IN THE COURT OF APPEALS OF IOWA
No. 15-0569 Filed June 15, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
BRETT ANTHONY FORD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, James A.
McGlynn, Judge.
Brett Ford appeals his domestic abuse assault conviction and sentence.
JUDGMENT AFFIRMED; SENCENCE VACATED IN PART AND REMANDED
WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
VAITHESWARAN, Presiding Judge.
A jury found Brett Ford guilty of domestic abuse assault based on
evidence that he struck his wife’s knee with a metal object, hit and dragged her,
doused her with freezing liquids, and threatened her life. See Iowa Code
§§ 708.1, .2A(4) (2013). The jury found him not guilty of false imprisonment.
On appeal, Ford argues the district court (1) abused its discretion in
admitting evidence of his prior acts of violence against his wife, (2) abused its
discretion in failing to inquire into a conflict of interest with his attorney, and (3)
erred in taxing all prosecution costs to him when he was acquitted of one of the
charges.
I. Prior Acts of Violence
After the State filed a trial information, Ford filed a notice that he would
rely on the defense of self-defense. The jury was instructed on this defense and
the State’s obligation to disprove justification.
Ford also filed a motion in limine seeking to exclude prior “bad acts”
evidence. The district court reserved ruling until trial and subsequently allowed
the prosecutor to question Ford’s wife about prior acts of violence. She testified
Ford assaulted her more than once and described an assault that took place
approximately one year before the charged event. In the same vein, Ford’s
mother acknowledged he may have previously assaulted his wife. She testified
she saw her daughter-in-law’s injuries and previously helped her leave the state.
Ford contends the evidence of prior bad acts was inadmissible. See Iowa
R. Evid. 5.404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that the person acted in 3
conformity therewith.”). The State counters that the evidence was admissible to
prove intent or, alternatively, other aspects of the crime. See id. (stating such
evidence may “be admissible for other purposes, such as proof of . . . intent”).
“[W]hether evidence of prior crimes should be admitted is a judgment call
on the part of the trial court.” State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa
2001). Our review is for an abuse of discretion. Id.
“In determining whether to admit prior-bad-acts evidence, we rely on a
three-step analysis.” State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014). “A court
must first determine whether the evidence is relevant to a legitimate, disputed
factual issue.” Id. at 9. “There also ‘must be clear proof the individual against
whom the evidence is offered committed the bad act or crime.’” Id. (citation
omitted). If these requirements are satisfied, “the court must determine whether
the evidence’s ‘probative value is substantially outweighed by the danger of
unfair prejudice to the defendant.’” Id. (citation omitted).
A. Relevancy
The Iowa Supreme Court recently addressed the relevancy of prior bad
acts in domestic violence cases. See State v. Richards, ___ N.W.2d ___, ___,
2016 WL 2609526, at *10-11 (Iowa 2016). The State charged Richards with
domestic abuse assault, and he argued he acted in self-defense. Id. at *3. The
State sought to admit evidence of prior acts of violence against Richards,
contending his decision to raise self-defense placed his intent at issue. Id. The
district court admitted the evidence. Id.
On appeal, the question before the Iowa Supreme Court was whether the
“assertion of self-defense eliminated any legitimate dispute about [Richard’s] 4
intent.” Id. The court concluded “[i]ntent remains a legitimate matter of dispute
even when the defendant asserts self-defense.” Id. at *10. Accordingly, the
court found “the other acts evidence” the State sought to introduce “was relevant
to a legitimate disputed issue.” Id. at *11.
Ford’s case is virtually indistinguishable. Like Richards, he relied on self-
defense. At trial, Ford testified he “absolutely” did not strike, or attempt, or intend
to hurt his wife. Because he placed his intent at issue, we conclude the prior-
bad-acts evidence was relevant to a legitimate disputed issue.
B. Clear Proof
Clear proof should be treated as an independent prong in the prior-bad-
acts analysis. See Putman, 848 N.W.2d at 8 n.2 (concluding that despite some
confusion, “the better approach” was to treat the requirement as an independent
prong). Clear proof “need not be established beyond a reasonable doubt, and
corroboration is unnecessary.” Id. at 9. “There simply needs to be sufficient
proof to ‘prevent the jury from engaging in speculation or drawing inferences
based on mere suspicion.’” Id. (citations omitted).
