State of Iowa v. Ishmael Komeh

IN THE COURT OF APPEALS OF IOWA

No. 19-0477
Filed October 7, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ISHMAEL KOMEH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.

A defendant appeals his conviction and sentence. AFFIRMED.

Jack E. Dusthimer, Davenport, for appellant.

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

General, for appellee.

Considered by Bower, C.J., and May and Ahlers, JJ.
2

BOWER, Chief Judge.

Ishmael Komeh appeals his convictions for assault causing serious injury,

possession of a firearm as a felon, and domestic abuse assault. He claims trial

counsel provided ineffective assistance, asserts inconsistent jury verdicts should

have resulted in a new trial or dismissal of a charge, challenges the restitution

provision, and claims the sentencing court abused its discretion in imposing

consecutive sentences. We affirm.

I. Background Facts & Proceedings

On August 19, 2017, Komeh’s girlfriend ended their relationship. Komeh

went to her house, where they argued and Komeh assaulted her. Komeh then had

an altercation with one of her family members. During the fight, the combatants

struggled over a gun and the family member was shot, causing serious injury.

Komeh was charged with willful injury causing serious injury, possession of

a firearm as a felon, carrying weapons, and assault domestic abuse causing bodily

injury. At the conclusion of trial on December 7, 2018, a jury convicted Komeh of

assault causing serious injury, possession of a firearm as a felon, and domestic

abuse assault.1

At a separate habitual offender hearing, Komeh admitted to prior felony

convictions. His status as a habitual offender trebled his sentences for assault

causing serious injury and possession of a firearm as a felon from five years to

fifteen years each, with a three-year mandatory minimum. At his sentencing

hearing, the court ordered Komeh’s sentences to run consecutively.

1The jury found Komeh not guilty of carrying weapons. The assault and domestic-
abuse-assault convictions are lesser-included offenses of the charged crimes.
3

Komeh appeals his conviction and sentences. He claims (1) trial counsel

provided ineffective assistance concerning a jury instruction, (2) the jury verdicts

were inconsistent and the court should have granted Komeh a new trial, (3) the

sentencing court failed to make a determination of his reasonable ability to pay

before ordering restitution, and (4) the sentencing court abused its discretion in

imposing consecutive sentences.

II. Standards of Review

“If the record is adequate, we review [a] claim of ineffective assistance for

failing to object to the marshaling jury instruction de novo.”2 State v. Kuhse, 937

N.W.2d 622, 627 (Iowa 2020).

“The consequence of a potentially inconsistent jury verdict is a question of

law . . . .” State v. Merrett, 842 N.W.2d 266, 272 (Iowa 2014). Because the legal

consistency of the verdicts has constitutional implications, our review is de novo.

See id.; State v. Halstead, 791 N.W.2d 805, 807 (Iowa 2010).

“We review restitution orders for correction of errors at law. In doing so,

‘[w]e determine whether the court’s findings lack substantial evidentiary support,

or whether the court has not properly applied the law.’” State v. Gross, 935 N.W.2d

695, 698 (Iowa 2019) (quoting State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019)).

2 The Iowa Code no longer permits direct-appeal claims of ineffective assistance
of counsel, but this change does not apply to judgments entered before July 1,
2019. Kuhse, 937 N.W.2d at 627. Komeh’s judgment and sentence were entered
before July 1, 2019, so we are not foreclosed from considering his ineffective-
assistance claim. See id.
4

If a sentence is within the statutory limits, we review a district court’s

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015).

III. Analysis

A. Ineffective assistance of counsel. Komeh claims trial counsel was

ineffective in not objecting to the marshalling instruction on the assault charge to

request a definition of justification. “In order to support a claim of ineffective

assistance of counsel, a defendant must show (1) that counsel failed to perform

an essential duty and (2) that prejudice resulted.” Kuhse, 937 N.W.2d at 628. “We

ordinarily preserve [ineffective-assistance] claims for postconviction relief

proceedings.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “That is

particularly true where the challenged actions of counsel implicate trial tactics or

strategy which might be explained in a record fully developed to address those

issues.” Id. (citation omitted). “We will resolve the claims on direct appeal only

when the record is adequate.” Id.

