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). 2
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. 3
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. 4
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. 5
(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-
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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). 2
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. 3
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. 4
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. 5
(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.”). 6
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.