State of Iowa v. Edward Deandre Ash

IN THE COURT OF APPEALS OF IOWA

No. 22-0012
Filed January 25, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

EDWARD DEANDRE ASH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Casey D. Jones

(Discovery Ruling) and Russell G. Keast (Trial), District Associate Judges.

A defendant appeals his conviction of domestic abuse assault causing

bodily injury. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

BADDING, Judge.

Edward Ash was convicted of domestic abuse assault causing bodily injury

after he head-butted his former girlfriend in the mouth. On appeal from that

conviction, Ash claims the district court abused its discretion in denying his pretrial

request for a subpoena to obtain the victim’s mental-health records, the evidence

is insufficient to support his conviction, and the verdict is contrary to the weight of

the evidence. We affirm.

I. Background Facts and Proceedings1

Ash and M.H. had been in a decade-long relationship when M.H. decided it

would be best if they went their separate ways. In November or December 2020,

M.H. told Ash her feelings—that she was not “invested in the relationship” anymore

and wanted to move forward on her own. But they decided to keep living together

until the lease on their apartment expired in May 2021. M.H. started sleeping alone

in one of the bedrooms, and Ash slept in the living room.

On March 12, 2021, M.H. was just waking up around 9:00 a.m. because

she did not have to go into work that day. While she was still in bed, looking at her

cell phone and watching television, Ash came in and said: “I just want to know why

you’re being like this, why are you acting like this.” He started cursing at her and

asking why she was “acting like the B word.” M.H. got up and told him, “I’m not

doing this this morning.” She tried to go to a different room, but Ash was standing

in her way with his finger in her face, pushing her head back. She started to get

upset and words were exchanged when, according to M.H., “out of nowhere he

1 We note that Ash’s appellate brief does not include a statement of facts as
required by Iowa Rule of Appellate Procedure 6.903(2)(f).
3

reared back and head-butted me in my face.” M.H. fell back and “immediately felt

pain in [her] mouth area.”

Once she got up, M.H. reached for her cell phone off the bed. But Ash

grabbed it instead and would not let her have it. M.H. gathered some of her things

and then went to get her car keys to leave, but they were gone. She found Ash

walking from the kitchen to the living room and saw her phone in his hand. She

reached for it and asked for her keys, but Ash refused and kept “snatching [the

phone] out of her reach as [she] was trying to get it.” When M.H. made a last grab

at her phone, Ash pushed her to the ground, and they started “tussling,” with M.H.

explaining: “He was holding me down as I was trying to reach up to grab my

phone.” M.H. got free after screaming for help. She left the home and sought

assistance from neighbors, who called the police.

Officer Josh Marroquin of the Cedar Rapids Police Department was the first

officer on the scene. When he arrived, he saw Ash standing in the street a couple

of houses down from where they were called. Ash approached the officer, who

asked him what had happened. Ash explained he got into an argument with M.H.,

“she ended up getting into his face, yelling at him and he ended up head-butting

her in the face.” Ash also said M.H. took a swing at him, “possibly hit or clipped

his head,” and took his debit card and other property. But Officer Marroquin did

not see any injuries on Ash, and M.H. did not have any of Ash’s property.

Officer Garry Idle arrived shortly after Officer Marroquin. When Officer Idle

spoke with M.H., “[s]he was upset in regards to what had happened that morning.”

M.H. reported she had been head-butted and thought she had a loose tooth. After

having M.H. lift her upper lip, Officer Idle observed “some swelling, bruising and
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redness.” Pictures showed she had an abrasion on the inside of her lip. When

Idle spoke with Ash, he confirmed “things had gotten physical between the two this

morning,” though by then, he was denying having head-butted M.H. According to

both officers, Ash had M.H.’s cell phone and car keys on him when they arrived.

Ash testified on his own behalf. He explained that, on the morning he was

arrested, he had wanted to go get something for breakfast but couldn’t because

his phone was gone. He asked M.H. for her phone so that he could try to find his

by calling it from M.H.’s phone. Ash gave up looking after a few minutes and then

went to get his debit card, identification, and keys. But those were missing too.

