                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1176
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JD RAY ANDERSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Julie A.

Schumacher, Judge.



      JD Anderson appeals his conviction for domestic abuse assault, third

offense. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.*

Schumacher, J., takes no part.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GAMBLE, Senior Judge.

      JD Anderson appeals his conviction for domestic abuse assault, third

offense. He argues the district court erred by admitting a 911 recording and

corresponding transcript into evidence. He also alleges he received ineffective

assistance of counsel. We affirm.

I. Facts and Prior Proceedings

      Anderson and J.H. met in their teens. After J.H. moved with her family, the

two lost touch. Over two decades later, Anderson and J.H. reconnected over

Facebook. Eventually, J.H. moved in with Anderson, and they began an intimate

relationship. But their intimate relationship ended a few months later. They

continued to reside together as roommates and agreed they would find separate

residences.

      Before they moved out of their shared residence, Anderson and J.H. met

up at a local bar. The two left on foot for their residence, separately, but around

the same time. They were within shouting distance of each other and argued on

the walk home. Once back at the residence Anderson and J.H. continued to argue.

Anderson struck J.H. several times.

      Jamica Jackson was an upstairs neighbor. Jackson’s boyfriend woke her

up due to commotion in the downstairs apartment. Jackson went down to the back

window to listen. She heard a smothered cry for help. Jackson went back upstairs,

got dressed, and went back down to the front door of the apartment. Jackson

knocked on the door. Anderson answered the door. Jackson observed J.H.

bruised, bloody, and crying. Jackson walked in and took J.H. by the hand, directing

J.H. to come with her.
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         Jackson led J.H. to her residence, and J.H. asked Jackson to get her dogs.

Jackson returned to Anderson’s residence to recover the pets and then went back

to her home. Jackson then called 911 to report the incident. Police arrived and

arrested Anderson.

         Anderson was charged with domestic abuse assault causing bodily injury—

third offense. Anderson filed a motion in limine to exclude the 911 call from trial,

arguing it qualified as inadmissible hearsay. The court reserved ruling on the

motion. The matter proceeded to jury trial. When the State sought to admit the

911 call, defense counsel objected “pursuant to [the] motion in limine.” The court

overruled the objection and admitted the 911 call into evidence.1

         The jury found Anderson guilty of domestic abuse assault—third offense, a

lesser included offense to domestic abuse assault causing bodily injury—third

offense.

         Anderson appeals challenging the admission of the 911 call and

corresponding transcript and alleges he received ineffective assistance of counsel.

II. Standard of Review

         We review the district court’s hearsay rulings for correction of errors at law.

State v. Reynolds, 746 N.W.2d 837, 841 (Iowa 2008). We review ineffective-

assistance claims de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).




1   The district also admitted the transcript of the 911 call over Anderson’s objection.
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III. Discussion

       A. Ineffective Assistance of Counsel2

       Anderson brings three independent claims of ineffective assistance and

also argues the cumulative effect of the alleged deficiencies requires relief.

Generally, ineffective-assistance claims are preserved for postconviction relief so

the record can be fully developed. Id. But when the record is adequate, the claim

may be resolved on direct appeal. Id.

       To succeed on an ineffective-assistance claim, a defendant must

demonstrate counsel failed to perform an essential duty and constitutional

prejudice resulted. State v. Walker, 935 N.W.2d 874, 881 (Iowa 2019). “Because

the test for ineffective assistance of counsel is a two-pronged test, a defendant

must show both prongs have been met.” Nguyen v. State, 878 N.W.2d 744, 754

(Iowa 2016). If a defendant cannot prove either prong, we need not address the

other. See id.

       First, Anderson argues counsel was ineffective for failing to object to the

inclusion of lesser-included-offenses in the jury instructions. He does not argue

the submitted lesser-included offenses fail to satisfy the impossibility test and were

improperly admitted.    See State v. Miller, 841 N.W.2d 583, 588 (Iowa 2014)



2 We recognize Iowa Code section 814.7 was recently amended to provide in
pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts
ch. 140, § 31. In State v. Macke, however, our supreme court held the amendment
“appl[ies] only prospectively and do[es] not apply to cases pending on July 1,
2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s
holding. We conclude, therefore, the amendment “do[es] not apply” to this case,
which was pending on July 1, 2019. Id.
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(providing an offense qualifies as a lesser-included offense if it satisfies the

impossibility test). Rather, he faults counsel for failing to object to the inclusion of

instructions for any lesser-included offense. But the district court is required to

submit lesser-included offenses to the jury when applicable. Iowa R. Crim. P.

