently evaluate the evidence or make credibility

determinations.    Sallis alternatively claims the court abused its discretion in

denying the motion.

       The State contends we should affirm because the district court “never

indicated it was viewing the evidence in the light most favorable to the State”—a

framing that would have betrayed its application of the sufficiency rather than the

weight-of-the-evidence standard. See State v. Scalise, 660 N.W.2d 58, 65–66

(Iowa 2003) (“The court is not to approach the evidence from the standpoint ‘most

favorable to the verdict.’ Rather, the court must independently consider whether




4
 The State contends Sallis did not preserve error because his “vague and standardless”
motion for new trial “did not clearly request a ruling on the correct standard.” The State
also suggests Sallis had a burden to inform the court it applied the wrong standard. We
conclude Sallis preserved error by citing rule 2.24(2)(b)(6) in his new-trial motion and
arguing at the hearing the verdicts were “contrary to the weight” of the evidence.
                                           8


the verdict is contrary to the weight of the evidence and that a miscarriage of justice

may have resulted.” (citation omitted)).


       We recognize considering the evidence in the light most favorable to the

verdict is a key distinction between ruling on a motion for judgment of acquittal and

ruling on a motion for new trial. See Ellis, 578 N.W.2d at 658–59; see also State

v. Jones, No. 16-1828, 2018 WL 1858296, at *7 (Iowa Ct. App. Apr. 18, 2018)

(finding no error when district court was responding to defendant’s pro se motion,

the basis for the motion was not “entirely clear” and the court “gave no indication

it was considering the evidence in the light most favorable to the State”). But even

when the district court does not expressly approach the question from a standpoint

favorable to the State, references to “sufficient” and “substantial” evidence are red

flags. See Ary, 877 N.W.2d at 706 (remanding case for the district court to apply

the weight-of-the-evidence standard when judge found the evidence “was

sufficient for the jury to convict”); see also State v. Root, 801 N.W.2d 29, 31 (Iowa

Ct. App. 2011) (remanding for application of weight-of-the-evidence standard

when judge found verdict supported by “competent” evidence).             In Root, we

remanded because “using the correct terminology does away with any lingering

ambiguity and serves to instill confidence in the ruling.” 801 N.W.2d at 31.

       Here, before ruling, the district court evinced uncertainty as to the correct

criterion for the new-trial motion, asking the prosecutor: “Just so I’m clear on what

you believe the standard to be is what?” Unfortunately, the State’s response came

across as a word salad: “[F]or the standard for new trial, basically supported by

the—supported by the substantial evidence in that the jury—that a reasonable jury

could find for that verdict.” After that confusing build-up, the district court did not
                                           9


refer to the weight of the evidence, but instead repeated the State’s reference to

the “substantial evidence” test. Use of the word “substantial”—standing alone—

does not mean the district court applied the wrong standard. See State v. O’Shea,

634 N.W.2d 150, 155 (Iowa Ct. App. 2001) (finding district court applied proper

test to new-trial motion when it “made specific credibility findings—a thing not

permitted under a sufficiency of the evidence assessment—and the bulk of its

ruling is a near verbatim recitation of the Ellis criterion” despite its use of the word

“substantial”). But in this case, the district court did not make findings concerning

the truthfulness of the State’s witnesses against Sallis nor did it assess whether

the greater weight of the credible evidence tipped against the jury’s verdicts. In

the absence of that assessment, we must remand for the court to apply the Ellis

standard.

       But, because we also find the evidence was sufficient to deny the motion

for judgment of acquittal, we affirm the convictions conditionally, vacate the ruling

on the new-trial motion, and remand for reconsideration of the motion applying a

weight-of-the-evidence standard to the existing record. If the court denies the

motion, our affirmance will stand. If the court grants the motion, the court should

set aside the judgment and sentence and order a new trial, forgoing further action

on the restitution issue detailed below.

