HARDING v. STATE (2023)

A jury found Markus Earl Harding guilty of first-degree burglary, domestic abuse assault, domestic abuse assault while using or displaying a dangerous weapon, false imprisonment, and fourth-degree theft. Harding raised a single issue on direct appeal: whether the district court erred in admitting statements of an unavailable witness under the “forfeiture by wrongdoing” exception to the hearsay rule and the confrontation clause. See State v. Harding, No. 18-1060, 2020 WL 4497926, at *2 (Iowa Ct. App. Aug. 5, 2020). The court of appeals affirmed his convictions. Id. at *3.

Harding filed a postconviction-relief action raising several claims. The district court held an evidentiary hearing, addressed the claims on the merits, and denied them. On appeal, Harding raises entirely new claims.

First, Harding contends his attorneys on direct appeal and at the postconviction hearing were ineffective in “failing to challenge the district court's exclusion of the alleged victim's prior inconsistent statements.” The State responds that Harding failed to preserve error but acknowledges a “narrow exception that can allow an appellate court to reach the merits of an unpreserved claim on appeal if the existing record is already sufficiently developed to enable consideration and resolution.” See Goode v. State, 920 N.W.2d 520, 526–27 (Iowa 2018). The record is inadequate to address the claim.

Second, Harding claims his criminal trial attorney was ineffective in failing to make an offer of proof and in failing to object to testimony on why domestic abuse victims recant their statements. The record is also inadequate to address this claim.

We preserve the claims for “possible future litigation.” Brown v. State, No. 19-1815, 2021 WL 1661157, at *6 (Iowa Ct. App. Apr. 28, 2021); see also Karns v. State, No. 21-0758, 2022 WL 2348144, at *4 (Iowa Ct. App. June 29, 2022).

AFFIRMED.

VAITHESWARAN, Presiding Judge.