                       IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0189
                                   Filed July 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAKOTA M. POLAND,
     Defendant-Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



          Dakota Poland appeals the judgment and sentence imposed on his

convictions for first-degree kidnapping, second-degree kidnapping, and willful

injury.    CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.



          Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



          Heard by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       A jury convicted Dakota Poland of first-degree kidnapping, second-degree

kidnapping, and willful injury. On appeal, Poland challenges the sufficiency of the

evidence supporting his kidnapping convictions. He also contends the sentence

imposed on his first-degree-kidnapping conviction is unconstitutional as applied to

him. Finally, Poland argues the district court erred in assessing court costs to him

without making a determination of his ability to pay.

       I. Background Facts and Proceedings.

       The events giving rise to Poland’s convictions occurred on March 10, 2016,

at the home where Poland lived with his parents and three younger sisters.

Poland, then twenty years old, was dating L.R., who was sixteen years old. L.R.

had been staying at the home for approximately one week but decided to leave

because Poland was drinking vodka. L.R. did not like being around Poland when

he was drinking alcohol because “it always turned out bad,” and she had told

Poland that if he continued to drink, she would leave him.

       L.R. grabbed her purse with her belongings from Poland’s second-floor

bedroom and was walking down the stairs when Poland emerged from the kitchen,

blocking the exit, and told L.R. to go back upstairs. When L.R. did not comply,

Poland punched her in the face and put out a cigarette on her back. Poland

grabbed L.R. by the arm and dragged her to the stairs. He then grabbed her hair

and tried to drag her up the stairs while punching her. At one point, Poland

stomped on her head. He also hit her over the head with a wall decoration. When

Poland threatened to kill her if she did not go to his bedroom, L.R. relented.

       When L.R. reached the bedroom, Poland pushed her to the floor, secured
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the door with a chain lock, and barricaded it shut with a stick. While in the

bedroom, Poland strangled L.R. and punched her about the head and face. He bit

her on both of her hands, her right cheek, the bridge of her nose, and her leg.

Poland struck her on the back with two different skateboards. He also punched

her in the head while holding a glass ashtray in his hand. After forcing L.R. to her

knees, he struck her on the back of her head and back approximately five times

with what L.R. described as a “homemade machete.”

       After the assault in the bedroom, Poland forced L.R. to the basement where

he ordered her shower. When L.R. went into the shower clothed, Poland called

her “stupid,” told her to get out, and ripped off her shirt and bra. L.R. removed her

pants and got back in the shower, which is when Poland began hitting her with a

broom stick. After Poland ordered L.R. out of the shower, he hit her with the broom,

causing her to lose her balance and fall into a pit in the floor where the shower

drained. While in the basement, Poland also hit L.R.’s legs with a pool cue, telling

her that he was going to break her kneecaps.

       After L.R. fell in the shower drain, Poland’s mother intervened to stop the

assault.   L.R. dressed, and Poland’s father drove her to the hospital.           The

emergency-room physician who treated L.R. found her visit memorable due to

“[t]he degree to which she was beaten,” with “multiple contusions, abrasions, bites,

burns all over her body.”

       The State charged Poland with first-degree kidnapping, second-degree

kidnapping, and willful injury. Following trial, a jury found Poland guilty as charged.

The district court sentenced Poland to life in prison for the first-degree kidnapping

conviction and twenty-five years in prison on the second-degree kidnapping
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conviction, ordering the sentences to be served concurrently. The court did not

impose a sentence on the willful-injury conviction because it merged with Poland’s

first-degree-kidnapping conviction. The court ordered Poland to pay court costs

but found he is not capable of paying court-appointed attorney fees because of the

length of his sentence. Poland appealed.

      II. Sufficiency of the Evidence.

      Poland challenges the sufficiency of the evidence supporting his kidnapping

convictions. Iowa Code section 710.1 (2016) provides the following definition of

the crime:

             A person commits kidnapping when the person either
      confines a person or removes a person from one place to another,
      knowing that the person who confines or removes the other person
      has neither the authority nor the consent of the other to do so;
      provided, that to constitute kidnapping the act must be accompanied
      by one or more of the following:
             1. The intent to hold such person for ransom.
             2. The intent to use such person as a shield or hostage.
             3. The intent to inflict serious injury upon such person, or to
      subject the person to a sexual abuse.
             4. The intent to secretly confine such person.
             5. The intent to interfere with the performance of any
      government function.