       C.     Court Costs.

       Regarding court costs, Sallis advances three arguments: (1) the sentencing

court erred in concluding he was reasonably able to pay court costs because that

conclusion is incompatible with its conclusion he did not have a reasonable ability

to pay attorney’s fees; (2) the court should not determine a defendant’s reasonable
                                          10


ability to pay court costs when the amount is unknown; and (3) the court articulated

no basis for its conclusion he was reasonably able to pay court costs. The State

contends Sallis’s arguments are premature because no plan of restitution was filed

at the time of sentencing and because Sallis has not petitioned for a modification

under Iowa Code section 910.7 (2017).

       Regardless of a defendant’s ability to pay, the sentencing court must order

restitution to crime victims and to the clerk of court for fines, penalties, and

surcharges. Iowa Code § 910.2(1); see also State v. Wagner, 484 N.W.2d 212,

215–16 (Iowa Ct. App. 1992).        But ordering court costs and court-appointed

attorney fees is subject to a defendant’s reasonable ability to pay. Iowa Code

§ 910.2(1); see also State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985).                A

defendant’s reasonable ability to pay is a “constitutional prerequisite” for restitution

orders under section 910.2. State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987).

“A determination of reasonableness, especially in a case of long-term

incarceration, is more appropriately based on the inmate’s ability to pay the current

installments than his ability to ultimately pay the total amount due.” Id. at 649.

“The ability to pay is an issue apart from the amount of restitution and is therefore

not an ‘order [ ] incorporated in the sentence’ and is therefore not directly

appealable as such.” State v. Jose, 636 N.W.2d 38, 45 (Iowa 2001) (alteration in

original). Until the plan of restitution contemplated by Iowa Code section 910.3 is

completed, the court is not required to give consideration to the defendant’s ability

to pay. See State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999).

       When Sallis filed his notice of appeal, the total amount of restitution had yet

to be determined, and the plan of restitution was not completed. Until the total
                                         11


obligation is determined, the court cannot determine whether a defendant is

reasonably able to pay restitution. We conclude the district court abused its

discretion in determining Sallis had the ability to pay because such a determination

was premature. See State v. Campbell, No. 15-1181, 2016 WL 4543763, at *4

(Iowa Ct. App. Aug. 31, 2016) (holding “sentencing court cannot determine a

defendant’s ability to pay restitution without, at a minimum, an estimate of the total

amount of restitution”).

       We affirm the jury verdicts on the sufficiency of the evidence. But we

reverse the district court’s judgment on the new-trial motion and its determination

Sallis had the reasonable ability to pay restitution. We remand for two actions:

(1) a corrected sentencing order removing the reference to Sallis’s ability to pay

and (2) application of the weight-of-the-evidence standard on Sallis’s motion for

new trial.

       CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION

VACATED; REMANDED WITH DIRECTIONS.

       Vogel, C.J., concurs; Danilson, S.J., partially dissents.
                                         12


DANILSON, Senior Judge. (Concurring in Part and Dissenting in Part)

       I agree with the majority in all respects except the adequacy of the district

court’s ruling on the motion for new trial. I believe the district court applied the

proper standard, and I would affirm the convictions but remand with directions to

correct the sentencing order.

       Here, the district court concluded there was both sufficient and substantial

evidence supporting the verdict. Moreover, the court referenced and considered

the “record as a whole” as is required in ruling on the motion in arrest of judgment,

which necessarily would include consideration of the credibility of the witnesses.

See Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 525 (Iowa 2012) (concluding

a view of the “record as a whole” includes a consideration of evidence supporting

a challenged finding and evidence detracting from it). The district court need not

reference the credibility of each witness. The district court did not use the magic

words, “weight of the evidence.” However, in addition to finding the evidence both

sufficient and substantial, the court stated “the jury had more than adequate

evidence upon which to base its verdict.” I believe it is clear the district court was

aware a different standard applied in ruling upon a motion for new trial than a

motion for judgment of acquittal. And, although the court did not precisely say all

the magic words, I believe it applied the proper standard and rendered a proper

ruling on the motion.
