               IN THE SUPREME COURT OF IOWA
                            No. 106 /05-0933

                         Filed December 22, 2006

STATE OF IOWA,

       Appellee,

vs.

BRADLEY HOWARD BOWER,

       Appellant.




       Appeal from the Iowa District Court for Cedar County, J. Hobart

Darbyshire, Judge.



       Defendant appeals his conviction for harassment of a public

officer.    JUDGMENT      OF    CONVICTION      AFFIRMED,   SENTENCE

VACATED, CASE REMANDED WITH DIRECTIONS.



       Gregg A. Geerdes, Iowa City, for appellant.


       Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Lee W. Beine, County Attorney, and Jeffrey L.

Renander, Assistant County Attorney, for appellee.
                                    2

WIGGINS, Justice.

      A magistrate found Bradley Howard Bower guilty of harassment of

a public officer.   On appeal, the district court, sitting as an appeals

judge, affirmed the conviction and imposed a harsher sentence than that

imposed by the magistrate.     In this appeal, Bower claims Iowa Code

section 718.4 (2003) is unconstitutional and there is not substantial

evidence to support his conviction. Our review of the record indicates

Iowa Code section 718.4 is constitutional and there is substantial

evidence to support his conviction. Therefore, we affirm his conviction.

      Bower further asserts it is impermissible for the district court to

increase his sentence following his unsuccessful non-de novo appeal.

Because we agree the district court’s imposition of a harsher sentence

violates Bower’s due process rights, we vacate the sentence of the district

court and remand the case for the district court to enter judgment for the

same sentence imposed by the magistrate.

      I. Facts.

      On our de novo review of the facts, we find around 2:30 a.m. on

November 28, 2004, West Branch police officer Jonathan Kolosik

observed a red pickup truck driving the wrong way on a one-way street.
Not knowing where the truck was going, Kolosik drove on the street in

the proper direction in an attempt to head the truck off. By the time

Kolosik noticed the truck again, it was parked in the driveway of Kyle

Coleman’s residence, which is a few houses away from Bower’s home or

roughly one city block.     When Kolosik saw the truck in Coleman’s

driveway, he also observed two people kneeling in front of the truck.

Kolosik pulled over in front of the Coleman residence and the two people

came over to him.     Kolosik identified the two as Coleman and Jerrod

Rummells. Kolosik recognized the truck as belonging to Rummells.
                                       3

      When speaking to Rummells, Kolosik noticed a faint smell of

alcohol on him. He also saw Rummells had some marks on his hands,

consistent with being in a fight. At the time of the stop, Kolosik knew a

fight had occurred at a bar in a nearby community.

      About ten minutes after Kolosik began talking to Rummells and

Coleman, Bower walked toward the scene from his home. Kolosik, who

was inside his squad vehicle at the time, exited the vehicle as soon as

Bower approached.

      Kolosik characterized Bower’s demeanor as threatening, irate,

agitated, and very angry. Kolosik testified that Bower told him “to get out

of [his] area” and Kolosik “wasn’t supposed to be there.” He also testified

Bower said he was “going to sue [Kolosik’s] ass,” and he “owned

[Kolosik]” and “paid [Kolosik’s] salary.”

      Kolosik testified he asked Bower repeatedly to leave and told him

the situation did not concern him. Instead of leaving or maintaining his

position some distance from Kolosik, Bower continued to move closer. At

one point during the encounter, Bower was close enough for Kolosik to

smell a faint odor of alcohol on Bower. At this point, Kolosik called for

backup. Seeing that the situation was escalating, Rummells intervened
in the confrontation. Kolosik told Rummells to explain the situation to

Bower. Rummells eventually pulled Bower away from Kolosik’s personal

space. Rummells then talked to Bower and Bower left the scene.

      With Bower now gone, Kolosik advised Rummells and Coleman to

remain   at   Coleman’s    residence       because   he   believed   they   were

intoxicated. However, Kolosik decided not to charge either of them with

any offense. After completing his investigation, Kolosik left the scene.
                                     4

      II. Proceedings.

      On December 10, 2004, Kolosik filed a complaint alleging Bower

committed harassment of a public official in violation of Iowa Code

section 718.4. Bower moved to dismiss the complaint asserting section

718.4 is unconstitutional in that it violates Article I of the United States

Constitution and article I of the Iowa constitution. The court overruled

the motion.

