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IN THE COURT OF APPEALS OF IOWA No. 8-411 / 07-0705 Filed August 27, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. JOSE NOEL VERDINEZ, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Amanda Potterfield, Judge.

Jose Noel Verdinez appeals his conviction following a jury trial for stalking. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Janet Lyness, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Vogel and Zimmer, JJ. Potterfield, J. takes no part.

2 ZIMMER, J. Jose Noel Verdinez appeals his conviction following a jury trial for stalking in violation of Iowa Code sections 708.11(2) and 708.11(3)(b)(1) (2005). He contends the district court erred in overruling his motion to dismiss, based upon double jeopardy and collateral estoppel principles. Verdinez further argues that his rights pursuant to the Iowa Rules of Evidence were violated as a result of the court's denial of his motion to dismiss. In addition, he asserts an ineffectiveassistance-of-counsel claim should we determine that any of the foregoing claims were not preserved for review. We affirm Verdinez's conviction and preserve his ineffective-assistance claim for possible postconviction relief proceedings. I. Background Facts and Proceedings. On January 5, 2005, Jose consented to the issuance of a protective order prohibiting him from contact with his then wife, Romelia Verdinez.1 Later, Jose stipulated he violated the protective order on May 11, 2005, by attempting to make contact with Romelia at her sister's home, and again on June 20, 2005, by telephoning Romelia. Based upon his June 20, 2005 conduct, Jose was charged with third-degree harassment, and a second protective order was entered on June 21, 2005. Jose subsequently stipulated that he violated the June 2005 protective order three times by attempting to make contact with Romelia on August 18, August 28, and November 23, 2005. Jose also stipulated he again violated the January 2005 protective order by attempting to make contact with

To avoid confusion, we will refer to the defendant and his former spouse by their first names for the remainder of this opinion.

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3 Romelia at her home on February 24, 2006. Jose was sentenced to jail time for each of the protective order violations. On March 10, 2006, the State filed a trial information charging Jose with stalking while subject to a protective order, a class "D" felony, in violation of Iowa Code sections 708.11(2) and 708.11(3)(b)(1).2 Among other things, the trial

information alleged that "on or about the spring of 2005 through February 28, 2006," while subject to a protective order, Jose followed Romelia "on numerous occasions, threatened her, used physical force and violence toward her, inducing fear in her of injury or death." Jose filed a motion to dismiss the trial information. He argued that the elevated stalking charge violated his right to be free from double jeopardy, ultimately maintaining that a conviction for a violation of a protective order is a lesser included offense of the offense of stalking. Alternatively, Jose maintained that if the protective order convictions were not lesser included offenses, res judicata or collateral estoppel barred the State's stalking charge, citing both claim and issue preclusion. Following a hearing, the district court entered its ruling denying Jose's motion to dismiss. The court found the charge of stalking while subject to a protective order did not violate Jose's right to be free from former jeopardy, because the trial information put Jose and the jury on notice that the State must prove beyond a reasonable doubt that Jose was subject to a protective order. The court further found that the violation of a protective order is not a lesser
Stalking in violation of Iowa Code section 708.11(3)(c) is an aggravated misdemeanor. The offense is elevated to a class "D" felony if the person commits stalking while subject to a protective order. Iowa Code

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