                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0959
                               Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN MICHAEL ANCELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



      John Ancell appeals his convictions of domestic abuse assault causing

bodily injury and possession of marijuana. AFFIRMED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Brenda J.

Gohr, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., and Mullins and Bower, JJ.
                                            2


MULLINS, Judge.

       John Ancell appeals his convictions, following a jury trial, of domestic abuse

assault causing bodily injury1 and possession of marijuana. Ancell asserts the

court erred in not granting him a new trial based upon the State’s late disclosure

of evidence, arguing that the late disclosure resulted in a violation of his rights to

due process and a fair trial. Ancell also challenges the sufficiency of the evidence

supporting the jury’s verdicts.

I.     Background Facts and Proceedings

       Upon the evidence presented at trial, a rational jury could make the

following factual findings. Ancell and K.E. met in 1997. At the time, K.E. lived in

Cedar Falls and Ancell lived in Minnesota. They initiated a friendship but they

drifted apart by the end of that year. K.E. messaged Ancell through social media

in late 2008 or early 2009, and they resumed their friendship. At that time, K.E.

had moved to Waverly and Ancell continued to have an apartment in Minnesota.

Ancell also stayed with his parents at their farm in Oskaloosa. The relationship

between Ancell and K.E. progressed to a romantic one. They began dating later

in 2009.

       For a majority of the relationship, K.E. and Ancell did not live in the same

location. In mid-2016, K.E. purchased a home in Waverly. In August, Ancell began

staying at the house. The time Ancell spent at K.E.’s house varied. He was a

musician in a band and travelled to Des Moines at least once per week for practice.




1
 The trial information and the judgment entry identify the crime as “assault domestic abuse
causing bodily injury.” The jury instructions and verdict form use “domestic abuse assault
causing bodily injury.” We will use the latter throughout this opinion.
                                        3


He would stay with friends in the Des Moines area during practice; otherwise, he

spent a majority of the week at K.E.’s house. They spent time together, and while

Ancell and K.E. did not always share a bed, the relationship was a sexual one.

Ancell had a key to the house and was free to come and go as he pleased. He

also kept clothing and personal items at the house. Ancell did not pay rent or

utilities but made home improvements and repairs.

      On the evening of May 19, 2017, Waverly police officers responded to a

possible domestic dispute at K.E.’s house. When officers arrived, they heard

raised voices from inside the residence. The officers made contact with both

Ancell and K.E., speaking with them separately. K.E. told officers that she and

Ancell had argued in the house and he prevented her from going downstairs.

Ancell also poked her forcefully in the chest. After she started screaming, he

grabbed her face by her mouth in order to quiet her. At some point, Ancell pushed

K.E. down. While K.E. was on the floor, crying and screaming, Ancell sat or leaned

on top of her with his knees on her chest. K.E. made the excuse of needing to use

the restroom, at which point Ancell permitted her to do so. Once in the restroom,

K.E. texted a friend, who then called the police. Officers noted marks on K.E.’s

shoulder and jaw and observed her chest was red. Photographs were taken of

K.E.’s neck, face, and upper-chest area.

      Ancell told police that the argument was completely verbal and never

escalated into a physical one. Both Ancell and K.E. described their relationship as

a boyfriend-girlfriend one that had lasted about eight years. Ancell gave police a

Minnesota driver’s license but told them he was “pretty much living” at K.E.’s

house.
                                         4


       Police arrested Ancell for domestic abuse assault and transported him to

the Bremer County Law Enforcement Center. Before transport, a male officer

patted Ancell down before putting him into the police car. When booked, Ancell

gave K.E.’s address as his home address. At the jail’s booking area, the arresting

officer searched Ancell’s belongings for a house key and debit card K.E. had asked

to have returned. Ancell was present and his belongings were in a tote on the

counter of the booking area. The officer asked Ancell which key was K.E.’s, and

Ancell pointed out the correct one. The officer removed K.E.’s key from Ancell’s

key ring and then located and opened Ancell’s money clip in order to find the debit

card. Ancell again verified the officer had the correct card. Once the officer found

the card, she placed all of the contents back into the clip and returned the clip to

the tote with Ancell’s belongings.