M.H. got up to help Ash look for his missing items. While they were looking, Ash

still had M.H.’s phone and saw a notification come through on it. So he began

reading through her text messages. When M.H. noticed Ash scrolling through her

phone, he said that “she got upset and she . . . runs toward me like, hey, you’re

looking through my phone.” Ash continued:

So when she come towards me, I’m at the bottom step [to the
living room]. She’s at the top step. She stumbled. I duck . . . and
when I did, I came up with my head. . . . That’s when she tried to
grab her phone. And when she’s falling, the bottom of her mouth hit
my head.

He agreed they then “tussle[d]” over the phone. But Ash denied ever pushing M.H.

in the head with his finger, intentionally head-butting her, or pushing her to the

ground. He also denied having M.H.’s car keys or cell phone when she left the

house.

Ash was charged by trial information with domestic abuse assault causing

bodily injury. Before trial, Ash applied for a subpoena for M.H.’s mental-health

records so that the court could conduct an in camera review. In support of his
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application, Ash stated he believed that M.H.’s “mental health contributed to her

behavior and statements made on or about March 12, 2021.” The State resisted,

arguing that Ash had not met the threshold requirements of Iowa Code section

622.10(4) (2021) for an in camera review of privileged records in a criminal case.

A hearing set for August 19 was continued to the next week “to allow the

defendant time to attempt to try to find some specific records.” At the hearing, the

defense simply submitted that M.H. had been diagnosed with depression after

visiting a hospital, for which she was prescribed citalopram hydrobromide; she did

follow-up visits with a nurse practitioner; and she was later prescribed alprazolam.

Based on that, the defense argued:

[W]e do believe at this point in time that we have shown that we know
that there is mental health issues at play; that we know where this is
at and we do believe at this point in time that based on looking at
the—at the documents that the court could find exculpatory evidence
that we would not be able to get without the court doing an in camera
review.

In response, the State explained the referenced hospital visit was in 2009, and the

alprazolam prescription was from a 2020 appointment, with no evidence she was

“continuously being prescribed these medications.”

The transcript shows the defense provided the court with some of M.H.’s

medical records during the hearing.2 After reviewing those records, the court found

“right off the chute things from 2009 or 2010 . . . are way too distant in time to have

any relevant information in this case for possible exculpatory.” The court then

questioned the defense as to whether alprazolam was a medication for mental-

2They were not made part of the record, and the district court expressed concern
as to how Ash obtained them.
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health issues; the defense was not sure. So, assuming it was, the court found Ash

failed to “advance some good faith factual basis indicating how the records are

relevant to [his] innocence.” In response to that conclusion, the defense

contended: “[W]e’re saying that the defendant is innocent . . . because of [M.H.’s]

mental health issues that she gets herself worked up and she charges these things

or goes after the defendant, saying that certain things happen when they did not.”

As its only example, the defense said that when Ash and M.H. were living together,

Ash “could not keep knives in the home because she would believe that . . . he

was doing certain things and she would go after him with the knives.”

The court stood by its position that Ash failed to establish the records would

be relevant to his innocence. In its written ruling, the court found Ash did not show

a reasonable probability that the victim’s records—if any existed—would contain

exculpatory information, or that Ash had a compelling need for the information.

The court also noted it had “serious reservations about whether this request was

made in good faith.”

The matter proceeded to a jury trial, and Ash was found guilty as charged.3

Ash filed a generic motion for a new trial, passively asserting the verdict was

contrary to the law and evidence. The motion was considered at the time of

sentencing, and Ash simply argued his version of the events was more credible

than M.H.’s. The court denied the motion, and Ash appealed following the

imposition of sentence.

3 The court denied Ash’s motion for judgment of acquittal following the State’s
case-in-chief and renewal of the motion following the close of evidence.
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II. Standards of Review

Discovery rulings are generally reviewed for an abuse of discretion, but if

they present constitutional issues, they are reviewed de novo. State v.

Leedom, 938 N.W.2d 177, 185 (Iowa 2020). Challenges to the sufficiency of

evidence are reviewed for legal error, State v. Crawford, 974 N.W.2d 510, 516

(Iowa 2022), while the denial of a motion for a new trial claiming the verdict was

contrary to the weight of the evidence is reviewed for an abuse of discretion. State

v. Veal, 930 N.W.2d 319, 328 (Iowa 2019).

