                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1583
                            Filed December 21, 2016

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERRY WAYNE CUNNINGHAM JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.



      Jerry Cunningham Jr. appeals his judgment and sentence for possession

of methamphetamine, second offense. AFFIRMED.



      Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.

Buller, Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
                                         2


VAITHESWARAN, Judge.

       The district court found Jerry Cunningham Jr. guilty of possession of

methamphetamine, second offense. On appeal, Cunningham challenges (1) the

court’s denial of his motion to dismiss the prosecution based on a speedy trial

violation and (2) the court’s denial of his motion to suppress evidence arguably

gained pursuant to a statutory nurse-patient privilege.

I.     Dismissal Motion

       The ninety-day speedy trial rule states:

       If a defendant indicted for a public offense has not waived the
       defendant’s right to a speedy trial the defendant must be brought to
       trial within 90 days after indictment is found or the court must order
       the indictment to be dismissed unless good cause to the contrary
       be shown.

Iowa R. Crim. P. 2.33(2)(b). “In determining whether there is good cause for a

delay, [reviewing courts] focus only on one factor, the reason for the delay.”

State v. Campbell, 714 N.W.2d 622, 627 (Iowa 2006). Our review is for an abuse

of discretion. Id.

       We begin with the pertinent dates for application of the ninety-day speedy

trial rule. The State filed its trial information on June 11, 2015. Cunningham

failed to appear for his arraignment on June 23, and the district court granted a

continuance to June 30. Cunningham again failed to appear on June 30, and the

district court issued a bench warrant for his arrest. The warrant was served on

July 27. Cunningham was arraigned on August 4 and demanded his right to a

speedy trial. The district court entered an order setting pretrial conference for

September 8 and a jury trial for September 22. Cunningham filed a motion to

suppress on August 25, which was scheduled for hearing on September 11. The
                                         3


district court denied the motion on September 16. A bench trial took place on

September 21.

       Cunningham did not waive his right to be tried within ninety days; the

ninetieth day to be tried fell on September 9, 2015.

       After the speedy trial deadline expired, Cunningham moved to dismiss the

trial information.   The district court denied the motion.        The court cited

Cunningham’s failure “to appear for his original arraignment” and his failure to

appear for the rescheduled arraignment and found the delays “attributable to”

Cunningham’s disappearance.

       Cunningham does not deny his unavailability. He simply argues, “Absent

evidence in the record that the State took affirmative steps to secure an earlier

trial date that would comport with the speedy trial timeline, the State failed to

meet its burden to establish good cause for the delay and the matter should have

been dismissed.” This argument is appealing at first blush because Cunningham

ultimately appeared for arraignment in time to hold trial within the speedy trial

deadline. But his lengthy absence rendered an earlier trial date impractical. See

Iowa R. Crim. P. 2.11(4) (“Motions hereunder, except motions in limine, shall be

filed when the grounds therefor reasonably appear but no later than 40 days after

arraignment.”); Campbell, 714 N.W.2d at 628 (“The decisive inquiry in these

matters should be whether events that impeded the progress of the case and

were attributable to the defendant or to some other good cause for delay served

as a matter of practical necessity to move the trial date beyond the initial ninety-

day period required by the rule.”).
                                             4


       Confronted with a virtually identical fact pattern, the Iowa Supreme Court

held just that. See State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975). In Lyles,

“[t]he county attorney’s office notified the pretrial release office on at least four

occasions . . . that defendant was to appear for arraignment.” 225 N.W.2d at

125. The defendant finally appeared one month after the trial information was

filed and was arraigned approximately two weeks later. Id. at 126. Trial was

scheduled sixty-eight days after the trial information was filed. Id. This was eight

days following the then-existing1 speedy trial deadline.             Id. at 125-26.     The

defendant moved to dismiss the case. Id. at 125. The district court denied the

motion. Id. The Iowa Supreme Court affirmed the ruling after finding that the

delays in processing the case were “attributable to the defendant, not the State.”

Id. at 126. The court continued:

       Although the State, not the defendant, has the obligation to bring a
       defendant to trial, delay attributable to the defendant may
       constitute good cause preventing the State from carrying out its
       obligation. The State’s duty to provide a defendant a speedy trial
       does not require that it play a game of hide-and-go-seek with him.

Id. The court further explained that “[a]rraginment is a prerequisite to trial, unless

waived,” the State “had a right to wait until arraignment to have a trial date set,”

and “[w]hen defendant was arraigned and entered a plea of not guilty his trial

was promptly set.” Id.

       Like the defendant in Lyles, Cunningham disappeared before he could be

arraigned.    As in Lyles, the district court reasonably concluded the delay in


1
  The case was decided under Iowa Code section 795.2 (1973), which states in pertinent
part: “If a defendant indicted for a public offense, whose trial has not been postponed
upon his application, be not brought to trial within sixty days after the indictment is found
the court must order it to be dismissed, unless good cause to the contrary is shown.”
                                          5


scheduling trial was attributable to Cunningham’s two-month absence, which

constituted good cause for setting a trial date beyond the speedy trial deadline.

Finding no abuse of discretion, we affirm the district court’s denial of

Cunningham’s motion to dismiss.