       After verifying Ancell wished to speak without an attorney present, the

officer interviewed Ancell. During the interview, Ancell offered adamant denials of

hurting K.E. in specific ways without the officer asking him about specifics. When

the officer did ask questions pertaining to K.E.’s particular accusations, such as

preventing her from leaving or grabbing her face, Ancell answered that he did not

know, could not recall, or was not sure. At the conclusion of the interview, the

officer left Ancell with a blank form to fill out if he wished to provide a voluntary

statement.

       During an inventory search by jail personnel, a small, clear baggie with a

substance was found in Ancell’s money clip. Jail personnel opened the baggie
                                             5


and, based on its odor, believed it to be marijuana.2 The arresting officer returned

to the booking area and spoke with Ancell. Ancell recognized the baggie and

acknowledged that he knew it was marijuana and was in his property. He told the

officer that he had found the baggie and intended to throw it away. Ancell was

subsequently arrested for possession.

         Ancell was charged by trial information with one count of domestic abuse

assault causing bodily injury and one count of possession of a controlled

substance—marijuana. In August, the court granted Ancell’s motion to produce,

which asked for, among other things, “statements of the Defendant,” including any

written statements in the possession of the State; “all written or recorded

statements, signed or unsigned confessions”; and “[a]ll materials known to the

State, or which may become known, . . . which is exculpatory in nature or favorable

to [Ancell].”

         The case proceeded to trial in March 2018. K.E. testified to the romantic

nature of her relationship with Ancell, with Ancell spending most of his time at her

house, though not on a consistent schedule. She also testified about the incident

between herself and Ancell. She testified that it began as a verbal argument that

escalated to a physical altercation, during which Ancell pushed her, grabbed her

face to make her look at him, poked her, threatened to break her phone, raised his

hand as if to hit her, prevented her from leaving, and pushed her down onto the

floor. While sitting on the floor, Ancell put his hand over her mouth to stop her from

crying and screaming. Ancell also pushed K.E. down to a supine position on the



2
    Laboratory tests later confirmed the substance was marijuana.
                                          6


floor and kneeled on top of her with his knees on her chest. Eventually, she was

able to retreat to the bathroom. She also testified that Ancell claimed that he had

done something to her car to prevent her from leaving.

       Ancell testified on his own behalf and reiterated that the argument between

himself and K.E. was entirely verbal and never escalated to a physical altercation.

He further testified that he did not live at K.E.’s house and did not consider it his

permanent residence.      He also denied making any statements admitting to

recognizing the baggie and its contents or admitting it was in his possession. He

contended the jailers were mistaken by believing the marijuana came from his

property, highlighting that officials had grabbed a belt out of his property container

and asked if it was his. He claimed the belt was not his and he was not wearing

clothes in which a belt could be worn.

       The arresting officer testified as to her actions on the night in question,

including when she did not discover the baggie when she searched through

Ancell’s money clip in order to find K.E.’s debit card. She identified that she was

not inventorying Ancell’s belongings and was only searching for the debit card.

She explained that she had her attention on Ancell for part of the search. She also

testified to providing Ancell a blank voluntary statement form but by the end of her

shift, it had not been returned to her. The statement was not returned to her at the

time she wrote her police report. However, at some later point, it was returned.

       Ancell’s handwritten statement reads,

               [K.E.] and I were in a verbal argument. I do not believe that
       either of us were ever physical toward each other. I certainly would
       never harm [K.E.] for she is my best friend. Despite our argument I
       care for her very much. If [i]n any way I accidentally caused any
       injury to her I am truly and deeply sorry. But it was never intentional.
                                             7


       If she caused any injury to me I’m sure she also didn’t mean to. I’m
       fine. We need to be able to be in communication for we are each
       other[’]s only friends. Truly.