This standard was satisfied. Ford’s wife testified he “beat [her] near death
because he had found out [she] had cheated on him.” See Richards, 2016 WL
2609526, at *11 (“[The victim’s] testimony constituted clear proof of the other
alleged acts under the circumstances presented here.”). She also testified her
neighbors observed one of the assaults. While the testimony of Ford’s mother
was more equivocal, she admitted seeing the injuries from a prior assault. We
conclude there was clear proof of prior assaults. 5
C. Probative Value versus Prejudicial Effect
Several factors are considered in balancing the probative force of prior-
bad-acts evidence against the danger of unfair prejudice.
[T]he court should consider the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness of the evidence on the relevant issue, and the degree to which the fact finder will be prompted to decide the case on an improper basis.
State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).
Because Ford placed his intent at issue, the prior-bad-acts evidence was
probative. On a related note, Ford and his wife proffered differing versions of
events, increasing the State’s need for the evidence. See id. at 129 (finding
need for evidence where “the defendant’s intent was ‘hotly contested’”).
The countervailing consideration was the prejudicial effect of this prior-
bad-acts evidence. In Richards, the court acknowledged “juries would probably
not like someone whom they conclude has repeatedly assaulted a significant
other.” 2016 WL 2609526, at *11. But the court pointed out that the district court
“carefully circumscribed the scope of the other acts testimony and thereby limited
its potential prejudicial impact.” Id.
The district court did the same thing here. The court refused to give the
State “blanket authority” to introduce prior-bad-acts evidence, limiting the
evidence to relatively recent episodes in “this domestic relationship.” The court
also instructed the prosecutor to use a question and answer format instead of
allowing Ford’s wife to testify in a narrative fashion. While the court did not
admonish the jury to limit its consideration of the evidence, the court well could 6
have concluded such an instruction would have highlighted rather than minimized
the general discussion of prior bad acts.
Ford concedes the prior-bad-acts evidence was nonspecific but argues
this was a ground for excluding the testimony under the clear proof prong of the
test. In our view, the State’s refusal to dwell on the potentially inflammatory
details of the prior bad acts rendered the evidence less likely to arouse the jury to
“overmastering hostility.” See State v. Reyes, 744 N.W.2d 95, 100 (Iowa 2008)
(“The evidence . . . was concise, direct, and noninflamatory, and of a nature
similar to that in the underlying charge. The evidence was not of a nature that
would have incited ‘overmastering hostility’ toward [defendant].”). Additionally,
Ford testified on direct examination that he was previously convicted of domestic
assault against his wife, minimizing the prejudicial effect of the State’s evidence.
We conclude the prejudice of the prior-bad-acts evidence did not
substantially outweigh its probative value. See Richardson, 2016 WL 2609526,
at *4 n.1 (clarifying the proper balancing test for other-acts evidence).
Accordingly, we discern no abuse of discretion in the district court’s admission of
the evidence.
II. Conflict of Interest
Several days into trial and after the State rested, Ford made a pro se
motion to continue trial. He asserted he had met with his attorney the day before
and the attorney “was dishonest . . . in telling [him] that [he did not] have the right
to proceed pro se.”
The district court concluded, and informed Ford, that his attorney gave
him accurate information about his right to represent himself. The court 7
explained this was a right that could be lost if not timely asserted and advised
Ford, “Asserting that right on the third day of trial after the State has rested, after
some of your case has already been presented, it’s too late.” The court denied
Ford’s motion to continue after characterizing the motion as “simply a delay
tactic.”
Ford contends “the district court erred in failing to thoroughly inquire into
the existence of a conflict of interest when it denied [his] request for replacement
counsel based on [his] allegation of an ethical violation.” Preliminarily, we note
that Ford’s motion was actually a motion to continue trial rather than a motion for
replacement counsel. Additionally, Ford did not argue he had a conflict of
interest with his attorney. However, the State agrees a district court has a duty to
inquire about a possible conflict of interest if the facts warrant, whether or not it is
mentioned. See State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000) (“A trial
court has the duty sua sponte to inquire into the propriety of defense counsel’s
representation when it ‘knows or reasonably should know that a particular conflict
exists.’” (citation omitted)). Accordingly, we address the merits of whether Ford
was entitled to a continuance based on a claimed conflict of interest with his
attorney resulting from alleged misinformation about his right to represent
himself.
