                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1250
                            Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRY DENNIS FOTH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



      Terry Foth appeals from his conviction and sentence for domestic abuse

assault causing bodily injury.        CONVICTION        AFFIRMED, SENTENCE

VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Heather Ann Mapes (until

withdrawal) and Kevin Cmelik, Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., Vaitheswaran, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2


VOGEL, Presiding Judge.

       Terry Foth appeals from his conviction and sentence, following a jury trial,

for domestic abuse assault causing bodily injury. Foth asserts the district court

erred when it excluded evidence that the victim allegedly made prior false

accusations of domestic abuse; furthermore, he argues, trial counsel was

ineffective for failing to assert the admission of this evidence was constitutionally

required. He also contends the court imposed an illegal sentence when it taxed

attorney fees and costs associated with one charge, on which he was acquitted.

       We conclude the district court properly excluded testimony regarding the

victim’s prior allegations of domestic abuse, as the allegations were not shown to

be false, and such evidence would have confused the issues being tried;

therefore, the prejudice substantially outweighed its probative value. Moreover,

the admission of this evidence was not constitutionally required, and trial counsel

was not ineffective for failing to assert this argument in his objection. We further

conclude the attorney fees, as a whole, were properly taxed to Foth; however,

Foth should only be taxed for one-half of the costs associated with his

prosecution, as he was only convicted of one of the two charges. Consequently,

we affirm his conviction but vacate the portion of the sentence taxing all costs to

Foth and remand for entry of an amended sentencing order.

I. Factual and Procedural Background

       At trial, the jury could have found the following facts. On December 11,

2012, police responded to a report that Renea Simon had been assaulted. At

trial, Simon testified that Foth, who was engaged to Simon, had assaulted her

several times over the course of the evening. Specifically, Simon claimed the
                                           3


two argued and Foth shoved Simon several times, slammed her against a wall,

knocked her down, and caused her to hit her head on the kitchen floor. Sitting on

top of her, Foth pounded her backwards, again hitting her head against the floor.

Simon attempted to scream, but Foth covered her mouth, forcefully pressing his

hand and arm into her face and throat. Foth then put one hand around her

throat, while hitting her in the face with the other, which Simon testified left her

with fingernail marks near her mouth and on her neck. When Foth put both

hands around her throat, Simon was afraid that Foth was going to choke her to

death. After this assault Simon lost consciousness.1

       When Foth went outside, Simon was also able to leave the apartment to

look for help. No one responded when she knocked on her neighbors’ doors.

When she observed Foth still outside the apartment, Simon ran back inside. To

prevent Foth from reentering, Simon locked both the front door and kitchen door,

propping a chair against the kitchen door. However, Foth returned, kicked in the

kitchen door—causing the chair to break—and reentered the apartment. Simon

testified that Foth became even more aggressive when he entered the home the

second time. After Foth again assaulted Simon in the kitchen, he went upstairs

to pack some of his belongings and left the residence.

       During the assault, Foth shattered Simon’s cell phone. Needing someone

to call the police on her behalf, Simon used Foth’s laptop to post a message on

Facebook. As a response to the post, a friend called the police. The authorities

arrived and noted the home was in disarray. At trial, Officer Woods testified:

1
  She further testified she suffers from seizures, that she has a service dog to help her
with this condition, and that she may have had a seizure following Foth’s assault. She
testified Foth struck the dog, leaving him dazed during the assault.
                                         4


       It seemed not normal of what a kitchen would look like. A chair was
       overturned, one of the legs was broken on the chair, there was
       some scuffing, looked like fresh scuff marks near the refrigerator on
       the wall, a picture looked like it either had been thrown down or had
       fallen off the wall because it was shattered and there were shards
       of glass on the ground. It looked like something had happened in
       that room.

He further stated Simon also had red marks and scratches on her neck, a scratch

down her side where her sweatshirt was torn, marks on her lips from the blood,

and bruising on her face. The officers testified she did not appear intoxicated.

       Simon refused ambulance transportation to the hospital that evening out

of concern for the cost; however, she went to a medical clinic the following day.

At trial, Anne Barner, the physician’s assistant who examined Simon, testified

she observed bruising around Simon’s nasal cavity, blood inside her nose, soft

tissue swelling, and bruising over her bilateral jaw. X-rays were taken of Simon’s

nose and elbow, which indicated the presence of a nasal fracture. At trial, Barner

testified the injuries were consistent with Simon’s descriptions of the assault.