       After presentation of the State’s case-in-chief, and out of the presence of

the jury, the prosecutor explained that she was under the mistaken impression that

Ancell had never returned a written statement, due in part to the arresting officer’s

report, which stated no statement had been returned to her. After the officer’s

testimony made reference to the statement, she inquired further and discovered

the statement. Once she became aware of the existence of the statement, she

promptly alerted the defense and the court. She also explained that the officer

would be available for testimony the next morning. The defense made no objection

or motion. Instead, the defense expressed gratitude for the State’s candor. The

defense then proceeded on with its witness, Ancell himself. Ancell did mention the

written statement in his testimony briefly but did not testify as to its contents. The

written statement was not published to the jury or admitted into evidence. After

Ancell’s testimony concluded, the defense rested. Neither party mentioned the

statement again, until Ancell’s post-trial motions.

       The jury returned verdicts finding Ancell guilty as charged. Post-trial, Ancell

filed motions in arrest of judgment and for a new trial. He argued the State’s late

disclosure of Ancell’s written statement was a Brady3 violation resulting in the

violation of his rights to due process and a fair trial. He further challenged the

sufficiency of the evidence the State provided to prove material elements of both


3
  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”).
                                          8


charged offenses. Following a hearing, the court denied both motions. Ancell

appealed following the imposition of sentence.

II.    Analysis

       A.     Disclosure of Evidence

       Ancell first asserts the district court erred in denying him relief on his claim

that the State violated his due process rights by failing to disclose favorable

evidence, constituting a Brady violation. He specifically argues the State failed to

disclose his voluntary written statement he completed while in jail to the defense

until the middle of trial. He contends this evidence was exculpatory and favorable

to his defense. Further, he claims the statement could have been used to impeach

witnesses and provide support to his alternative interpretation of the events of May

19, 2017. He argues the absence of the statement before trial hampered his ability

to effectively prepare for trial. The State argues Ancell waived this issue by failing

to request relief—whether a continuance, mistrial, or other relief—at the time the

evidence was disclosed.

       Ancell “was required to make timely objection to the State’s lack of

compliance.” See State v. Leto, 305 N.W.2d 482, 489 (Iowa 1981). “The grounds

of a motion for a new trial must stand or fall on exceptions taken at trial and a party

cannot in a post verdict motion amplify or add new grounds as a basis for relief.”

State v. Droste, 232 N.W.2d 483, 488 (Iowa 1975). Ancell’s objection to the late

disclosure of the statement in his post-trial motions was too late. However, Ancell

argues in the alternative that his trial counsel was ineffective in failing to object.

Finding the record adequate to consider the claim, we will proceed to the merits.
                                          9

       Ineffective-assistance-of-counsel claims are reviewed de novo. State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018).               Ancell must show “by a

preponderance of the evidence both that counsel failed an essential duty and that

the failure resulted in prejudice.” Id. (quoting State v. Schlitter, 881 N.W.2d 380,

388 (Iowa 2016)). “[C]ounsel fails his or her essential duty by ‘perform[ing] below

the standard demanded of a reasonably competent attorney.’” Id. (quoting

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)). “[W]e begin with the

presumption that the attorney performed competently” and “avoid second-

guessing and hindsight.” Ledezma, 626 N.W.2d at 142. Ancell “must demonstrate

‘that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Id. at 143 (quoting

Strickland v. Washington, 466 U.S. 668, 964 (1984)).

       “To establish a Brady violation has occurred, [Ancell] must prove by a

preponderance of the evidence ‘(1) the prosecution suppressed evidence; (2) the

evidence was favorable to the defendant; and (3) the evidence was material to the

issue of guilt.’” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (quoting

Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003)). The nondisclosure of

evidence is key to the determination of suppression, not the “good or bad faith of

the [State].” Id. “Evidence is suppressed ‘when information is discovered after

trial “which had been known to the prosecution but unknown to the defense.”’”