Poland challenges the sufficiency of the evidence concerning the element of

confinement with regard to both kidnapping convictions. He also challenges the

State’s proof on the element of torture with regard to his first-degree-kidnapping

conviction.

      A. Confinement.

      Poland first challenges the sufficiency of the evidence concerning the

element of confinement with regard to both his first- and second-degree kidnapping

convictions. We review the sufficiency of the evidence supporting a conviction for
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correction of errors at law. See State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017).

We view the record in the light most favorable to the State, drawing all reasonable

inferences that may be drawn from the record in the State’s favor. See id. In doing

so, we consider the entire record, not just the evidence supporting the verdict. See

id.

       In State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981), the Iowa Supreme Court

concluded that the confinement necessary to support a kidnapping conviction

requires more than the confinement that is “an inherent incident of commission of

[the underlying offense].”

       Although no minimum period of confinement . . . is required for
       conviction of kidnapping, the confinement . . . must definitely exceed
       that normally incidental to the commission of [the underlying
       offense].     Such confinement . . . must be more than slight,
       inconsequential, or an incident inherent in the crime of [the
       underlying offense] so that it has a significance independent from
       [the underlying offense]. Such confinement . . . may exist because it
       substantially increases the risk of harm to the victim, significantly
       lessens the risk of detection, or significantly facilitates escape
       following the consummation of the offense.

Rich, 305 N.W.2d at 745. This three-part test, known as the Rich tripartite test,

has since been used to determine whether confinement exceeded that normally

incident to the commission of the underlying crime. See, e.g., State v. Robinson,

859 N.W.2d 464, 475-78 (Iowa 2015) (discussing cases that have applied the Rich

tripartite test). The trial court followed the tripartite test by instructing the jury:

              A person is “confined” when her freedom to move about is
       substantially restricted by force, threat, or deception. The person
       may be confined either in the place where the restriction began or in
       a place to which she has been removed.
              No minimum time of confinement or distance of removal is
       required. It must be more than slight. The confinement or removal
       must have significance apart from the assault.
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             In determining whether confinement or removal exists, you
       may consider whether:
             1. The risk of harm to L.R. was substantially increased.
             2. The risk of detection was significantly reduced.
             3. Escape was made significantly easier.

       At the close of the State’s evidence, Poland moved for judgment of acquittal,

asserting the evidence is insufficient to support a finding that he confined L.R.

because any confinement was incidental to the underlying assault. The district

court denied the motion, finding that although the confinement issue was “a closer

question,” there was sufficient evidence by which a reasonable trier of fact could

find Poland confined L.R.:

       This is not a traditional kidnapping. And also we have a short period
       of time, quite honestly, for a kidnapping to occur. But as the law and
       the instructions tell us, there is no required period of time for a
       removal or confinement to be present.
              If [] Poland had stayed in the kitchen or the living room and
       assaulted [L.R.] in virtually every way that he did in this case, it
       probably would not meet the minimum requirement for a kidnapping.
       But the fact that he took her upstairs and locked the door, held her in
       that room, could be seen as a confinement or removal because it
       kept other people in the house away from [L.R]; it kept people away
       from both of them who might have, and who eventually did, intercede
       and stop the assault.

       It is clear that Poland restricted L.R.’s ability to move by force and by threat.

L.R. was intent on leaving Poland’s home, but Poland prevented her from doing so

by grabbing her by the arm and hair and attempting to pull her upstairs. In spite of

her wish to leave, L.R. went to Poland’s bedroom when he threatened to kill her.

He also secured a chain on his bedroom door and barricaded it, preventing her

from opening it enough to leave the room. Doing so allowed Poland to continue

the assault for a longer duration than was necessary to commit the underlying

offense. It prevented other family members, who were in the home during the
                                            7


assault, from intervening and stopping it, which, in turn, substantially increased the

risk of harm to L.R. Removing L.R. to the bedroom gave Poland access to

weapons, such as his machete and skateboards, thus also substantially increasing

the risk of harm to L.R.

        On this record, there is substantial evidence Poland “confined” L.R. as

necessary to support his kidnapping convictions. See State v. Mesenbrink, No.