“The court can . . . disqualify the defendant’s preferred attorney if the
circumstances present an actual conflict or a serious potential for conflict.” State
v. McKinley, 860 N.W.2d 874, 880 (Iowa 2015). An actual conflict is “a conflict of
interest that adversely affects counsel’s performance.” Id. at 881. “A serious
potential for conflict occurs when the record indicates an actual conflict is likely to 8
arise.” Id. Our review of the court’s ruling is for an abuse of discretion. Pippins
v. State, 661 N.W.2d 544, 548 (Iowa 2003) (“Whether the facts show an actual
conflict of interest or a serious potential for conflict is a matter for trial court
discretion, and we find an abuse of that discretion only when a party claiming it
shows ‘the discretion was exercised on ground or for reasons clearly untenable
or to an extent clearly unreasonable.’” (citation omitted)).
The district court did not abuse its discretion in denying Ford’s motion. As
noted, the motion was premised on Ford’s belief that he obtained incorrect
advice from his attorney concerning his ability to represent himself. As the
district court determined and informed Ford, he did not.
Ford said he spoke to his attorney about self-representation after the
second day of trial. At this juncture, a request to proceed pro se would have
been untimely. See State v. Wehr, 852 N.W.2d 495, 501 (Iowa Ct. App. 2014)
(stating request to proceed pro se made prior to the impaneling of the jury would
be timely unless the request was made for purposes of delaying the
proceedings); see also United States v. Webster, 84 F.3d 1056, 1063 n.3 (8th
Cir. 1996) (“[I]t would have been within the district court’s discretion to altogether
refuse [defendant’s] request to proceed pro se for the few hours that remained of
his trial.”); United States v. Mayes, 917 F.2d 457, 462 (10th Cir. 1990) (holding
trial court did not abuse its discretion in denying midtrial request to take over for
competent counsel); United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.
1986) (stating “the right to self-representation is unqualified only if demanded
before trial. Once trial commences, that right is subject to the trial court’s
discretion which requires a balancing of the defendant’s legitimate interests in 9
representing himself and the potential disruption and possible delay of
proceedings already in progress” and concluding court’s refusal of a midtrial
request to proceed pro se based on disruption of the trial was not an abuse of
discretion); State v. Christian, 657 N.W.2d 186, 193-94 (Minn. 2003) (concluding
for purposes of the Wesley standard, trial began at the commencement of jury
voir dire and further concluding district court did not abuse its discretion in
denying a self-representation request made on the fourth day of jury selection);
Lambert v. State, 864 So. 2d 17, 18 (Fla. Dist. Ct. App. 2003) (concluding denial
of midtrial request to discharge attorney and proceed pro se was not an abuse of
discretion under either a per se rule of untimeliness or a discretionary rule).
Accordingly, the statement of Ford’s attorney that Ford could not proceed pro se
was an honest rather than a “dishonest” answer and generated no ethical
concerns about the attorney’s candor. Necessarily, then, the statement
generated no conflict of interest between Ford and his attorney, either actual or
potential.
Because the district court asked Ford about the alleged misadvice,
determined the advice was correct, informed Ford he was not given
misinformation, and concluded Ford’s request was simply a delay tactic, we
conclude the district court did not abuse its discretion in denying Ford’s motion
for continuance.
III. Costs
As noted, the jury acquitted Ford on the false imprisonment charge.
Nonetheless, the district court taxed Ford with all “court costs related to this
case.” Ford contends “the district court entered an illegal sentence in taxing to 10
[him] all costs associated with his case, rather than limiting his liability to those
costs associated with . . . the count on which he was convicted.” We agree. See
State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (“[O]nly such fees and costs
attributable to the charge on which a criminal defendant is convicted should be
recoverable under a restitution plan.”); State v. Foth, No. 14-1250, 2016 WL
719044, at *7 (Iowa Ct. App. Feb. 24, 2016) (“[A] defendant cannot be taxed
costs regarding a dismissed charge.”). “Fees and costs not clearly associated
with any single charge should be assessed proportionally against the defendant.”
