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State v. Ary

Court of Appeals of Iowa

November 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
KENNETH OSBORNE ARY, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.

         The defendant challenges his three convictions for delivery of a controlled substance (crack cocaine).

          Thomas Hurd of Glazebrook, Greenberg & Hurd, LLP, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Israel J. Kodiaga, and Kelli Huser (until withdrawal), Assistant Attorneys General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, Presiding Judge.

         Kenneth Ary appeals his three convictions for delivery of a controlled substance (crack cocaine). He maintains the district court erred on remand when it denied his second motion for new trial. Additionally, he argues the judge on remand, who was the same judge that presided over his trial, should have granted his motion to recuse.

         I. Background Facts and Proceedings.

         In 2013, Ary was charged by trial information with three counts delivery of a controlled substance (crack cocaine).

         Following a multiple-day jury trial in June 2014, Ary was found guilty of each of the three charges. Ary stipulated to his status both as second or subsequent offender and an habitual offender. Applying the corresponding enhancements, the district court sentenced him to three consecutive twenty-one year sentences.

         Ary filed a direct appeal of his conviction, in which he challenged, among other things, the district court's denial of his motion for mistrial based upon inflammatory comments by a prospective juror during voir dire. A panel of our court determined Ary's constitutional right to an impartial jury was violated, reversed Ary's convictions, and remanded for a new trial. See State v. Ary, No. 14-1112, 2015 WL 4935612, at *9-10 (Iowa Ct. App. Aug. 19, 2015).

         Our supreme court granted the State's application for further review and ruled that Ary had not been deprived of an impartial jury. See State v. Ary, 877 N.W.2d 686, 691 (Iowa 2016). However, the supreme court determined the district court applied the wrong standard in considering Ary's motion for new trial and remanded to the district court to "apply the weight-of-the-evidence standard to rule on the motion for new trial on the ground the verdicts were contrary to the weight of the evidence." Id. at 707.

         On remand, before the district court considered Ary's motion for new trial, Ary filed a motion urging the judge on remand, who was the same judge who presided over the trial, to recuse himself. The district court denied ...


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