III. Analysis

A. Subpoena

Ash argues “the district court abused its discretion in denying the application

for subpoena.” He claims that he “demonstrated a substantial likelihood that the

victim’s medical records would contain exculpatory evidence regarding her ability

to perceive and accurately remember events.”

As the supreme court recently stated:

Iowa Code section 622.10 generally prevents a mental health
professional from disclosing “any confidential communication
properly entrusted to the person in the person’s professional
capacity” associated with the patient’s treatment. The statute
specifically forbids disclosing these records to a defendant in a
criminal action, with two exceptions.

State v. Retterath, 974 N.W.2d 93, 98 (Iowa 2022) (internal citation omitted). Our

focus is on the second exception,4 which “requires the defendant to demonstrate

a ‘reasonable probability’ that the records are ‘likely to contain exculpatory

4“The first exception requires a showing that the holder of the privilege voluntarily
waived the confidentiality privilege.” Ratterath, 974 N.W.2d at 98 (citing Iowa Code
§ 622.10(4)(a)(1)). There is no claim that M.H. waived her privilege.
8

information that is not available from any other source and for which there is a

compelling need for the defendant to present a defense in the case.’” Id. at 98–99

(quoting Iowa Code § 622.10(4)(a)(2)(a)). The defendant has to meet this

threshold showing before the court must conduct an in camera review to determine

whether the records contain exculpatory information. Id.

Ash argues he met his burden. He contends “there were indications that

the victim may have made up the alleged assault due to her mental health

conditions” and, as a result, “[t]here was sufficient evidence that the victim’s

medical records might contain exculpatory evidence.”

The problem is that the term “reasonable probability” means “a substantial,

not just conceivable, likelihood.” State v. Thompson, 836 N.W.2d 470, 484

(Iowa 2013) (cleaned up). And the term “likely” means “probable or reasonably to

be expected.” Id. (cleaned up). Here, Ash offered only a generalized belief that

M.H.’s “mental health contributed to her behavior and statements made on or

about March 12, 2021.” Accord State v. Garcia, No. 20-0227, 2021 WL 210744,

at *4 (Iowa Ct. App. Jan. 21, 2021) (finding a “generalized hope, rather than a

reasonable probability,” that a child’s mental-health records would contain

exculpatory information insufficient for in-camera review); State v. Tyson, No. 13-

0272, 2014 WL 2346237, at *5 (Iowa Ct. App. May 29, 2014) (concluding a claim

that a “possible side effect of a drug” the victim was prescribed “may have affected”

his credibility does not meet the threshold requirement). He did not offer any

“evidence showing a nexus between the issues at trial and the mental health

treatment received by” M.H.—her decade-old diagnosis of depression and 2020

prescription for alprazolam, which he explains on appeal is prescribed for anxiety.
9

Thompson, 836 N.W.2d at 490. Nor was this a case that hinged on M.H.’s

credibility, given Ash’s admissions to the investigating officers and other

corroborating evidence, like M.H.’s injury and the fact that, as M.H. claimed, Ash

had her cell phone and keys on him when the officers arrived. Cf. Leedom, 938

N.W.2d at 188 (finding that the court abused its discretion in failing to conduct an

in-camera review where the State “lack[ed] corroborating physical evidence of

sexual abuse, and its case hinged on [the victim’s] credibility”).

“While our supreme court has encouraged ‘judges in close cases to

examine the records in camera,’ this is not a close case.” Garcia, 2021

WL 210744, at *4 (quoting Leedom, 938 N.W.2d at 188). Instead, this was an

attempt to embark on a “fishing expedition in [M.H.’s] mental health records,” which

we do not allow. Thompson, 836 N.W.2d at 491. We conclude the “court correctly

ruled [Ash] failed to make the showing required for an in camera inspection under

section 622.10(4).” Id.

B. Sufficiency of Evidence

For his next claim, Ash argues “there was insufficient evidence regarding

the specific intent element of the offense.” A verdict will be upheld if substantial

evidence supports it. State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018).

