                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1855
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TONDALAYA BRIDGES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      Tondalaya Bridges appeals her conviction and sentence for first-degree

burglary. CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.



      Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson and Tyler J. Buller,

Assistant Attorneys General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
                                         2


DOYLE, Presiding Judge.

      In February 2017, Tondalaya Bridges forced her way into Ashley Martin’s

apartment without permission and hit Martin on the head with a bottle. The State

charged Bridges with one count of first-degree burglary. A jury found her guilty as

charged, and the court sentenced Bridges to serve an indeterminate term of

incarceration not to exceed twenty-five years. Bridges appeals.

      Bridges first alleges her trial counsel was ineffective in failing to move for a

new trial because the jury’s verdict was against the weight of the evidence. 1 We

review ineffective-assistance-of-counsel claims de novo. See Lamasters v. State,

821 N.W.2d 856, 862 (Iowa 2012). To succeed, a defendant must show counsel

breached a duty and prejudice resulted. See State v. Graves, 668 N.W.2d 860,

869 (Iowa 2003).

      A motion for new trial should be granted only in exceptional cases. See

State v. Ary, 877 N.W.2d 686, 705 (Iowa 2016). In evaluating the weight of the

evidence, the court considers whether a greater amount of credible evidence

supports the verdict than supports the alternative verdict. See id. at 706. The

weight-of-the-evidence standard

      is broader than the sufficiency-of-the-evidence standard in that it
      permits the court to consider the credibility of witnesses.
      Nonetheless, it is also more stringent than the sufficiency-of-the-
      evidence standard in that it allows the court to grant a motion for new
      trial only if more evidence supports the alternative verdict as opposed
      to the verdict rendered. The question for the court is not whether
      there was sufficient credible evidence to support the verdict rendered
      or an alternative verdict, but whether “a greater amount of credible

1Our supreme court decided recent amendments to Iowa Code section 814.7 that
prohibit consideration of ineffective-assistance-of counsel claims on direct appeal
apply only prospectively and not to cases, like this one, pending on July 1, 2019.
See State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
                                          3


       evidence” suggests the verdict rendered was a miscarriage of
       justice.

Id. (internal citations omitted).

       Bridges argues the verdict went against the weight of the evidence because

she could not form the necessary intent to commit the crime based on her

intoxication. To commit first-degree burglary, a person must have the specific

intent to commit a felony, assault, or theft.     See Iowa Code § 713.2 (2017).

Intoxication may provide a defense if it negates the specific-intent element of the

crime. See id. § 701.5. But mere drunkenness or use of intoxicants is not enough.

See State v. Guerrero Cordero, 861 N.W.2d 253, 259 (Iowa 2015), overruled on

other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708 (Iowa 2016).

The level of intoxication must render the accused incapable of forming the specific

intent to commit the crime. See id. at 261. Because there is rarely direct evidence

of intent, we may infer it from the circumstances and the defendant’s actions. See

State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006).

       During the altercation, Martin stabbed Bridges in the chest and neck. After

her transport to the hospital for treatment of injuries, Bridges’s blood alcohol level

tested at .150. And though she claims she drank alcohol laced with the ecstasy,

a screen of Bridges’s urine was negative for drugs. The emergency-room doctor

who treated Bridges testified he “was somewhat surprised” by her blood alcohol

level because he typically sees the degree of unresponsiveness exhibited by

Bridges with “a much higher level of blood alcohol.” He also testified that the

amount of blood Bridges lost from the stabbing could have contributed to the

decline in her responsiveness.         Bridges’s level of intoxication does not
                                          4


preponderate heavily against the verdict because the evidence shows she could

still form specific intent.

       Bridges’s conduct on the night in question shows she had specific intent to

commit an assault when she entered Martin’s apartment. Bridges and Martin had

fought earlier in the night. After the first fight, Bridges went to Martin’s apartment

while Martin was out and upended Martin’s belongings. When she returned to the

apartment later, Bridges overpowered Martin’s daughter to force her way inside

and hit Martin in the head with a bottle she had been holding when she entered.

See State v. Finnel, 515 N.W.2d 41, 42-43 (Iowa 1994) (finding that the

defendant’s intent to commit an assault could be inferred from evidence of his

“violent, nonconsensual entry” into another’s apartment, knowledge that the

complaining witness wanted no contact with him, prior threats of violence against

her, and assaultive actions after entry). Because a finding that Bridges had the

specific intent to commit an assault is not against the weight of the evidence,

counsel had no duty to move for new trial. See State v. Ortiz, 905 N.W.2d 174,

183 (Iowa 2017) (noting counsel has no duty to raise a meritless issue).

       Bridges also challenges her sentence because the district court ordered her

to pay court costs without first considering her reasonable ability to pay. 2 Under

Iowa Code section 910.2(1), the sentencing court must order an offender to pay


2 The State argues this challenge is premature because the plan of restitution is
not complete. We disagree. Although the supreme court has stated “[r]estitution
orders entered by the court prior to the final order are not appealable as final
orders,” State v. Albright, 925 N.W.2d 144, 161 (Iowa 2019), both of Iowa’s
appellate courts have often vacated restitution-related orders absent a final
restitution order. See State v. Moore, No. 18-1877, 2019 WL 4297255, at *5 n.3
(Iowa Ct. App. Sept. 11, 2019) (collecting cases), affirmed in part and vacated in
part on other grounds, State v. Moore, 936 N.W.2d 436, 440 (2019).
                                         5


fees and costs as restitution “to the extent that the offender is reasonably able to

pay.” See also State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019). Because the

district court ordered Bridges to pay court costs without first considering her

reasonable ability to pay as outlined in Albright, we vacate this portion of the

sentencing order and remand the matter to the district court to impose restitution

consistent with Bridges’s reasonable ability to pay. See State v. Headley, 926

N.W.2d 545, 553 (Iowa 2019).

      CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.
