IN THE COURT OF APPEALS OF IOWA

No. 18-1179

Filed January 9, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ERIC JOHN HELLMAN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Guthrie County, Terry Rickers, 

Judge.

Eric Hellman appeals his conviction and sentence for assault causing bodily 

injury. CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K. 

Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and May and Greer, JJ.
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MAY, Judge.

A jury found Eric Hellman guilty of assault causing bodily injury. On appeal, 

he argues: (1) his trial counsel was ineffective, (2) the district court applied the 

wrong standard when deciding his motion for new trial, (3) the district court 

imposed court costs without making the required finding of his reasonable ability 

to pay, and (4) the district court’s no-contact order improperly classified his mother 

as an “intimate partner” and, as a result, improperly imposed a firearms prohibition. 

We conditionally affirm and remand with instructions. 

I. Facts and Prior Proceedings

On Saturday, June 17, 2017, Hellman went to his parents’ home. He 

wanted his mother, Cherie Hellman, to help fix his cellphone. While 

communicating with the phone company, Hellman became increasingly agitated. 

According to Cherie, she tried to sneak out of the house when Hellman 

became enraged. Hellman prevented her exit by “body checking” her into the door. 

J.H., Hellman’s daughter, fled the house. Hellman held Cherie against the door

and hit her in the mouth. She was unable to call 911 because, at some point,

Hellman had confiscated her cellphone. Eventually, Hellman released her and she 

fled toward her car. 

At about the same time, Cherie’s husband arrived at the home. J.H. ran to 

him. Meanwhile, Hellman threw Cherie’s phone into her car and shoved her inside. 

She escaped alone in her car. Once on the road, she called 911 and asked for 

assistance to be sent to her husband and J.H. 

She then headed to the police station. She was told to come back Monday 

to file a report. So Cherie, her husband, and J.H. left town for the weekend. 
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On Monday, they returned to file a police report. Deputy Sheriff Jesse 

Swensen took photographs of Cherie’s bruising and injuries. At trial, Deputy 

Sheriff Swensen opined that the injuries were consistent with Cherie’s account of 

the assault. 

When law enforcement interviewed Hellman, he relayed a different account 

of events. He told Deputy Kent Gries that he and Cherie got into an argument 

about landscaping at his home. During the argument, Cherie hit Hellman nine 

times in the face with her cane. But Deputy Gries testified he saw no visible 

injuries. And Hellman did not want to pursue any charges against Cherie. 

The State charged Hellman with assault causing bodily injury in violation of 

Iowa Code section 708.1(2) (2017). A jury found Hellman guilty as charged. The 

district court imposed a suspended sentence and entered a no-contact order. 

Hellman appeals.

II. Ineffective-Assistance-of-Counsel Claims

Hellman raises many ineffective-assistance claims.1 He first argues 

counsel was ineffective for failing to object to various out-of-court statements made 

by three different individuals. He next argues counsel was ineffective for failing to 

ask the court to admonish the jury to disregard inadmissible bad-act evidence. And 

 

1 We recognize Iowa Code section 814.7 was recently amended to provide in 

pertinent part: “An ineffective assistance of counsel claim in a criminal case shall 

be determined by filing an application for postconviction relief” and “shall not be 

decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 

140, § 31. In State v. Macke, however, our supreme court held the amendment 

“appl[ies] only prospectively and do[es] not apply to cases pending on July 1, 

2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s 

holding. We conclude, therefore, the amendment “do[es] not apply” to this case, 

which was pending on July 1, 2019. Id.
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he claims counsel was ineffective for failing to object to a jury instruction

concerning his out-of-court statements. Finally, Hellman asks this court to 

consider the cumulative effect of counsel’s errors. State v. Clay, 824 N.W.2d 488, 

500 (Iowa 2012) (“Under Iowa law, we should look to the cumulative effect of 

counsel’s errors to determine whether the defendant satisfied the prejudice prong 

of the [ineffective-assistance] test.”). 