“Evidence is substantial if, ‘when viewed in the light most favorable to the State, it

can convince a rational [factfinder] that the defendant is guilty beyond a reasonable

doubt.’” Id. (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)).

Evidence is not insubstantial just because it might support a different conclusion;

the only question is whether the evidence supports the finding actually made. See

State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021).
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In challenging specific intent, Ash relies solely on his testimony “that the

injury to the victim was not caused intentionally” and his denial of head-butting

M.H. when he spoke with Officer Idle. But in reviewing the sufficiency of the

evidence, all evidence is considered, not just that of an inculpatory nature. See

State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017). Ash ignores M.H.’s testimony

that he reared back and head-butted her during a confrontational situation. See

State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003) (“[D]efendants will ordinarily be

viewed as intending the natural and probable consequences that ordinarily follow

from their voluntary acts.”); State v. Chatterson, 259 N.W.2d 766, 769–70 (Iowa

1977) (noting “intent is seldom capable of direct proof, but may be shown by

reasonable inferences drawn from the facts established”). The jury was provided

with two versions of the events. It is within their province, not ours, “to resolve

conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence.” State v. Musser, 721

N.W.2d 758, 761 (Iowa 2006) (citation omitted).

Because a “jury is free to believe or disbelieve any testimony as it chooses

and to give as much weight to the evidence as, in its judgment, such evidence

should receive,” we reject Ash’s sufficiency challenge. State v. Liggins, 557

N.W.2d 263, 269 (Iowa 1996); accord State v. Mathis, 971 N.W.2d 514, 519 (Iowa

2022) (“Regardless, all of these disputed fact issues were for the jury to resolve,

and they did resolve them, adverse to Mathis. Appellate review of the jury’s verdict

is not the trial redux.); State v. Huntley, No. 21-1244, 2022 WL 17481315, at *5

(Iowa Ct. App. Dec. 7, 2022) (rejecting sufficiency-of-the-evidence claim that was
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based almost entirely on defendant’s testimony and mostly consisted of attacks on

the victim’s credibility).

C. Weight of Evidence

Lastly, Ash mentions “[t]he verdict was against the weight of the evidence

regarding the specific intent element of the offense.”

The district court may grant a defendant’s motion for a new trial when the

verdict is contrary to the weight of the evidence. Iowa R. Crim. P. 2.24(2)(b)(6);

State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “A verdict is contrary to the weight

of the evidence only when ‘a greater amount of credible evidence supports one

side of an issue or cause than the other.’” Ary, 877 N.W.2d at 706 (quoting State

v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)). This assessment “is broader

than the sufficiency-of-the-evidence standard in that it permits the court to consider

the credibility of witnesses.” Id. But “it is also more stringent than the sufficiency-

of-the-evidence standard in that it allows the court to grant a motion for a new trial

only if more evidence supports the alternative verdict as opposed to the verdict

rendered.” Id.

The district court concluded, having “viewed the trial in its entirety,” that

there was no basis to grant the motion for a new trial.5 We agree “[t]his is not an

extraordinary case where the evidence preponderates heavily against the verdict.”

State v. Linderman, 958 N.W.2d 211, 223 (Iowa Ct. App. 2021). More credible

5 We note the court’s oral ruling has the flavor of a sufficiency challenge—having
referenced “substantial evidence”—rather than a weight challenge. Applying the
wrong standard could be grounds for reversal and a remand to apply the correct
standard, see, e.g., State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998), but Ash does
not raise that complaint on appeal.
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evidence supports M.H.’s version of the events. Her testimony tracked what she

reported to law enforcement at the scene. While Ash testified it was an accident

resulting from him snooping through M.H.’s phone, he admitted to the officers that

it got physical and told one that he head butted M.H. We find no abuse of discretion

in the court’s denial of Ash’s motion for new trial on weight-of-the-evidence

grounds.

IV. Conclusion

We affirm Ash’s conviction, concluding he failed to meet his burden as to

his application for a subpoena, his conviction enjoys substantial evidentiary

support, and the court did not abuse its discretion in denying his motion for a new

trial.

AFFIRMED.