II.      Suppression Motion

         The pertinent facts underlying Cunningham’s suppression motion are as

follows.    Boone police officers found Cunningham in an alley in a “very

intoxicated” state. They transported him to a hospital, where a nurse undressed

him in preparation for a physician’s examination. The nurse found a substance in

Cunningham’s pocket that turned out to be methamphetamine. “[D]ue to hospital

policy on contraband and unknown substances,” the nurse notified police.

         Cunningham moved to suppress the evidence on the ground that it was

made available to the State in violation of a statutory nurse/patient privilege. See

Iowa Code § 622.10 (2015). The district court denied the motion, reasoning as

follows:

         The testimony established that the drugs and paraphernalia
         obtained were a result of the nurse changing the defendant’s urine
         and vomit soiled clothing to get him ready to be seen by the doctor.
         [The nurse] stated that it was not part of her duty to look for drugs
         on the defendant. The information was not obtained to enable the
         physician to treat the patient skillfully.

         Our review is on error. State v. Henneberry, 558 N.W.2d 708, 709 (Iowa

1997).     The district court’s fact findings bind us if supported by substantial

evidence. See, e.g., State v. Bower, 725 N.W.2d 435, 448 (Iowa 2006); see

also, e.g., State v. Staat, 192 N.W.2d 192, 197 (Minn. 1971) (“Whether . . .
                                              6


foundational facts have been established is a question of fact to be determined

by the trial court.”).

         Iowa Code section 622.10 prohibits certain identified individuals “who

obtain[] information by reason of” their employment from “disclos[ing] any

confidential communication properly entrusted to the person in the person’s

professional capacity, and necessary and proper to enable the person to

discharge the functions of the person’s office according to the usual course of

practice or discipline” when testifying.2 The Iowa Supreme Court has formulated

a three-part test for application of this provision: “(1) the relationship . . . ; (2) the

acquisition of the information or knowledge during this relationship; and (3) the

necessity of the information to enable the physician to treat the patient skillfully.”

Henneberry, 558 N.W.2d at 709.

         Cunningham focuses on the court’s application of the third element. He

contends that, contrary to the district court’s determination, the nurse’s discovery

of the methamphetamine would have assisted the physician in treating him.

         The State concedes the existence of an enumerated relationship. See

State v. Deases, 518 N.W.2d 784, 787 (Iowa 1994) (noting State concession to

the existence of a professional relationship and applying test to a nurse’s



2
    Section 622.10(1) provides:
                 A practicing attorney, counselor, physician, surgeon, physician
          assistant, advanced registered nurse practitioner, mental health
          professional, or the stenographer or confidential clerk of any such person,
          who obtains information by reason of the person’s employment, or a
          member of the clergy shall not be allowed, in giving testimony, to disclose
          any confidential communication properly entrusted to the person in the
          person’s professional capacity, and necessary and proper to enable the
          person to discharge the functions of the person’s office according to the
          usual course of practice or discipline.
                                        7


communication); see also Staat, 192 N.W.2d at 197 (holding “the physician-

patient privilege extends by implication to nurses or attendants who are

employees or acting under the direction of the physician examining or treating

the patient”). The State zeros in on the term “communication” as used in section

622.10, arguing: (1) “communication” under section 622.10 does not cover the

discovery of incidental items unrelated to treatment,” (2) “the interaction between

[the nurse] and [Cunningham] cannot be classified as a communication,” and (3)

“the communication [was not] necessary to the treatment.”

      “‘Communication’ . . . has been interpreted to mean ‘all knowledge and

information gained by the physician in the observation and personal examination

of the patient in the discharge of his duties.’” Henneberry, 558 N.W.2d at 709.

(citation omitted). Information contained in hospital records and blood samples

have been found to be within the scope of “communication” as used in section

622.10. See id. Under this definition, we will assume without deciding that the

nurse’s discovery of the methamphetamine was a communication, and the

interaction between the nurse and Cunningham was a communication.             That

leaves for our review whether the “communication” was necessary for treatment.

      At the suppression hearing, the nurse testified members of the medical

team “don’t necessarily look for drugs”; the doctors do “[n]ot necessarily” need to

know if drugs are found on a patient; and the physician determines how to treat

an intoxicated patient “depending on their blood tests, urine tests.” Her testimony

supported the district court’s determination that the communication was not

necessary for treatment.
                                         8


       We recognize other portions of the nurse’s testimony could have

supported a contrary determination.          However, it was the district court’s

prerogative as fact-finder to weigh the testimony as it saw fit.       See State v.

Shanahan, 712 N.W.2d 121, 131 (Iowa 2006) (“[B]ecause the district court had

the opportunity to assess the credibility of the witnesses, we do give deference to

those findings.”); Staat, 192 N.W.2d at 199 (“[W]e find adequate evidentiary

support in this record for the trial court’s conclusion that the evidence failed to

establish all essential facts to require the suppression of all testimony relating to

the confiscated bottles of narcotic drugs. We are mindful that the trial court could

have justifiably decided otherwise and barred admission of the drugs.”). We

conclude the district court did not err in overruling Cunningham’s motion to

suppress.

       We affirm Cunningham’s judgment and sentence for possession of

methamphetamine, second offense.

       AFFIRMED.