Petrie, 478 N.W.2d at 622 (“Since the defendant was only convicted on one of
three counts he should be required to pay only one-third of these costs.”); Foth,
2016 WL 719044, at *7 (“As [defendant] was only convicted of one of two
charges, the costs associated with his prosecution should be proportionate, that
is he should be assessed one-half of the costs.”). We vacate that portion of the
sentencing order assessing costs of “the case” to Ford and remand for entry of a
sentence assessing him with only those costs applicable to the domestic abuse
assault count.
JUDGMENT AFFIRMED; SENTENCE VACATED IN PART AND
REMANDED WITH DIRECTIONS.
Doyle, J., concurs in part and dissents in part; Mullins, J., concurs. 11
DOYLE, Judge. (concurring in part and dissenting in part)
I concur with the majority’s opinion regarding the prior-bad-acts and
conflicts-of-interest issues. I respectfully dissent from the majority’s opinion
regarding court costs.
Ford was convicted on count I, the domestic-abuse-assault charge, and
acquitted on count II, the false-imprisonment charge. The sentencing court
ordered Ford to “pay court costs related to this case as assessed by the Calhoun
County Clerk of Court.” Ford argues the court entered an illegal sentence when
it required him to pay the court costs in the case without specifying he was only
responsible for the costs associated with count I.1 But Ford has made no
showing that he was assessed court costs not associated with the charge for
1 We have recently seen a raft of these court-costs-associated-with-dismissed-charges cases. See, e.g., State v. Weekley, No. 15-1121, 2016 WL 3010552 at *2 (Iowa Ct. App. May 25, 2016); State v. Leatherberry, No. 15-0985, 2016 WL 3003420, at *2 (Iowa Ct. App. May 25, 2016); State v. Black, No. 14-0886, 2016 WL 3010497, at *1-2 (Iowa Ct. App. May 25, 2016); State v. Ball, No. 15-1319, 2016 WL 1697071, at *1 (Iowa Ct. App. Apr. 27, 2016); State v. Foth, No. 14-1250, 2016 WL 719044, at *6-7 (Iowa Ct. App. Feb. 24, 2016); State v. Banks, No. 15-0092, 2016 WL 541395, at *1 (Iowa Ct. App. Feb. 10, 2016); State v. Jenkins, No. 15-0589, 2015 WL 8367810, at *6-7 (Iowa Ct. App. Dec. 9, 2015); State v. Jordan, No. 14-2117, 2015 WL 8310689, at *2 (Iowa Ct. App. Dec. 9, 2015); State v. Davenport, No. 14-1735, 2015 WL 7075704, at *4-5 Iowa Ct. App. Nov. 12, 2015); State v. Weaver, No. 15-0040, 2015 WL 6509024, at *2 (Iowa Ct. App. Oct. 28, 2015); State v. Hupp, No. 15-0012, 2015 WL 5311361, at *2 (Iowa Ct. App. Sept. 10, 2015): State v. Lam, No. 14-1582, 2015 WL 4935707, at *4 (Iowa Ct. App. Aug. 19, 2015); State v. Abbasi, No. 14-1576, 2015 WL 4935705, at *2 (Iowa Ct. App. Aug. 19, 2015); State v. Newell, No. 14-1186, 2015 WL 4468856, at *3 (Iowa Ct. App. July 22, 2015); State v. Randall, No. 14-1220, 2015 WL 4158940, at *2 (Iowa Ct. App. July 9, 2015); State v. Jenkins-Wells, 14-0432, 2015 WL 3623642, at *1-2 (Iowa Ct. App. June 10, 2015); State v. Hamilton, No. 14-1426, 2015 WL 2393687, at *2 (Iowa Ct. App. May 20, 2015); State v. Busch, No. 14-1662, 2015 WL 1331878, at *1 (Iowa Ct. App. Mar. 25, 2015); State v. Hayes, No. 14-0697, 2015 WL 1055383, at *2 (Iowa Ct. App. Mar. 11, 2015); State v. Bunce, No. 14-0645, 2015 WL 799873, at *1 (Iowa Ct. App. Feb. 25, 2015); State v. Stewart, No. 13-1113, 2014 WL 3511822, at *4 (Iowa Ct. App. July 16, 2014), aff’d, 858 N.W.2d 17, 19 (Iowa 2015) (“We allow the decision of the court of appeals to stand with respect to the cost issue.”); State v. Goad, No. 13-1319, 2014 WL 2885036, at *2 (Iowa Ct. App. June 25, 2014). Many of these cases resulted in remands for corrected sentencing orders, creating much additional work for district courts. 12
which he was convicted. He merely makes the assumption he was over-
assessed because the court taxed him with all costs related to this case. On the
record before us, I am not willing to accept such an assumption.