Our review of ineffective-assistance claims is de novo. State v. Albright, 

925 N.W.2d 144, 151 (Iowa 2019). “Because ‘[i]mprovident trial strategy, 

miscalculated tactics, and mistakes in judgment do not necessarily amount to 

ineffective assistance of counsel,’ . . . postconviction proceedings are often 

necessary to discern the difference between improvident trial strategy and 

ineffective assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006) 

(citation omitted); see State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a 

lawyer is entitled to his [or her] day in court, especially when his [or her] 

professional reputation is impugned.”).

We find the record is sufficient to address Hellman’s claim regarding the 

jury instructions. Hellman contends trial counsel should have objected to an 

instruction that the jury could “consider” Hellman’s out-of-court statements “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.” 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 
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(Iowa Ct. App. Oct. 9, 2019) (collecting cases).

2

 Likewise, we reject Hellman’s jury 

instruction claim.

As for Hellman’s other claims of ineffective counsel, however, we find the 

record is insufficient for our review. So we preserve them for a future 

postconviction proceeding. 

III. Weight-of-the-Evidence Standard

Next Hellman contends the district court applied the incorrect standard 

when denying his motion for new trial. He claims the district court deferred to the 

jury’s credibility findings rather than making the credibility determination required 

under State v. Ellis, 578 N.W.2d 655 (Iowa 1998). 

“Trial courts have wide discretion in deciding motions for new trial.” Ellis, 

578 N.W.2d at 659. But where, as here, a party claims the district court failed to 

apply the proper standard, our review is for correction of errors at law. State v. 

Wells, 738 N.W.2d 214, 218 (Iowa 2007); see also Iowa R. App. P. 6.907. 

“Iowa Rule of Criminal Procedure 2.24(2)(b)(6) permits a district court to 

grant a motion for new trial when a verdict is contrary to the weight of the evidence.” 

State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “The weight-of-the-evidence 

standard requires the district court to consider whether more ‘credible evidence’ 

supports the verdict rendered than supports the alternative verdict.” Id. This 

standard differs from the sufficiency-of-the-evidence because it “requires the 

 

2 Although, to be clear, our decisions have not always been unanimous. See State 

v. Wilson, No. 18-0536, 2019 WL 6894231, at *5, (Iowa Ct. App. Dec. 18, 2019) 

(Tabor, J., concurring specially); State v. Payne, No. 17-0111, 2018 WL 1182624, 

at *11–12 (Iowa Ct. App. Aug. 15, 2018) (Tabor, J., dissenting); State v. Yenger, 

No. 17-0592, 2018 WL 3060251, at *6–7 (Iowa Ct. App. June 20, 2018) (Tabor, J., 

dissenting). 
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district court to independently ‘weigh the evidence and consider the credibility of 

witnesses.’” State v. Walden, No. 18-0209, 2019 WL 6358300, at *9 (Iowa Ct. 

App. Nov. 27, 2019) (quoting Ellis, 578 N.W.2d at 658). The district court must 

become “an independent trier of fact.” State v. Fister, No. 15-1542, 2016 WL 

6636688, at *6 (Iowa Ct. App. Nov. 9, 2016). And “[t]he district court errs by failing 

to ‘engage in any independent evaluation of the evidence or make any credibility 

determinations of the witnesses.’” Id. (citations omitted).

When ruling on Hellman’s motion for new trial, the district court stated,

The court determines that there was sufficient evidence and that the 

weight of the evidence presented by the State during the trial 

sustains the guilty verdict rendered by the jury as indicated when the 

jury was instructed. The jury has the option of believing all, some or 

none of the testimony presented by a particular witness.

It is clear to the court that the jury found the complaining 

witness’s testimony to be credible and compelling. And operating 

under the assumption that the jury found the complaining witness’s 

testimony to be credible, there is sufficient evidence to find beyond a 

reasonable doubt that assault occurred in this case that there was 

unjustified, unwanted physical contact between the defendant and 

the complaining witness, the defendant’s mother. And the 

defendant’s mother testified that she suffered pain as a result of the 

physical contact initiated by the defendant, which is sufficient to 

sustain a verdict for assault causing bodily injury. So bottom line is, 

the weight of the evidence does sustain the jury’s verdict in this case, 

and the motion for new trial will be denied.

(Emphasis added.)