15-0054, 2015 WL 7075826, at *4 (Iowa Ct. App. Nov. 12, 2015) (rejecting the

defendant’s argument that, because his thirty-minute confinement of S.A. was the

same amount of time he assaulted her, the confinement was incidental to the

underlying offense of willful injury causing serious injury and opining the period of

confinement was “longer than necessary to commit willful injury causing serious

injury”).

        B. Torture.

        In an ineffective-assistance-of-counsel claim, Poland also challenges the

sufficiency of the evidence concerning his first-degree-kidnapping conviction.

First-degree kidnapping occurs “when the person kidnapped, as a consequence

of the kidnapping, suffers serious injury, or is intentionally subjected to torture or

sexual abuse.” Iowa Code § 710.2. The jury was instructed that in order to find

Poland guilty of first-degree kidnapping, the State had to prove:

        1. On or about March 10, 2016, the defendant confined or removed
        L.R. from one place to another.
        2. The defendant did so with the specific intent to inflict serious injury
        upon L.R.
        3. The defendant knew he did not have the consent of L.R. to do so.
        4. As a result of the confinement or removal, L.R. was intentionally
        subjected to torture.
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       Poland moved for judgment of acquittal on the first-degree-kidnapping

charge, alleging there was no evidence L.R. suffered a serious injury because

“although [her injuries were] memorable and many, they were not life-threatening.”

The district court rejected this claim, stating:

       [A]s [] Poland is charged, it is not necessary that the State prove a
       serious injury has occurred. There are forms of willful injury and
       forms of kidnapping that would require that, but the charges that have
       been filed in this case do not require the actual occurrence of a
       serious injury but merely that the defendant had the intent to cause
       a serious injury while involved in these acts.
                And I believe that the defendant’s behavior, based upon
       the . . . unrebutted record at this time, is that a reasonable trier of fact
       could see his behavior as showing an intent to cause a serious injury
       because of the weapon used, the multiple forms of assault that were
       involved, and the length of time of the assault.

On appeal, Poland argues his trial counsel was ineffective by failing to instead

argue is insufficient evidence that he tortured L.R. See State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004) (“To preserve error on a claim of insufficient

evidence for appellate review in a criminal case, the defendant must make a

motion for judgment of acquittal at trial that identifies the specific grounds raised

on appeal.”); see also State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)

(“Ineffective-assistance-of-counsel claims are an exception to the traditional error-

preservation rules.”).

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

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Although we prefer to preserve

ineffective-assistance claims for postconviction-relief proceedings, we may resolve

such claims on direct appeal when the record is sufficient. See State v. Johnson,

784 N.W.2d 192, 198 (Iowa 2010). To prove counsel was ineffective, Poland must

show his counsel failed to perform an essential duty and this failure resulted in
                                         9

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.

Halverson, 857 N.W.2d 632, 635 (Iowa 2015). Both elements must be proved by

a preponderance of the evidence to prevail; we may affirm on appeal if either

element is lacking. See Strickland, 466 U.S. at 687. To show prejudice, Poland

“must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

      The deciding question is whether sufficient evidence supports a finding that

Poland subjected L.R. to torture; if so, his ineffective-assistance-of-counsel claim

fails because his motion for judgment of acquittal would have been meritless. See

State v. Ross, 845 N.W.2d 692, 701 (Iowa 2014) (finding counsel did not breach

an essential duty in failing to move for judgment of acquittal on the basis of

insufficient evidence because sufficient evidence supported the defendant’s

conviction and therefore the motion would have been meritless); State v. Rice, 543

N.W.2d 884, 888 (Iowa 1996) (holding counsel has no duty to make a meritless

motion). The jury was instructed, “‘Torture’ means the intentional infliction of

severe physical or mental pain.” The photographs of L.R.’s extensive injuries, her

testimony as to how the injuries were received and the “excruciating” physical pain

and mental pain she experienced, and the testimony of the emergency-room

physician and responding officers concerning L.R.’s appearance and demeanor

on the date in question provide more than ample evidence to support a finding that

Poland inflicted severe physical or mental pain on L.R.         Because sufficient
                                         10


evidence supports such a finding, counsel was not ineffective in failing to move for

judgment of acquittal on this basis.