      The case proceeded to trial before a magistrate.      The magistrate

convicted Bower. Reasoning “the statute only criminalizes conduct that

interferes with an ongoing investigation,” the magistrate found the

statute was not overbroad on its face or as applied.        The magistrate

further explained it was not Bower’s words alone that created the

violation, but it was also his conduct of approaching an officer to a point

at which the officer feared for his own personal safety. The magistrate

sentenced Bower to pay a $100 fine plus surcharge and costs.

      Bower appealed the magistrate’s decision to the district court. The

district court affirmed Bower’s conviction, finding the statute criminalizes

conduct rather than speech and that there was substantial evidence to

support Bower’s conviction.       The district court increased Bower’s
sentence to a $500 fine plus costs and a suspended thirty-day jail

sentence.

      Bower filed an application for discretionary review, which we

granted.

      III. Issues.

      Bower raises three issues on appeal. They are: (1) whether Iowa

Code section 718.4 is unconstitutional; (2) whether there is substantial

evidence to support Bower’s conviction under section 718.4; and (3)
                                     5

whether it is permissible for the district court to increase Bower’s

sentence following his unsuccessful non-de novo appeal.

      IV. Scope of Review.

      Our review is de novo when we assess an alleged violation of

constitutional rights.   State v. Shanahan, 712 N.W.2d 121, 131 (Iowa

2006). This review requires an independent evaluation of the totality of

the circumstances. Id. “The fact findings of the district court are not

binding; however, because the district court had the opportunity to

assess the credibility of the witnesses, we do give deference to those

findings.” Id.

      In regards to Bower’s claim as to the sufficiency of the evidence

supporting his conviction, our review is for correction of errors of law.

State v. Leckington, 713 N.W.2d 208, 212-13 (Iowa 2006).

      Finally, “[w]e review the district court’s sentence for correction of

errors at law.”   State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).

Insofar as Bower presents constitutional issues related to his sentence,

our review is de novo.     State v. Mitchell, 670 N.W.2d 416, 418 (Iowa

2003).

      V. Analysis.
      A.   Constitutional challenges.    The State convicted Bower for
violating Iowa Code section 718.4. Section 718.4 provides: “Any person

who willfully prevents or attempts to prevent any public officer or

employee from performing the officer’s or employee’s duty commits a

simple misdemeanor.” Iowa Code § 718.4. We have said “ ‘statutes are

cloaked with a presumption of constitutionality.’ ” State v. Seering, 701

N.W.2d 655, 661 (Iowa 2005) (citations omitted). Thus, Bower “ ‘bears a

heavy burden, because [he] must prove the unconstitutionality beyond a

reasonable doubt.’ ”     Id. (citations omitted).   In doing so, Bower is
                                     6

required to refute every reasonable basis upon which we could declare

the statute constitutional. Id. If we can construe a statute in more than

one way, one of which is constitutional, we will adopt such a

construction. Id.

         The Due Process Clause of the United States Constitution provides

the State shall not “deprive any person of life, liberty, or property without

due process of law.”     U.S. Const. amend. XIV, § 1.     The Due Process

Clause prohibits vague statutes. State v. Musser, 721 N.W.2d 734, 745

(Iowa 2006).     Article I, section 9 of the Iowa constitution states, “no

person shall be deprived of life, liberty, or property, without due process

of law.” Iowa Const. art. I, § 9. We have previously stated vagueness

arguments also arise from this provision of the Iowa constitution. State

v. Todd, 468 N.W.2d 462, 465 (Iowa 1991). Although we have considered

the federal and state due process clauses to be identical in scope, import,

and purpose, interpretations of the federal Due Process Clause are not

binding on us when we are called upon to determine the constitutionality

of Iowa statutes challenged under our own due process clause.

Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999). Because Bower

has not given us reason to interpret the federal and Iowa due process
clauses differently, our discussion of the Due Process Clause of the

Fourteenth Amendment is equally applicable to his Iowa constitutional

claim.

         Vague statutes offend several important principles.     Grayned v.

City of Rockford, 408 U.S. 104, 107-08, 92 S. Ct. 2294, 2298, 33 L. Ed.

2d 222, 227 (1972).