Here, we preserve the ineffective-assistance claim for postconviction relief

proceedings, “where an adequate record of the claim can be developed and the

attorney charged with providing ineffective assistance may have an opportunity to

respond to defendant’s claims.” State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).

B. Inconsistent verdicts. Komeh asserts the jury’s verdicts finding him

guilty of felon in possession of a firearm and not guilty of carrying weapons are

inconsistent. “[I]nconsistent verdicts on multiple counts in the same trial do not

ordinarily taint the validity of a verdict of guilt. Such inconsistencies may result

from the jury’s exercise of its power of leniency.” State v. Fintel, 689 N.W.2d 95,
5

100–01 (Iowa 2004) (citation omitted). “If jury verdicts are to be examined for

inconsistency, the test to be applied is whether the verdict is so logically and legally

inconsistent as to be irreconcilable within the context of the case.” Id. at 101;

accord Merrett, 842 N.W.2d at 275–76.

Komeh first raised the issue of inconsistent verdicts in a post-trial motion for

new trial and judgment of acquittal despite the verdict. The district court gave a

thorough analysis on this issue at the sentencing hearing.

So first, looking at instruction No. 24 of our instructions, that
is possession of a firearm as a felon. And I agree with [defense
counsel]; we’re really only talking about element No. 1 as it pertains
to both of these counts because element No. 2 for both of these
counts were really not contested. So as we look at element No. 1 of
possession of a firearm as a felon, it requires that the defendant
knowingly possessed or had under his dominion and control a
firearm.
It’s important to note that there is a specific instruction for
possession which is instruction No. 26. A person who possesses
something is a person who has direct physical control over a thing
on his person is in actual possession of it. It’s also important to note
that possession can be sole possession, but it can also be joint
possession meaning two people could possess the same item at the
same time. Or that the person had it under their dominion and
control. And dominion and control can mean ownership or it can
mean the power or authority to manage its use.
Now, in this particular case we are aided by the fact that the
jury found Mr. Komeh guilty of assault causing serious injury. So the
guilty verdict in Count I tells us that the jury found that Mr. Komeh
was the shooter in this particular case. They found that he inflicted
the injury on [the family member victim]. For him to have inflicted
that injury on [the victim], which was a gunshot wound, that means
Mr. Komeh had to have had control of the gun.
You’ll note possession of a firearm as a felon does not require
you to own the gun. It does not require you to have control over it
for any length of time. It’s somebody who has direct physical control
over a thing on his person or has the power to manage its use. So if
we look solely at Count II, possession of a firearm as a felon, the jury
could have believed it was [the victim’s] gun and that [the victim]
brought it to the fight but that Mr. Komeh had it under his control and
in his possession when he shot [the victim]. That could be one
theory. Another theory could be that, again, it may have been [the
6

victim’s] gun but the jury found that they had joint possession over
the gun.
When we switch then to instruction No. 29 which is carrying
weapons, element 1 says the defendant was armed. And again, you
have to remember that we had a definition of what it means to go
armed, and that’s instruction No. 30. And that definition means that
the defendant would be aware of the weapon and it was in a place
where it was readily accessible to the defendant.
So again, the jury may have believed it was [the victim’s] gun
or they may just have determined that it wasn’t proven beyond a
reasonable doubt that the defendant actually brought the gun to the
fight. Just because it’s not his as far as ownership or just because
he didn’t bring the gun does not mean that he can[’t] later possess it
when he uses it to shoot [the victim]. So in looking at that, I’m not
saying that is what the jury did because I don’t think it’s in our power
or not under our authority to make a juror come in and explain why
they reached it; but when you look at the actual evidence of this
particular case, there is evidence that the jury could believe—and
obviously did believe—that Mr. Komeh was the shooter without them
having to believe that he brought the gun to the fight.
And for those reasons the court finds that it’s not an
inconsistent verdict but, rather, an example of when we tell the jury
that they are to look at each charge individually, that they are to
decide each charge individually, and that they are not to conclude
guilt or innocence on any one particular charge because they’ve
already found guilt or innocence on another charge.
This particular case is actually an example of the jury following
those instructions and holding the State to their burden of proof for
each and every element. So I don’t find based on the actual
elements and the definitions in these instructions that it is an
inconsistent verdict.