Harrington, 659 N.W.2d at 522 (quoting Cornell v. State, 430 N.W.2d 384, 385

(Iowa 1988)). However, “‘if the defendant either knew or should have known of the

essential facts permitting him to take advantage of the evidence,’ the evidence is

not considered ‘suppressed.’” Id. (quoting Cornell, 430 N.W.2d at 385).
                                          10


       Here, the alleged suppressed evidence is Ancell’s own written statement.

He had personal knowledge of the existence of the statement. Within the meaning

of the Brady rule, the written statement was not suppressed.              Further, the

information contained in the statement was presented to the jury through the

testimony of several witnesses. In the statement, Ancell claimed the argument

with K.E. was a verbal one and that it was never physical. Ancell testified to this

on his own behalf. Further, police officers testified that Ancell claimed throughout

the investigation that the incident between Ancell and K.E. was entirely verbal.

       Ancell is also unable to prove the statement was favorable to his defense.

“Favorability in the context of Brady means that had the prosecution disclosed the

suppressed evidence and had the defense used such evidence effectively, ‘it

[might have made] the difference between conviction and acquittal.’” Moon v.

State, 911 N.W.2d 137, 145 (Iowa 2018) (quoting United States v. Bagley, 473

U.S. 667, 676 (1985)). “The Brady rule encompasses both impeachment and

exculpatory evidence.” Id. Ancell argues that the statement could have been used

to impeach the arresting officer’s testimony by proving that a portion of her police

report was incorrect and false. The arresting officer noted in her police report that

Ancell’s voluntary statement form was never returned.            During the arresting

officer’s testimony, she testified that by the end of her shift on the night in question

and at the time she was writing her report, the written statement had not been

returned to her. However, she then explained that it was eventually returned to

her, though she did not specify when. Further, while Ancell argues the statement

would have provided support to his alternative interpretation of the events, as
                                         11


discussed above, the same information was provided through Ancell’s own

testimony and the testimony of police officers.

       Lastly, Ancell cannot prove that the statement was material. “Evidence is

material when ‘there is a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have been different.’” Harrington, 659

N.W.2d at 523 (quoting Cornell, 430 N.W.2d at 386). In determining materiality,

“the question is whether ‘the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.’”

Id. (quoting Strickler v. Greene, 527 U.S. 263, 290 (1999)).         As stated, the

information contained in the statement was presented to the jury through testimony

of other witnesses, namely Ancell himself. We cannot say the statement could

have put the case in a different light so as to undermine our confidence in the

verdict. See id. Accordingly, Ancell’s trial counsel was not ineffective as alleged.

       B.     Sufficiency of the Evidence

       Ancell also argues the court erred in denying his motion for judgment of

acquittal based upon the sufficiency of the evidence. We review sufficiency-of-

evidence challenges for correction of errors at law. State v. Ramirez, 895 N.W.2d

884, 890 (Iowa 2017). “[W]e will uphold a verdict if substantial evidence supports

it.” Id. “Evidence is considered substantial if, when viewed in the light most

favorable to the State, it can convince a rational jury that the defendant is guilty

beyond a reasonable doubt.” Id. (quoting State v. Reed, 875 N.W.2d 693, 704–05

(Iowa 2016)). “The evidence must do more than raise ‘suspicion, speculation, or

conjecture’ regarding defendant’s guilt.” State v. Randle, 555 N.W.2d 666, 671

(Iowa 1996) (quoting State v. Barnes, 204 N.W.2d 827, 829 (Iowa 1972)). “We
                                        12


consider all the record evidence, not just the evidence that supports the verdict.”

State v. Biddle, 652 N.W.2d 191, 197–98 (Iowa 2002).