       Foth’s version of events differed dramatically from Simon’s. He testified

he returned home around 5:00 p.m. and found Simon in “a puddle on the couch,”

claiming she was visibly intoxicated with slurred speech, stumbling movements,

poor motor skills, and she “reeked of alcohol.” He testified that he confronted her

about her intoxication and that she then became argumentative. Foth claims he

went upstairs to pack his belongings, Simon kicked him in the buttocks, and he

carried the suitcase out to his vehicle. Foth stated he then returned to continue

packing, and when Simon attempted to kick him once more, he dodged her kick,

and she fell down the stairs. He testified he watched her fall and grunt as her

body hit the steps and the floor, but he did not check on her condition. Although
                                           5


he admitted to breaking the kitchen chair and Simon’s cell phone, he stated he

did so out of spite. To corroborate Foth’s statement regarding Simon’s alcohol

use, he subpoenaed Aaron Simon, Simon’s ex-husband. Aaron testified Simon

had a history of alcohol abuse, and as a result, he had full custody of their two

minor children.

       A trial information, as later amended, charged Foth with (Count I)

domestic abuse assault by strangulation, a class “D” felony in violation of Iowa

Code sections 236.2, 708.1, and 708.2A(5) (2011),2 and (Count II) domestic

abuse assault, a serious misdemeanor, in violation of Iowa Code sections 236.2,

708.1, and 708.2A(2)(b). On June 20, 2014, the State filed a motion in limine

seeking to exclude character evidence of Simon, including specific instances of

conduct, reputation, or opinion evidence pursuant to Iowa Rules of Evidence

5.404, 5.608, and 5.609. It also argued testimony by Aaron Simon should be

excluded. Argument on the motions was held prior to voir dire, and the court

sustained the State’s motions pending further foundation.

       Trial commenced on July 1, 2014. On cross-examination of Aaron, Foth

sought to elicit testimony regarding Simon’s prior accusations of domestic abuse;

an offer of proof was made, attempting to establish the falsity of Simon’s previous

complaints. During the offer of proof, Aaron stated Simon had made two prior

accusations against him, which he alleged were false. In November 2008, Aaron

was charged with domestic abuse assault causing bodily injury, a serious

misdemeanor under Iowa code section 708.2A(2)(b), after Simon claimed Aaron

2
  The amendment included, in part, a correction to the code section, charging Foth under
Iowa Code section 708.2A(5), as opposed to section 708.2A(4A), which was the section
charged in the original trial information.
                                         6


had thrown a can of vegetables at her. He was also charged with a violation of a

no-contact order. Aaron recalled that a judge dismissed the violation of the no-

contact order in January 2009 and that the State dismissed the domestic abuse

charge March 2009 “due to insufficient evidence” but with the proviso that Aaron

complete a psychological evaluation and anger management classes.

      Aaron further testified during the offer of proof that in May 2009, while in

the midst of a custody dispute in the couple’s divorce proceedings, Simon

accused him of smashing her face into a steering wheel. The next day, Simon

was treated for a broken nose and a concussion. Although a police report was

filed, Aaron was not charged and no investigation occurred; additionally, and in

connection with that incident, Aaron claimed Simon had sought a second

protection order, but a judge refused to issue one.   Aaron also claimed Simon

made false reports to the Iowa Department of Human Services as to Aaron’s

abuse of her and the children, but none of those instances were sufficiently

documented in the offer of proof.      Aaron also described various incidents in

which Simon became intoxicated, but none appeared to be complaints of

domestic abuse or result in any credibility determination. Therefore, only the two

incidences described above were part of Aaron’s claim that Simon had made

false accusations of domestic abuse.

      In rebuttal, the State proffered evidence, further eliciting testimony from

Aaron, regarding the dissolution court ordering him to complete anger

management classes. Moreover, while Aaron also attempted to show Simon had

accused her ex-boyfriend, William Phillips, of assault causing bodily injury, a

serious misdemeanor, the State claimed this allegation actually resulted in a
                                        7


guilty plea by Phillips to the lesser-included offense of simple assault. Based on

all the proffered evidence, the State argued Foth failed to establish Simon’s prior

accusations were false such that they would be relevant in the current action.

The district court found the domestic abuse assault charge as well as Phillips’s

conviction appeared to have been factually supported, and the incident of hitting

Simon’s head into the steering wheel was neither reported nor investigated and,

therefore, lacked a judicial credibility determination. It further found the prior

incidents and allegations were not relevant, were factually complicated, and

would only serve to confuse the jury such that the prejudice of introducing the

evidence substantially outweighed any probative value.

      Trial resumed, and on July 2, 2014, the jury found Foth guilty of the lesser-

included offense (Count I) of domestic abuse assault causing bodily injury, in

violation of Iowa Code sections 708.2A(1) and 708.2A(2)(b). It acquitted Foth of

the charge under Count II. Foth filed a motion for new trial, which the court

denied. The sentencing hearing was held on August 1, 2014, and the district

court sentenced Foth to a term of incarceration of 365 days, with all but thirty

days suspended, followed by two years of probation. It further ordered Foth to

pay the costs of the prosecution and court-appointed attorney fees.           Foth

appeals.

II. Standard of Review

      We review evidentiary claims based on the rules of evidence for an abuse

of discretion. State v. Rodriguez, 636 N.W.2d 234, 242 (Iowa 2001). Our review

of constitutional issues is de novo. State v Predka, 555 N.W.2d 202, 204 (Iowa
                                              8


1996). We review claims of an illegal sentence for correction of errors at law.

State v Freeman, 705 N.W.2d 286, 287 (Iowa 2005).

III. Evidentiary Claim

        Foth first asserts the district court erred when it excluded evidence of

Simon’s prior allegations of domestic abuse. He argues he produced sufficient

evidence to sustain a jury determination of falsity with regard to those allegations,

pursuant to rule 5.104(b).3 Furthermore, he argues, the district court abused its

discretion when ordering that testimony concerning the prior allegations was

inadmissible under rule 5.403.

        The determination of whether to admit evidence is a two-step inquiry.

First, there must be a finding of whether the evidence is relevant, that is, whether

it has probative value and, second, whether said probative value is substantially

outweighed by the danger of unfair prejudice or confusion. See Graber v. City of

Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

        Here, the probative-value finding rests on whether the proffered evidence

sufficiently established that Simon’s previously-alleged assaults were, in fact,

false. The evidence would then be relevant for the jury to determine Simon’s

credibility.   See Millam v. State, 745 N.W.2d 719, 723 (Iowa 2008) (noting

evidence of false claims of sexual abuse is relevant to the determination of the

victim’s credibility); see also Iowa R. Evid. 5.404. Here, the offer of proof was




3
  This rule concerns relevancy conditioned on fact, and states: “When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon,
or subject to, the introduction of evidence sufficient to support a finding of the fulfillment
of the condition.” Iowa R. Evid. 5.104(b).
                                           9


made so the court could evaluate whether the accusations were false, and

therefore relevant.

       While the district court found Foth proffered sufficient evidence to allow

the jury to decide whether Simon’s past allegations were false, the court moved

to the second step, analyzing whether the proffered evidence was unfairly

prejudicial. Pursuant to Iowa Rule of Evidence 5.403, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

See also State v. Albert, 722 N.W.2d 402, 411 (Iowa 2006) (noting that testimony

regarding the victim’s prior sexual behavior was relevant to her credibility, and

that the probative value of such evidence was not substantially outweighed by

the resulting prejudice).

       Thus, if Foth established in the offer of proof that Simon had made

previous false allegations, that would be probative evidence within the meaning

of Iowa Rule of Evidence 5.404 and admissible as long as such probative value

is not substantially outweighed by unfair prejudice.4 See State v. Baker, 679

N.W.2d 7, 12 (Iowa 2004) (noting false claims of sexual abuse were admissible

to show the witness’s credibility).


4
  We do not agree with the State’s argument that Foth retained the burden of proof to
show—by a preponderance of the evidence—that the prior accusations were false. This
showing and standard of proof is a rule under Iowa’s rape-shield laws; however, there is
no equivalent to the rape-shield law with regard to domestic violence cases. See Millam,
745 N.W.2d at 723; see also Iowa R. Evid. 5.412(b). Indeed, the district court
determined Foth did not need to show falsity by a preponderance of the evidence but
rather by “some foundation.” We, however, need not definitively resolve the standard of
proof in order to review the district court’s conclusion that the proffered evidence was
more prejudicial than probative under Iowa Rule of Evidence 5.403.
                                         10


       When an offer of proof is inconclusive and the parties dispute the facts, it

triggers a mini-trial unrelated to the case currently being tried; thus, the

submission of the issue to the jury—when there was a dispute over whether

Simon’s prior accusations were false—constituted an “increased . . . danger of

jury confusion and speculation.” See United States v. Tail, 459 F.3d 854, 861

(8th Cir. 2006).

       In summarizing the evidence from the offer of proof, the district court

noted: “The prior incident is complicated, as evidenced by the length of the offer

of proof . . . . There is a strong likelihood that delving into these issues involving

Mr. Simon is going to confuse the jury.”         The record supports the court’s

conclusions. Aaron’s testimony covered a number of years during which Simon

allegedly made various false accusations of domestic abuse. Nonetheless, the

only clear incidents—as revealed by Aaron’s testimony—included a situation

where he threw a can of corn at Simon.           While the charge was eventually

dismissed, Aaron agreed to undergo a psychological evaluation and anger

management classes. Further, in the dissolution of marriage proceedings, Simon

accused Aaron of hitting her head into the car steering wheel, causing a broken

nose and concussion. This did not involve a criminal complaint nor was there

any judicial credibility finding. As the court summarized:

              I think that under [5.]404 it may be up to the jury, but the
       evidence regarding Mr. Simon’s conduct—well, the relationship
       between Mr. Simon and Ms. Simon is so complex, and the incident
       that is most relevant never resulted in any type of criminal
       investigation or any type of complaint to authorities, as near as I
       can tell from the record.
              The one incident that did result in a criminal complaint, the
       tossing of a can of corn, something did happen. I mean, that’s
       pretty clear to me, and, thus, the probative value of that evidence is
                                           11


         minimal.   In general, the general testimony that she made
         numerous complaints about domestic abuse, that’s unfair to the
         State without more specificity so we can sort it out and determine
         how relevant it is and how much time we’re going to spend talking
         about it.

         We agree.      The relationship between Aaron and Simon, as former

spouses, is complicated and acrimonious; therefore, testimony by Aaron

regarding the alleged false accusations would have confused or misled the jury

and severely delayed trial on the charge actually at issue. Consequently, the

court did not abuse its discretion when excluding any evidence concerning

Simon’s previous allegations of domestic abuse. See id.; see also United States

v. White Horse, 316 F.3d 769, 776 (8th Cir. 2003) (“[T]he trial court retains wide

discretion to exclude evidence that would result in a ‘collateral mini-trial’ because

both sides characterize the event at issue differently.”).

IV. Ineffective Assistance

         Foth next contends that trial counsel was ineffective when he failed to

argue at trial that the admission of Simon’s prior accusations was constitutionally

required, as he asserts this bore on Simon’s credibility and was therefore

exculpatory evidence. He claims counsel should have argued that exclusion of

the proffered evidence violated Foth’s confrontation and due process rights under

the United States and Iowa Constitutions.5

         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

5
    Foth does not make separate arguments under the Iowa Constitution.
                                         12

proceedings. 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 defendant’s due process and confrontation-clause rights are violated if

they are not presented with the opportunity to cross-examine the prosecution’s

witnesses. See State v. Rainsong, 807 N.W.2d 283, 289 (Iowa 2011) (noting

“the Confrontation Clause prohibits the use of testimonial hearsay evidence

unless the declarant testifies at trial or the right to confrontation is otherwise

sufficiently honored”). Procedural due process rights require a fair opportunity for

the defendant to provide evidence and argument in defense against the State’s

case. See State v. Seering, 701 N.W.2d 655, 665–66 (Iowa 2005).

       Given that Foth had ample opportunity to cross-examine Simon, his right

to confront the witnesses against him was satisfied. See Rainsong, 807 N.W.2d

at 289. Moreover, the exclusion of inadmissible evidence does not rise to the

level of a constitutional violation with regard to due process, and Foth otherwise

had ample “opportunity to be heard.”          See Seering, 701 N.W.2d at 666.

Therefore, no constitutional rights were violated when the evidence was

excluded.    Counsel is not ineffective for failing to pursue a meritless issue;

consequently, given Foth’s argument would have been rejected, the failure of trial

counsel to raise these constitutional claims does not constitute ineffective

assistance. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Thus, Foth’s

claim in this regard is without merit.
                                          13


V. Illegal Sentence

       Foth’s final argument asserts the district court imposed an illegal sentence

when it taxed attorney fees and costs associated with count two, of which he was

acquitted. Thus, he claims this portion of the court’s sentence is illegal and

should be vacated.