2.6(3); see also State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988).

       Anderson recognizes Jeffries compels the inclusion of lesser-included

offenses under the strict statutory-elements approach. See 430 N.W.2d at 737.

He argues counsel was ineffective by (1) failing to recognize a Missouri case

described Iowa’s approach in Jeffries is a minority approach among states and (2)

failing to advocate for Jeffries to be overturned to preserve error on appeal. See

State v. Jackson, 433 S.W.3d 390, 419–20 (Mo. 2014) (Stith, J., writing separately)

(recognizing Iowa follows the minority approach of automatically including lesser-

included-offense instructions). But as the State highlights, there is nothing in

Iowa’s jurisprudence since Jeffries was decided to undermine it or question its

continued validity.   In fact, our supreme court reaffirmed the strict statutory-

elements test of Jeffries in Miller, 841 N.W.2d at 588.3 We conclude counsel was

not ineffective for failing to object to the obligatory inclusion of lesser-included-

offense instructions because Jeffries remains good law. See State v. Halverson,

857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does not provide

ineffective assistance if the underlying claim is meritless.”).




3To the extent Anderson asks this court to overturn Jeffries, we cannot. See State
v. Beck, 845 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not at liberty to overrule
controlling supreme court precedent.”).
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         Second, Anderson argues counsel was ineffective for failing to object to a

jury instruction that provided: “Evidence has been offered to show that the

defendant made statements at an earlier time and place. If you find any of the

statements were made, then you may consider them as part of the evidence, just

as if they had been made at this trial.” But “[t]his court has repeatedly rejected the

same challenge to the same instruction.” See State v. Lustgraaf, No. 18-0167,

2019 WL 1055838, at *1 (Iowa Ct. App. Mar. 6, 2019) (collecting cases); accord

State v. Chrzan, No.18-1327, 2019 WL 5067174, at *3 (Iowa Ct. App. Oct. 9, 2019)

(collecting cases). Accordingly, counsel was not ineffective for failing to object to

a correct statement of the law. Halverson, 857 N.W.2d at 635.

         Third, Anderson claims the 911 call and corresponding transcript would not

have been admitted had counsel brought a foundational objection to the 911 call

under the “records of regularly conducted activity” exception to the hearsay rule.

See Iowa R. Evid. 5.803(6). He argues foundation for the 911 call should have

been established through someone with knowledge of how and when the recording

was created.4 See Iowa R. Evid. 5.901; State v. Burgdorf, 861 N.W.2d 273, 276–

77 (Iowa Ct. App. 2014). The record does not provide insight as to why counsel

did not object to foundation. But counsel should be given an opportunity to provide

an explanation.     See State v. Coleman, 907 N.W.2d 124, 142 (Iowa 2018)

(recognizing counsel’s conduct may have been a strategic decision and counsel

should have an opportunity to respond to the defendant’s allegations). So we

preserve it for possible postconviction proceedings. See State v. Harris, 919



4   The State introduced the 911 call during Jackson’s testimony.
                                          7


N.W.2d 753, 754 (Iowa 2018) (“If the record is insufficient to allow for a review on

direct appeal, we do not reach the issue on direct appeal and allow the defendant

to raise the claim in a separate postconviction-relief action.”).

       Finally, Anderson argues the cumulative prejudice of his claims warrants

relief. “[I]f a claimant raises multiple claims of ineffective assistance of counsel,

the cumulative prejudice from those individual claims should be properly assessed

under the prejudice prong.” State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012).

Because we find counsel was not ineffective in two instances and preserved

Anderson’s third claim, we necessarily find he did not suffer cumulative prejudice.

       B. Admission of 911 Recording and Transcript

       Anderson claims the district court erred in admitting the 911 recording and

corresponding transcript because they contain hearsay. Hearsay is an out-of-court

statement made for the truth of the matter asserted. Iowa R. Evid. 5.801(c).

Hearsay is inadmissible unless an exception applies. Iowa R. Evid. 5.802; State

v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). So we must determine if the 911 call is

hearsay and whether an exception to the hearsay rule applies.