We agree with the district court’s analysis. The verdict is not irreconcilably

inconsistent, and the trial court did not err in denying Komeh’s motion for a new

trial or judgment of acquittal.

C. Reasonable ability to pay. Komeh claims the court ordered him to pay

restitution without conducting a reasonable-ability-to-pay analysis.

Iowa Code chapter 910 (2017) governs restitution. Some items of

restitution—including court costs and court-appointed attorney fees—can only be

ordered “to the extent the offender has the reasonable ability to pay.” Albright, 925
7

N.W.2d at 159 (citing Iowa Code § 910.2(1)). Where the offender does not have

the reasonable ability to pay, “the court may order community service in lieu of

restitution.” Id. “If the court cannot determine the full amount of restitution at the

time of sentencing, ‘the court shall issue a temporary order determining a

reasonable amount for restitution identified up to that time.’’’ Id. at 160 (quoting

Iowa Code § 910.3(2)).

“[A]ny temporary, permanent, or supplemental order regarding restitution is

not appealable or enforceable until the court files its final order of restitution.” Id.

at 162. The final order of restitution cannot be entered “until all items of restitution

are before the court.” Id. Once it has that information, the court makes “an

assessment as to the offender’s reasonable ability to pay.” Id.

Komeh’s sentencing order did not include enforceable amounts of

restitution, did not require immediate payment of restitution, and clearly noted the

court costs and attorney fees were subject to a reasonable-ability-to-pay

determination in the restitution plan of payment. No plan of restitution was in place

when Komeh filed his appeal. See State v. Haas, 930 N.W.2d 699, 704 (Iowa

2019) (“It does not appear there was a plan of restitution in place when Haas filed

her appeal, so ‘the court is not required to consider the offender’s reasonable

ability to pay.’” (quoting Albright, 925 N.W.2d at 161)). The order required the

reasonable-ability-to-pay analysis be completed when the restitution plan of

payment was ordered. We affirm the restitution part of the sentencing order.

D. Consecutive sentences. Komeh asserts the district court abused its

discretion in imposing consecutive sentences. He reasons that because his

sentences were enhanced due to a habitual offender finding and because his
8

actions “were of a single nature,” his sentences should have been concurrent

instead of consecutive.

“[O]ur task on appeal is not to second guess the [sentencing] decision made

by the district court, but to determine if it was unreasonable or based on untenable

grounds.”3 Seats, 865 N.W.2d at 553 (citation omitted). “In other words, the district

court did not abuse its discretion if the evidence supports the sentence.” Id.

When deciding whether to run Komeh’s sentences concurrent to or

consecutive to each other, the court discussed several considerations. The court

noted Komeh’s criminal history and that each time he had been on parole, it was

revoked and Komeh had to discharge his sentence. The court explained, “[T]he

defendant does not get to commit two very serious offenses and have the court

just say they blend and you should only be punished for one.” The court noted

Komeh’s convictions related to two separate victims, one of whom had life-

threatening injuries. The court also cited Komeh’s history of gun-involved and

violent offenses and observed his prior sentences did not appear to have

rehabilitated him or deterred him from criminal acts. The court then ordered

Komeh’s sentences run consecutive to each other.

We do not find the court’s reasoning to be unreasonable or based on

untenable grounds. The district court did not abuse its discretion in sentencing

Komeh to consecutive terms.

AFFIRMED.

3 Komeh does not cite any impermissible factors alleged to be considered or
untenable grounds for the sentence.