             1.     Domestic Abuse Assault Causing Bodily Injury

      Ancell only challenges the State’s establishment of one element as

instructed: K.E. and Ancell were family or household members who resided

together at the time of the incident. Ancell argues that he and K.E. did not hold

themselves out as husband and wife, did not share expenses or income, and did

not share a bedroom. He contends that while he had a key to K.E.’s residence,

neither party considered the house to be Ancell’s permanent residence. Further,

Ancell contends he and K.E. were not in a romantic relationship at the time of the

incident and that the time they did spend together was limited, ranging from a few

times per week to every few weeks.

      “[W]hether two people were cohabiting is a question of fact for the jury.”

State v. Virgil, 895 N.W.2d 873, 881 (Iowa 2017). In State v. Kellogg, the supreme

court developed a list of nonexclusive factors a court or jury may use when

determining whether parties “cohabitated”:

            1. Sexual relations between the parties while sharing the
      same living quarters.
            2. Sharing of income or expenses.
            3. Joint use or ownership of property.
            4. Whether the parties hold themselves out as husband and
      wife.
            5. The continuity of the relationship.
            6. The length of the relationship.
                                          13

542 N.W.2d 514, 518 (Iowa 1996) (quoting People v. Holifield, 252 Cal. Rptr. 729,

734 (1988)). The court instructed the jury on these factors.4

       Upon the evidence presented at trial, when viewed in the light most

favorable to the State, the evidence was sufficient to support the jury’s

determination that Ancell and K.E. were cohabitating. Ancell had keys to the house

and spent the majority of his time there. He self-identified that he was “pretty much

living” at K.E.’s house. He had possession of K.E.’s debit card. Further, though

Ancell did not pay rent, he “contributed in-kind services in the way of repairs and

household duties.” See In re Marriage of Harvey, 466 N.W.2d 916, 918 (Iowa

1991).5 In sum, “The free and unlimited access that [Ancell] enjoyed to the home

of [K.E.], as well as the nature of the relationship between the parties, establish

that [K.E. and Ancell] had in fact cohabited.” Id. Accordingly, we find the record

contained substantial evidence to support the jury’s guilty verdict for domestic

abuse assault causing bodily injury.

              2.     Possession of a Controlled Substance—Marijuana

       To convict Ancell of possession of marijuana, the instructions required the

State to prove: (1) Ancell “knowingly or intentionally possessed marijuana” and (2)


4
  The court defined “family or household members as persons cohabiting with each other.”
The court further instructed:
                “Cohabiting” does not require a sexual relationship, but does
       require more than dwelling or living together in the same place. To
       determine if [Ancell] and [K.E.] were cohabiting at the time of the alleged
       offense, you may consider whether they had sexual relations while sharing
       the same living quarters; they shared income or expenses; they jointly used
       or owned property together; they held themselves out as husband and wife;
       the continuity and length of their relationship, and any other facts shown by
       the evidence bearing on their relationship with each other.
5
  Although Harvey construed the definition of cohabitation in a different context, the
supreme court has viewed it as instructive on the issue of cohabitation in the domestic-
abuse-assault context. See Kellogg, 542 N.W.2d at 517.
                                          14


Ancell “knew that the substance he possessed was marijuana.” Ancell contests

the first element, contending the State failed to provide sufficient evidence that he

had knowledge or possessed the marijuana.

       Here, multiple witnesses testified that once found, Ancell admitted he knew

the substance was marijuana and knew the marijuana was in his property. Ancell

denied making the statements and possessing the marijuana. The weight and

credibility of the testimony of witnesses is left to the jury. See State v. Allen, 348

N.W.2d 243, 247 (Iowa 1984). Upon our review, we find the record contained

substantial evidence for a rational jury to conclude Ancell knowingly or intentionally

possessed marijuana.

III.   Conclusion

       Ancell’s Brady claim fails on the merits. Accordingly, his trial counsel was

not ineffective in failing to object to the State’s late disclosure of his statement. We

also find sufficient evidence to support his convictions.       Therefore, we affirm

Ancell’s convictions for domestic abuse assault causing bodily injury and

possession of marijuana.

       AFFIRMED.