         First, because we assume that man is free to steer between
         lawful and unlawful conduct, we insist that laws give the
         person of ordinary intelligence a reasonable opportunity to
         know what is prohibited, so that he may act accordingly.
                                      7
      Vague laws may trap the innocent by not providing fair
      warning.        Second, if arbitrary and discriminatory
      enforcement is to be prevented, laws must provide explicit
      standards for those who apply them.              A vague law
      impermissibly delegates basic policy matters to policemen,
      judges, and juries for resolution on an ad hoc and subjective
      basis, with the attendant dangers of arbitrary and
      discriminatory application.       Third, but related, where a
      vague statute “abut[s] upon sensitive areas of basic First
      Amendment freedoms,” it “operates to inhibit the exercise of
      [those] freedoms.”       Uncertain meanings inevitably lead
      citizens to “ ‘steer far wider of the unlawful zone’ . . . than if
      the boundaries of the forbidden areas were clearly marked.”

Id. at 108-09, 92 S. Ct. at 2298-99, 33 L. Ed. 2d at 227-28 (alterations in

original) (footnotes omitted) (citations omitted). With these principles in

mind, we now examine Bower’s claims.

      1.   Vague as applied.    Bower asserts section 718.4 is vague as

applied under the state and federal constitutions.           In determining

whether the statute is vague as applied, “we focus on whether the

defendant’s ‘conduct clearly falls “within the proscription of [section

718.4].” ’ ” Musser, 721 N.W.2d at 745 (citations omitted).

      When interpreting statutes, we have said:

      “The goal of statutory construction is to determine legislative
      intent. We determine legislative intent from the words
      chosen by the legislature, not what it should or might have
      said.   Absent a statutory definition or an established
      meaning in the law, words in the statute are given their
      ordinary and common meaning by considering the context
      within which they are used.            Under the guise of
      construction, an interpreting body may not extend, enlarge
      or otherwise change the meaning of a statute.”

State v. Gonzalez, 718 N.W.2d 304, 307-08 (Iowa 2006) (citation omitted).
We look at a statute in its entirety and “ ‘we avoid interpreting a statute

in such a way that portions of it become redundant or irrelevant.’ ” Id. at

308 (citation omitted).      We search for an interpretation that is

reasonable, best achieves the statute’s purpose, and avoids absurd

results. Id. We construe criminal statutes strictly with doubts resolved
                                      8

in favor of the accused. Id. If a standard of conduct can be reasonably

ascertained by referring to prior judicial decisions, similar statutes, the
dictionary, or common generally accepted usage, the statute meets the

requirements of due process. Id. at 310.

       Section 718.4 criminalizes conduct that “willfully prevents or

attempts to prevent any public officer or employee from performing the

officer’s or employee’s duty.” Iowa Code § 718.4. “Willfully,” as used in

section 718.4, means intentionally, deliberately, and knowingly because

preventing or attempting to prevent a public officer or employee from

performing the officer’s or employee’s duty is commonly understood to be

morally questionable, or an action unjustifiably endangering persons or

property. See State v. Azneer, 526 N.W.2d 298, 299 (Iowa 1995) (stating

when    criminalized   conduct   is   inherently     wrong,   “willful”   means

“intentionally, deliberately, and knowingly”).

       We have not had the opportunity to define the term “prevent” as

used in section 718.4.        The dictionary, however, contains several

applicable definitions of the word “prevent,” including “to deprive of

power or hope of acting, operating, or succeeding in a purpose :

frustrate, circumvent”; “to keep from happening or existing esp. by
precautionary measures : hinder the progress, appearance, or fulfillment

of : make impossible through advance provisions”; “to hold or keep back

(one about to act) : hinder, stop”; “to act or come before”; “to make

something impossible.”      Webster’s Third New International Dictionary

1798 (unabr. ed. 2002).

       Finally, a police officer is a public officer.    Thus, section 718.4

criminalizes intentional conduct that hinders or attempts to hinder a

police officer from performing the officer’s duty.
                                       9

      Applying this construction of the statute to the facts, Bower’s

conduct clearly falls within the proscription of section 718.4. Although

Bower argues the only thing he did that evening was to shout at Kolosik,

we find Bower did more.       In addition to shouting at Kolosik, Bower

intentionally approached Kolosik and entered his personal space.