“Criminal restitution is a creature of statute.” State v. Watson, 795 N.W.2d
94, 95 (Iowa Ct. App. 2011). A defendant is responsible for court costs
associated with the particular charge to which he pleads or is found guilty. Iowa
Code § 910.2 (2013). Additionally, Iowa Code section 910.1(4) identifies court
costs as a form of restitution. However, restitution, as defined in section
910.1(4), only applies to “criminal cases in which there is a plea of guilty, verdict
of guilty, or special verdict upon which a judgment of conviction is rendered.” Id.
§ 910.2(1). Similarly, section 815.13 authorizes the collection of costs of a
criminal prosecution from a defendant “unless the defendant is found not guilty or
the action is dismissed.” In construing these statutes, our supreme court has
made it clear “that only such fees and costs attributable to the charge on which a
criminal defendant is convicted should be recoverable.” State v. Petrie, 478
N.W.2d 620, 622 (Iowa 1991).
The clerk of court assesses court costs. In the absence of convincing
proof to the contrary, it must be presumed that the clerk of court complied with
applicable statutory and supreme court mandates regarding the assessment of
costs, properly assessed costs against Ford, and did not charge him with any
costs clearly associated with the dismissed charge. See First Trust Joint-Stock
Land Bank of Chicago v. Jansen, 251 N.W. 711, 714 (Iowa 1933) (“[I]t must be
presumed that the clerk of court in the county in which the petition was filed
performed his statutory duty, and, in the absence of convincing proof to the 13
contrary, we must presume that the clerk properly indexed the plaintiff’s
petition.”). The record before us does not demonstrate that any of the taxed
court costs are clearly attributable to the dismissed charge. Until such a showing
is made, I agree with the State that Ford’s sentence is not illegal. See Jenkins,
2015 WL 8367810, at *6-7; Davenport, 2015 WL 7075704, at *4-5.
In any event, the amount of the filing and docketing fee would have been
the same even if the State had not charged Ford with the second count. Those
costs are clearly associated with count I. The same is true for the court-reporter
fees assessed. Those fees would have been the same even if Ford had not
been charged with count II. Those costs are clearly associated with count I.
Without a showing to the contrary, the fact that a charge is dismissed, or that a
defendant is acquitted of a charge, does not automatically establish that some of
court costs in the case are not attributable to the charge or charges for which the
defendant pled guilty or was found guilty.
Ford has not established he was over-assessed with court costs.
Therefore, I see no need for a remand to reword the sentencing order. I would
affirm Ford’s sentence as it stands.
Furthermore, insofar as the majority opinion may implicate or suggest
some apportionment of costs on remand, I disagree. Petrie delineates three
categories of costs in multiple-count cases where a defendant has been
acquitted of charges or where charges have been dismissed: (1) those clearly
attributable to the charges on which the defendant is convicted, (2) those clearly
attributable to dismissed charges, and (3) those not clearly associated with any 14
single charge. Petrie, 478 N.W.2d at 622.2 Ford has made no showing that any
of the taxed court costs are not clearly attributable to any single charge or
attributed solely to the false-imprisonment charge. Therefore, an apportionment
of costs is not warranted.
2 I believe our court has misconstrued Petrie. In Foth, 2016 WL 719044, at *7, we held: “As [defendant] was only convicted of one of two charges, the costs associated with his prosecution should be proportionate, that is he should be assessed one-half of the costs.” To the extent that the Foth decision suggests Foth should have been assessed one-half of the total court costs, I believe the decision is wrong. My application of the Petrie holding would have been to assess Foth all the costs clearly attributable to the charge on which he was convicted plus one-half of the costs not clearly associated with any single charge.