This record suggests the district court deferred to the jury’s presumed 

findings regarding credibility. It does not show the court made “independent”

credibility findings. See Walden, 2019 WL 6358300, at *9. So we “vacate the 

district court’s ruling on the defendant’s motion for new trial and remand the case 

‘for the purpose of allowing the district court to rule on [Hellman’s] motion applying 

the correct weight-of-the-evidence standard.’” Fister, 2016 WL 6636688, at *6 
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(quoting State v. Curtis, No. 04-1878, 2005 WL 1398337, at *2 (Iowa Ct. App. June 

15, 2005)).

IV. Reasonable-Ability-to-Pay Determination

Hellman also argues the district court improperly ordered him to pay court 

costs without making a reasonable-ability-to-pay determination. We agree. Iowa 

Code section 910.2(1)(a)(3) provides that the district court may only order 

restitution for costs after finding the defendant has a reasonable ability to pay. See 

State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019). At sentencing, the district 

court found Hellman was “ha[d] no reasonable ability to repay the costs of court 

appointed counsel fees” but made no finding on court costs. See Iowa Code 

§ 910.2(1)(a)(4). So we vacate the restitution portion of the sentencing order.

V. No-Contact Order

Finally, we address the no-contact order entered as part of Hellman’s 

sentencing. Hellman concedes the district court had authority to enter a no-contact 

order under Iowa Code section 664.5. But the order included a specific finding 

that Hellman and his mother met the definition of intimate partners under 18 U.S.C. 

§ 921(a)(32). Hellman claims this finding is incorrect. And because the intimate 

partner definition is not satisfied, Hellman contends, the no-contact order should 

not have prohibited him from possessing firearms. The State concedes on the 

intimate partner issue and asks this court to vacate that portion of the no-contact 

order. Even so, the State notes, “[a]ccording to the trial record,” Hellman “is a felon 

and subject to section 724.26’s prohibition on weapon possession.” 

We review sentencing challenges for corrections of errors at law. State v. 

Freeman, 705 N.W.2d 286, 287 (Iowa 2005). “The court’s authority to impose 
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sentence is created by statute, and any sentence not authorized by statute is illegal 

and void.” State v. Grover, No. 14-0072, 2014 WL 7343514, at *1 (Iowa Ct. App. 

Dec. 24, 2014). This applies equally to a no-contact order entered as part of 

sentencing. State v. Hall, 740 N.W.2d 200, 202 (Iowa Ct. App. 2007).

We begin with the intimate partner issue. Under 18 U.S.C. § 921(a)(32), an 

“intimate partner” of a person refers to “the spouse of the person, a former spouse 

of the person, an individual who is a parent of a child of the person, and an 

individual who cohabitates or has cohabited with the person.” We accept the 

parties’ agreement that Hellman and Cherie are not in any of these relationships. 

So we agree with the parties that “intimate partner” portion of the no-contact order

must be vacated.

We turn next to the firearms issue. “Chapter 664A, standing alone, does 

not authorize the firearms prohibition.” Grover, 2014 WL 7343514, at *5. Without 

the intimate-partner finding, we see no basis for an order concerning firearms. 

Even assuming Hellman is a felon subject to the statutory prohibitions of Iowa 

Code section 724.26 (and we express no opinion as to whether he is), it is not 

clear that this alone would justify a no-contact order—the violation of which could 

carry its own independent penalties—limiting Hellman’s right to possess arms. 

The State cites no authority to show it would. So we find the firearms prohibition 

must be vacated.

VI. Conclusion

We vacate the district court’s ruling on the motion for a new trial and remand 

for application of the correct weight-of-the-evidence standard. We offer no opinion 

as to whether the motion should be granted or denied.
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If the district court grants the motion, Hellman’s judgment and sentence 

should be vacated, and a new trial should be granted. If, on the other hand, the 

district court denies the motion, then the judgment and sentence will stand affirmed 

except (1) we vacate the restitution portion of the sentencing order and (2) we 

vacate the “intimate partner” finding and the firearms prohibition on the no-contact 

order. So if the district court denies the motion for new trial, the court should (1)

make a reasonable-ability-to-pay determination and enter a corrected sentencing 

order and (2) enter a corrected no-contact order.

CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS.