                    IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0179
                                  Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT ARTHUR REYNOLDS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Susan

Larson Christensen, Judge.



      Robert Reynolds appeals his conviction for second-degree murder.

AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       Robert Reynolds shot a woman to death in East Pottawattamie County. A

jury found him guilty of first-degree murder. On direct appeal, this court reversed

and remanded the case for a new trial based on the district court’s decision to

change venue from one part of the county to another within the bifurcated district.

See State v. Reynolds, No. 15-0226, 2016 WL 6652311, at *5 (Iowa Ct. App. Nov.

9, 2016). We stated, “If a change of venue was otherwise called for here, the

district court should have either moved the entire case to West Pottawattamie

County and summoned jurors from West Pottawattamie County or kept the case

in East Pottawattamie County and held trial at an East Pottawattamie County

location.” Id.

       On remand, Reynolds moved to dismiss the matter. He alleged “[v]enue

and jurisdiction in the Iowa District Court of Pottawattamie County at Council Bluffs

[were] inappropriate, and he “should have properly been indicted in the Iowa

District Court of Pottawattamie County at Avoca, Iowa, if at all.” The district court

denied the motion. Reynolds waived his right to a jury trial, and the State amended

the charge to second-degree murder. Following a bench trial, the district court

found Reynolds guilty.

       On appeal, Reynolds contends (1) the district court lacked authority to hear

the case because the trial information was filed in West Pottawattamie County

rather than East Pottawattamie County; (2) the district court violated his due

process rights by disallowing an insanity defense; and (3) the district court’s finding

of guilt was not supported by sufficient evidence and was contrary to the weight of

the evidence.
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I.     Dismissal Ruling


       Iowa Code section 803.2(1) (2014) states that criminal actions “should be

tried in the county in which the crime is committed, except as otherwise provided

by law.” Iowa Code section 607A.23 states:

       In counties which are divided for judicial purposes, and in which court
       is held at more than one place, each division shall be treated as a
       separate county, and the grand and petit jurors, selected to serve in
       the respective courts, shall be drawn from the division of the county
       in which the court is held and at which the persons are required to
       serve.

And, at the time of the offense, Iowa Code section 602.6105(2) stated “[i]n any

county having two county seats, court shall be held at each, and in the county of

Pottawattamie, court shall be held at Avoca, as well as at the county seat.”1

       In 1992, the supreme court closed the clerk of court’s office in Avoca.2 The

chief judge of the district followed up by ordering “all pending files and records

transferred to the Clerk’s office at Council Bluffs.” The Avoca clerk’s office has

remained closed.

       The prosecutor cited the closure in resisting Reynolds’ dismissal motion.

He noted that the trial information was filed with the clerk of court in Council Bluffs,

who was “[t]he only clerk of court . . . available at the time it was filed in 2014.” The

district court agreed and overruled the motion to dismiss. On appeal, Reynolds

insists the trial information should have been filed in Avoca.



1 That language was amended in 2015 to delete the reference to Pottawattamie
County. The statute now states: “In any county having two county seats, court
shall be held at each county seat.” Iowa Code § 602.6105(2).
2 The order, which is included in our record, stated, “It is . . . ordered that the clerk

of court’s office in Avoca, Pottawattamie County, be closed as soon as reasonably
practical.”
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          As a preliminary matter, Reynolds concedes the filing in Council Bluffs did

not divest the district court of subject matter jurisdiction but only authority to hear

the case.       See State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993)

(distinguishing subject matter jurisdiction from authority to hear a case and stating

the latter may be waived if not raised). Because he raised the issue and the issue

was decided, error was preserved and we proceed to the merits of the dismissal

ruling.

          The second courthouse in Pottawattamie County was created by statute

over a century ago. See State v. Pelser, 163 N.W. 600, 602 (Iowa 1917) (“The

21st General Assembly abolished the circuit court, placing all powers and duties

of the circuit court upon the district court; and by section 5 of the act, chapter 134,

provided for holding sessions of the district court at Avoca.”); State v. Higgins, 95

N.W. 244, 246 (Iowa 1903) (“[I]t was within the legislative intent that by the act of

the Twenty-First General Assembly, as modified by the act of the Twenty-Second

General Assembly, the court at Avoca should be continued; in other words, that

the original purpose to divide the county of Pottawattamie for judicial purposes

should be carried into and made a part of the plan for the reorganization of the

courts of the state.”). The existence of two courthouses within the same county

spawned litigation to resolve the jurisdictional reach of each. See Higgins, 95 N.W.

at 246.

          In Pleak v. Marks & Shields, 152 N.W. 63, 64 (Iowa 1915), the supreme

court was asked to decide the identical question raised here: whether “the two

divisions are the equivalent of two counties, and . . . the bringing of the action in

the Avoca division was equivalent to bringing it in the wrong county.” The court
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side-stepped the issue, stating “[u]pon the record before us we do not find it

necessary to pass upon it.” Pleak, 152 N.W. at 64. The court noted that “[t]he

transaction out of which this suit arose occurred wholly in the Avoca district.” Id.

       One hundred years after Pleak, the legislature repealed the 1884 Iowa Acts,

chapter 198 and, as noted, amended section 602.6105(2) to delete references to

Pottawattamie County and Avoca. See 2015 Iowa Acts ch. 138 § 70–71. The

repeal and amendment postdated the State’s filing of the trial information in this

case. See Reynolds, 2016 WL 6652311, at *4 n.4. For that reason, we looked to

the 1884 Act in Reynolds’ first appeal. Id.

       The 1884 Act contained the following provision: “It shall be the duty of the

clerk of the courts of Pottawattamie county to keep an office at Avoca and perform

all the duties of clerk of the circuit court at Avoca.” Ch. 198 § 5, 20th Gen. Assemb.

(Iowa 1884). The language supports Reynolds’ argument that there had to be a

clerk of court in Avoca to accept and file the State’s trial information. That said,

the Iowa Constitution vests the supreme court with “supervisory and administrative

control over all inferior judicial tribunals throughout the state.” Iowa Const. art. V,

§ 4. See also Iowa Code § 602.1201 (“The supreme court has supervisory and

administrative control over the judicial branch and over all judicial officers and court

employees.”); Root v. Toney, 841 N.W.2d 83, 87 (Iowa 2013) (“Article V, section 4

of the Iowa Constitution expressly empowers our court to exercise ‘supervisory

and administrative control over all inferior judicial tribunals throughout the state.’

This obviously includes the power to set the hours of operation of the clerks of

court.”); State v. Hoegh, 632 N.W.2d 885, 888 (Iowa 2001) (“It is fundamental to

our system of government that the authority for courts to act is conferred by the
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constitution or by statute. Yet, it is equally fundamental that in addition to these

delegated powers, courts also possess broad powers to do whatever is reasonably

necessary to discharge their traditional responsibilities.”); Op. Iowa Att’y Gen.

No. 90-3-4(L) (Mar. 7, 1990), 1990 WL 484887, at *3 (“Other than statutorily

mandated legal holidays, it is the court system, under the supervision of the Iowa

Supreme Court, which decides when court offices, including the clerk of court

office, will close.”).   The supreme court exercised its supervisory authority in

closing the office of the Avoca clerk of court. Further, the chief judge of the district

acted pursuant to the supreme court order in transferring pending files to the clerk

of court in Council Bluffs.

       As the district court concluded, the State filed its trial information with the

only available clerk’s office in the county. We discern no error in the court’s ruling

denying Reynolds’ motion to dismiss the trial information.

II.    Insanity Defense

       Reynolds filed a notice of intent to rely on an insanity defense. The State

moved to strike the defense. Following a hearing at which the court considered a

defense expert’s report on Reynolds’ state of mind, the district court found “no

compelling evidence to permit submission for jury determination the affirmative

defense of insanity.”      The court also disallowed the “affirmative defense of

diminished responsibility” but found Reynolds’ “temporary intoxication may be

admissible not as a defense but only regarding motive or intent.”

       On appeal, Reynolds argues, “[T]he district court’s ruling that he may not

rely on the insanity defense at the time of trial violated his due process right to

present a defense.” The State responds that Reynolds “failed to preserve error”
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because “he never claimed that the district court’s ruling implicated his

[constitutional] right to present a defense.”

       We agree Reynolds failed to preserve error on the due process claim.

Reynolds alternatively raises the issue under an ineffective-assistance-of-counsel

rubric. We find the record inadequate to address the issue. See State v. Clark,

814 N.W.2d 551, 567 (Iowa 2012) (“In this case, any arguments on the subject of

ineffective assistance of counsel have been raised in ‘a general or conclusory

manner.’ For this reason, the record is not sufficient for us to address them.”

(citation omitted)).

       Under the same heading, Reynolds asserts we should “revisit [State v.

Booth, 169 N.W.2d 869 (Iowa 1969),] . . . and conclude that evidence of voluntary

intoxication which produces temporary insanity can be a complete defense to a

crime.” Assuming without deciding the issue is preserved for our review, Reynolds

acknowledges this court is not at liberty to overrule supreme court precedent. See

State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).

III.   Sufficiency of the Evidence/Weight of the Evidence

       The district court summarized “[t]he elements of Murder in the Second

Degree, as charged in the amended Trial Information filed in this case” as follows:

“(1) On or about April 8, 2014, Robert Reynolds shot [a woman.] (2) [The woman]

died as a result of being shot.          (3) Robert Reynolds acted with malice

aforethought.” Reynolds contends the evidence was insufficient to support the

malice aforethought element.

       “Malice aforethought requires the actor to have ‘a fixed purpose or design

to do physical harm to another that exists before the act is committed.’” State v.
                                         8

Tyler, 873 N.W.2d 741, 751 (Iowa 2016) (quoting State v. Lyman, 776 N.W.2d 865,

877 (Iowa 2010)). “The relationship that must be shown between the state of mind

that is malice aforethought and the homicidal act is more accurately characterized

as a causal relationship than as a temporal relationship.” State v. Lee, 494 N.W.2d

706, 707 (Iowa 1993). “[I]t need not be shown to have existed for any length of

time before, but only requires such deliberation as makes a person appreciate and

understand at the time the act is committed its nature and probable consequences

as distinguished from an act done in the heat of passion.” State v. Serrato, 787

N.W.2d 462, 469 (Iowa 2010) (quoting State v. Gramenz, 126 N.W.2d 285, 290

(Iowa 1964)).

       The law allows a presumption of malice aforethought from the use of a

deadly weapon in the absence of evidence to the contrary. State v. Reeves, 670

N.W.2d 199, 207 (Iowa 2003). The “presumption may be rebutted by evidence

showing the killing was accidental, under provocation, or because of mental

incapacity.” Id.

       The district court found the following pertinent facts. A friend of Reynolds’

wife Theresa planned to spend the night at the Reynolds home before catching a

flight the next morning. Reynolds, Theresa, and the friend were drinking but,

according to Theresa’s teenage daughter, “not more than usual.” The daughter

went to bed but was awoken by a commotion in the kitchen. She went to the

kitchen and saw her step-father Reynolds yelling at the friend. She told them to

knock it off. After taking her nephew to the basement, she turned “to go back

upstairs.” “As she hit her bedroom door, she heard the first gunshot,” then a

“second gunshot,” and as “she turned the corner at the top of the steps,” she heard
                                         9


“the third and final gunshot.” She saw “Reynolds with the gun and [the friend] on

the floor with a lot of blood.” She called 911 and stated, Reynolds “shot and killed

my mom’s friend!”

       Meanwhile, Theresa had fallen asleep on the couch with her grandson but

awoke to “yelling in the kitchen.” She ran in and saw her friend cowering on the

floor and Reynolds “yelling that [the friend] was a demon or possessed.” Theresa

told Reynolds to “just go to bed.” At that point, “Reynolds went to the bedroom but

returned to the kitchen with a gun that was kept in the headboard of their bed.” He

“shoved [Theresa] out of the way, went over to where [the friend] was lying, stood

over her and then shot her.”