       When imposing its sentence, the district court ordered Foth to “pay

restitution for attorney fees pursuant to section 815.9 for any costs incurred as

certified by the public defender or the amount of $1,500.00, whichever is less”—if

he was represented by court-appointed counsel—as well as “the costs of

prosecution pursuant to section 815.13.”6

       Under Iowa Code section 910.2, the district court has the authority to

order a defendant to pay certain fees and costs associated with the prosecution

of the case. See Iowa Code § 910.2 (governing the court’s ability to order the

defendant to pay restitution “[i]n all criminal cases in which there is a plea of

guilty, verdict of guilty, or special verdict upon which a judgment of conviction is

rendered”). This may include “court costs” as well as “court-appointed attorney

fees ordered pursuant to section 815.9,” which states, “[T]the person shall be

required to reimburse the state for the total cost of legal assistance provided.”

See Iowa Code § 815.9 (emphasis added).

       Foth relies on State v. Petrie, 478 N.W.2d 620 (Iowa 1991), for the

proposition that both attorney fees and costs are attributable to the defendant

when a judgment of guilty is entered, and therefore, only the attorney fees and

6
 The court’s citation to Iowa Code section 815.13 is not the applicable statute, as this
section governs fees and costs recoverable from the defendant when the county or city
prosecutes a case. See Iowa Code § 815.13.
                                              14


costs associated with the conviction should be assessed. However, the statute

on which the Petrie court relied was amended several times since that opinion

was issued.        Specifically, Petrie cited Iowa Code section 910.2, which was

subsequently amended to refer the district court back to section 815.9 in making

its restitution assessments. See Petrie, 478 N.W.2d at 621–22; compare Iowa

Code § 910.2 (2001), with id. § 815.9. Section 815.9 was also amended in 2000,

adding language stating: “[T]he person shall be required to reimburse the state

for the total cost of legal assistance provided . . . .”7 Iowa Code § 815.9(3).

          Given this statutory framework and case law, the imposition of all the

indigent person’s attorney fees is within the court’s authority. Attorney fees are

not associated with a single charge when there is more than one count; rather,

these fees arise as a consequence of Foth’s entire defense, for both the

conviction and the charge upon which he was acquitted. See State v. Dudley,

766 N.W.2d 606, 624 (Iowa 2009) (“As an acquitted defendant, Dudley may have

been liable for the costs of his defense, but certainly not for the court costs.”).

Consequently, this portion of the sentence is not illegal.

          However, unlike the “legal assistance” fees allowed under section

815.9(3), court costs are considered restitution under Iowa Code section 910.2

(2011); consequently, costs are still governed by Petrie, and assessed only when

a “judgment of conviction is rendered.” Therefore, a defendant cannot be taxed
7
    Iowa Code section 815.9(3) (2011) provides:
         If a person is granted an appointed attorney, the person shall be required
         to reimburse the state for the total cost of legal assistance provided to the
         person pursuant to this section. “Legal assistance” as used in this section
         shall include not only the expense of the public defender or an appointed
         attorney, but also transcripts, witness fees, expenses, and any other
         goods or services required by law to be provided to an indigent person
         entitled to an appointed attorney.
                                          15

costs regarding a dismissed charge. See id. § 910.2(1). As Foth was only

convicted of one of two charges, the costs associated with his prosecution should

be proportionate, that is he should be assessed one-half of the costs.             See

Petrie, 478 N.W.2d at 622 (noting—with regard to costs—that only those “costs

attributable to the charge on which a criminal defendant is convicted should be

recoverable under a restitution plan”).8       Consequently, we vacate the costs

portion of Foth’s sentence and remand for entry of an order consistent with this

opinion.

       In all other regards, we affirm Foth’s conviction and sentence.

       CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.




8
 We further note that no distinction is made in either case law or statute between court
costs imposed pursuant to dismissed charges—that is, as in the case of Petrie, when the
defendant pled guilty to one charge and the State dismissed the others—versus when a
defendant is acquitted of a charge following trial. See Petrie, 478 N.W.2d at 621–22.