       We find Jackson’s statements to the operator during the call qualify under

two hearsay exceptions. First, the statements qualify under the present-sense-

impression exception. See Iowa R. Evid. 5.803(1). This exception applies to

“statement[s] describing or explaining an event or condition made while or

immediately after the declarant perceived it.”         Anderson argues Jackson’s

statement “[l]ooks like [J.H’s] husband just beat her up” cannot qualify as a present

sense impression because Jackson did not observe Anderson beat up J.H.

However, in context, Jackson’s statement, “[l]ooks like her husband just beat her
                                         8


up,” describes the event or condition Jackson perceived while she was perceiving

it. Jackson described the man she identified as JD Anderson as J.H.’s “husband.”

Jackson also said J.H. “lives down below me.” “He’s downstairs. She’s upstairs.

I just went down and got her.” Jackson described J.H’s condition, “[S]he can’t talk.

Her mouth and her eyes and everything are swollen up so bad . . . and she’s got

blood on her shirt and everything.” Jackson also said, “There’s blood in her hair,

there’s blood on her shirt and her sleeves.” Jackson’s statement described only

what she observed. J.H. looked like her husband beat her up. The remainder of

Jackson’s statements related to the details of J.H.’s appearance and the events

that unfolded as she investigated the shouting coming from Anderson and J.H.’s

residence. The 911 call was made shortly after Jackson brought J.H. into her

residence and as she observed J.H. Therefore, we find it occurred close enough

in time to amount to a present sense impression. See State v. Clemens, No.17-

1944, 2019 WL 719021, at *2 (Iowa Ct. App. Feb. 20, 2019) (upholding the

admission of 911 call under the present-sense-impression exception to the

hearsay rule).

      We also find Jackson’s statements to the operator were admissible under

the excited-utterance exception.5 This exception applies to “statement[s] relating

to a startling event or condition, made while the declarant was under the stress of

excitement that it caused.”    Iowa R. Evid. 5.803(2).      When determining if a

statement qualifies as an excited utterance, we consider:



5 The State did not advance this argument in the district court, but we may affirm
evidentiary rulings on any basis, including those not addressed below. See
DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
                                            9


         (1) the time lapse between the event and the statement, (2) the
         extent to which questioning elicited the statements that otherwise
         would not have been volunteered, (3) the age and condition of the
         declarant, (4) the characteristics of the event being described, and
         (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999).

         Jackson’s statements were made shortly after rescuing J.H. Jackson’s

statements that J.H. looked like her husband beat her up, that J.H. could not talk

because her lips and eyes were swollen, and that she had blood in her hair and on

her shirt were unprompted by the operator. The events of the evening were

startling, Jackson heard a loud disturbance and someone call for help late in the

evening. When she investigated, she found J.H. injured, crying, and covered in

blood.    She brought J.H. to her residence and relative safety.           We find the

necessary conditions met to classify Jackson’s statements to the 911 operator as

an excited utterance. See State v. Sykes, No. 18-1564, 2019 WL 5424945, at *3

(Iowa Ct. App. Oct. 23, 2019) (finding no legal error in the district court’s conclusion

that statements made in a 911 call were excepted from the rule against hearsay

as present-sense impressions and excited utterances under Iowa Rules of

Evidence 5.803(1) and (2)).

         With respect to the transcript of the 911 call, we find it is duplicative of the

911 call because it contains the same statements.             Since the 911 call was

admissible under the present sense-impression and excited-utterance exceptions

to the hearsay rule, the transcript of the 911 call is admissible as well. See Bennett

v. State, No. 03-1397, 2004 WL 1812822, at *3 (Iowa Ct. App. Aug. 11, 2004)

(“Because the underlying statements as well as the 911 call itself falls under

hearsay exceptions, the radio log, tape recording, and transcript of the call were
                                         10


all properly admitted.”). Even if the transcript amounts to hearsay, its inclusion in

the record did not prejudice Anderson. See State v. Newell, 710 N.W.2d 6, 19

(Iowa 2006) (“[E]rroneously admitted hearsay will not be considered prejudicial if

substantially the same evidence is properly in the record.”).

IV. Conclusion

       Two of Anderson’s ineffective-assistance claims are without merit. We

preserve his third ineffective-assistance claim so that the record can be further

developed. He suffered no cumulative prejudice because counsel did not perform

deficiently on the two claims addressed in this appeal. The district court properly

admitted Jackson’s statements during the 911 under the present-sense-

impression and excited-utterance exceptions to the hearsay rule. The 911 call

transcript was duplicative of the 911 call. For these reasons, we affirm.

       AFFIRMED.