      The court found that Reynolds acted with malice aforethought. The court

noted that he “had several opportunities to deliberate—even if for a short time.”

The court cited the moments after Theresa and her daughter entered the kitchen,

the period of time when Reynolds “went to his bedroom” and “chose to grab his

loaded Glock 9 mm handgun from the inside of their headboard and return to the

kitchen,” the period when Theresa “stood between” Reynolds and her friend, and

a moment when the friend held “up her arm in the face of imminent danger.” The

court’s findings tracked the testimony of Theresa and her daughter almost

verbatim.

      We recognize that both witnesses characterized Reynolds’ demeanor as

inconsistent with the norm. Theresa’s daughter agreed he showed no emotion

after the shooting and she “had never seen . . . Reynolds look like that in all the

years that” she had known him. Theresa confirmed Reynolds was screaming,

“Can’t you see what she’s doing?” and his statement did not make sense to her.
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She conceded she had never seem him like this before and had never seen him

this mad. She agreed she had commented that it was like “he was looking through

us not at us.” She also agreed he called the woman “a demon.” She conceded

Reynolds began drinking early in the afternoon and continued drinking. But she

testified Reynolds acted without provocation.

       The witness descriptions of Reynolds’ demeanor supported the defense

expert’s opinion that the way Reynolds looked would be “consistent with someone

who would be suffering from an alcohol-induced psychotic disorder” lasting “about

a day, 24 hours.” But “where the defendant has been charged with second-degree

murder, a general intent crime, the defendant’s voluntary intoxication cannot

negate malice aforethought and reduce the crime to manslaughter.” State v.

Caldwell, 385 N.W.2d 553, 557 (Iowa 1986); State v. Hall, 214 N.W.2d 205, 209

(Iowa 1974) (“[I]f a drunken [person] takes the life of another, unaccompanied by

circumstances of provocation or justification, the jury will be warranted in finding

the existence of malice, though express malice has not been proven.”) (quoting

State v. Wilson, 147 N.W. 739, 740 (Iowa 1914)). In short, even if Reynolds’

appearance was indicative of the specified disorder, it did not preclude a finding

that he acted with malice aforethought.

       Substantial evidence supports the district court’s finding of malice

aforethought and the court’s finding of guilt. See State v. Bower, 725 N.W.2d 435,

444 (Iowa 2006). In light of our conclusion that the State proved the elements of

second-degree murder, we need not reach Reynolds’ contention that the court

should have considered the lesser included offense of voluntary manslaughter.
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       In the alternative, Reynolds argues “the weight of the credible evidence

does not support the court’s verdict.” Reynolds did not raise this ground in his new

trial motion or in argument at sentencing, nor did the court rule on it. Accordingly,

error was not preserved. See State v. Thompson, 836 N.W.2d 470, 491 (Iowa

2013) (“On appeal, Thompson relies on Iowa Rule of Criminal Procedure

2.24(2)(b)(6) and State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). However,

Thompson’s counsel never cited that rule or Ellis in his posttrial motion or during

the hearing on that motion in district court.”); Top of Iowa Co-op. v. Sime Farms,

Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“[T]his court will consider on appeal

whether error was preserved despite the opposing party’s omission in not raising

this issue at trial or on appeal”). But even if we were to consider the merits, we

would discern no abuse of discretion. See State v. Grant, 722 N.W.2d 645, 648–

49 (Iowa 2006). As the supreme court stated in Grant,

       The granting of a new trial based on the conclusion that a verdict is
       against the weight of the evidence is reserved for those situations in
       which there is reason to believe that critical evidence has been
       ignored in the fact-finding process. In the present case, all of the
       evidence presented was carefully reviewed by the district court in its
       findings of fact. There is no basis for concluding that any critical
       piece of evidence was ignored in the trial court’s decision process.

Id. We affirm the district court’s denial of Reynolds’ new trial motion and his

judgment and sentence for second-degree murder.

       AFFIRMED.