       III. Sentence.

       Poland next challenges the sentence imposed on his first-degree-

kidnapping conviction. He argues a sentence of life in prison without parole is

illegal because it violates federal and state constitutional protections against cruel

and usual punishment.        Although we typically review challenges to illegal

sentences for correction of errors at law, we review challenges to the

constitutionality of a sentence de novo. See State v. Propps, 897 N.W.2d 91, 97

(Iowa 2017).

       We employ a three-part test to determine whether a sentence is so grossly

disproportionate to the underlying crime as to violate our constitutional protections

against cruel and unusual punishment. See State v. Wickes, 910 N.W.2d 554, 572

(Iowa 2018). First, we balance the gravity of the crime against the severity of the

sentence. See id. If this does not raise an inference of gross proportionality, no

further analysis is required. See id. If an inference is raised, we compare the

challenged sentence to sentences of other crimes in our jurisdiction and in other

jurisdictions. See id.

       First-degree kidnapping is a class “A” felony. See Iowa Code § 710.2. The

legislature has mandated that, upon conviction of a class “A” felony, the court

“commit the defendant into the custody of the director of the Iowa department of

corrections for the rest of the defendant’s life.” See Iowa Code § 902.1. Our

supreme court has considered the constitutionality of this sentence for first-degree

kidnapping and determined it does not violate prohibitions on cruel and unusual
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punishment. See State v. Nims, 357 N.W.2d 608, 610-11 (Iowa 1984) (rejecting

contention that mandatory life sentence for first-degree kidnapping is

unconstitutional as applied to the defendant); State v. Lamphere, 348 N.W.2d 212,

220-21 (Iowa 1984) (finding “no merit” in the contention that mandatory life

sentence for first-degree kidnapping is unconstitutionally disproportionate).

Likewise, Poland’s claim that he should be considered a juvenile or entitled to the

same individualized sentencing hearing as juveniles because he “was only slightly

above the arbitrary age of majority” at the time he committed the offense of first-

degree kidnapping has been expressly rejected by our supreme court. See, e.g.,

State v. Lyle, 854 N.W.2d 378, 403 (Iowa 2014). “We are not at liberty to overturn

Iowa Supreme Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa

Ct. App. 1990). Accordingly, we affirm the life sentence imposed on Poland’s first-

degree-kidnapping conviction.

      IV. Assessment of Costs.

      Iowa Code section 910.2(1) (2016) states:

              In 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, the sentencing court shall order that restitution be made
      by each offender to the victims of the offender’s criminal activities, to
      the clerk of court for fines, penalties, surcharges, and, to the extent
      that the offender is reasonably able to pay, for . . . court costs
      including correctional fees approved pursuant to section 356.7 . . . .

“Constitutionally, a court must determine a criminal defendant’s ability to pay

before entering an order requiring such defendant to pay criminal restitution

pursuant to Iowa Code section 910.2.” Goodrich v. State, 608 N.W.2d 774, 776

(Iowa 2000).
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       In entering judgment against Poland, the court ordered Poland to pay court

costs but concluded he “is not capable of paying court-appointed attorney fees

because of the length of the sentence imposed.” Poland claims the district court

erred in assessing him costs without making a determination of his reasonable

ability to pay.

       The State argues Poland has failed to exhaust his remedies because he did

not file a motion pursuant to Iowa Code section 910.7. A defendant is required to

file such a motion when the amount of restitution is not determined by the time a

notice of appeal is filed. See State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999).

Here, an order for room and board fees was filed on January 11, 2017, stating that

Poland owed $15,250.00 plus costs and setting forth a plan of payment of $20 per

month. Poland filed his notice of appeal on February 2, 2017.

       The facts here are similar to the facts of State v. Johnson, 887 N.W.2d 178,

184 (Iowa Ct. App. 2016). In Johnson, the district court determined the defendant

was able to pay $100 of his court-appointed attorney fees, but the record was silent

as to whether the court considered the defendant’s ability to pay court-ordered

court costs. See Johnson, 887 N.W.2d at 184. On appeal, this court was unable

to determine whether the district court reasonably exercised its discretion in

ordering the defendant to pay restitution for court costs. See id. Accordingly, we

vacated the portion of the sentence ordering the defendant to pay court costs and

remanded to the district court for a determination of the defendant’s ability to pay.

See id. Because the record before us is likewise silent as to whether the court

considered Poland’s ability to pay court costs, we vacate that portion of the
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sentence and remand for a determination of Poland’s reasonable ability to pay.

See id.

      CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.