Kolosik perceived Bower’s actions as threatening. Bower’s conduct was

done intentionally to hinder or to attempt to hinder Kolosik from

conducting a lawful investigation.

      Section 718.4 gives fair warning that a person should not willfully

hinder or attempt to hinder an officer from conducting a lawful

investigation. Bower should have known that intentionally entering the

personal space of an officer would hinder an officer from completing a

lawful investigation. Consequently, section 718.4 is not vague as applied

to Bower, who entered the personal space of Kolosik in a threatening

manner while Kolosik was conducting a lawful investigation.

      2. Overbreadth.     Bower also asserts section 718.4 is overbroad.

Normally a person lacks standing to make a facial challenge to a statute,

if a statute can be constitutionally applied to that person’s conduct.

Musser, 721 N.W.2d at 746 n.7.         A recognized exception to this rule
allows First Amendment challenges to statutes based on overbreadth.

Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38,

120 S. Ct. 483, 488, 145 L. Ed. 2d 451, 459 (1999). This exception is

“deemed necessary because persons whose expression is constitutionally

protected may well refrain from exercising their right for fear of criminal

sanctions provided by a statute susceptible of application to protected

expression.” Id. (citation omitted).

      “[T]he overbreadth doctrine permits the facial invalidation of laws

that inhibit the exercise of First Amendment rights if the impermissible
                                       10

applications of the law are substantial when ‘judged in relation to the

statute’s plainly legitimate sweep.’ ” Musser, 721 N.W.2d at 746 (citation
omitted). The Supreme Court has held that even a clear and precisely

worded statute may nevertheless be overbroad if in its reach it prohibits

constitutionally protected conduct. Grayned, 408 U.S. at 114, 92 S. Ct.

at 2302, 33 L. Ed. 2d at 231. However, for a statute to be invalidated it

must reach “ ‘a substantial amount of constitutionally protected

conduct.’ ” City of Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502,

2508, 96 L. Ed. 2d 398, 410 (1987) (citations omitted).             A single

impermissible application of a statute will not be sufficient to invalidate

the statute on its face. Id.

      Bower argues section 718.4 is overbroad because “it prohibits any

interruption of official duties by any means.” Bower asserts “it is well-

settled that verbally preventing a public official from carrying out his or

her duty is not sufficient to constitutionally criminalize speech.”       In

making this argument, Bower relies on the Supreme Court’s decision in

City of Houston v. Hill.       In Hill, while the police were investigating a

situation, the defendant shouted, “Why don’t you pick on somebody your

own size?” Id. at 454, 107 S. Ct. at 2505, 96 L. Ed. 2d at 407. The City
of Houston charged the defendant with violating its city ordinance

making it “unlawful for any person to assault, strike or in any manner

oppose, molest, abuse or interrupt any policeman in the execution of his

duty, or any person summoned to aid in making an arrest.” Id. at 455,

107 S. Ct. at 2505, 96 L. Ed. 2d at 408. Hill was acquitted of the charge.

Id. at 454, 107 S. Ct. at 2505, 96 L. Ed. 2d at 407. Hill then brought a

civil action in federal court for damages. Id. at 455, 107 S. Ct. at 2506,

96 L. Ed. 2d at 408. One of his claims in the civil action was that the

ordinance was unconstitutional both on its face and as applied to him.
                                    11

Id.   In its analysis to determine whether the Houston ordinance was

overbroad, the Supreme Court first noted the Texas Penal Code

preempted most of the conduct prohibited by the Houston ordinance and

the only part of the ordinance that was enforceable was the prohibition

against verbally interrupting a police officer in the execution of his duty.

Id. at 460-61, 107 S. Ct. at 2508-09, 96 L. Ed. 2d at 411. Because the

enforcement of the ordinance was limited to verbal interruptions, the

Supreme Court held the ordinance was overbroad for the reason that it

“criminalizes a substantial amount of constitutionally protected speech,

and accords the police unconstitutional discretion in enforcement.” Id.

at 466, 107 S. Ct. at 2512, 96 L. Ed. 2d at 415.

       In an attempt to save the ordinance from this constitutional defect,

the City argued the Supreme Court should abstain from deciding the

case until the state court had a chance to construe the ordinance. Id. at

467, 107 S. Ct. at 2512, 96 L. Ed. 2d at 415-16. The Court refused to

abstain, stating that the ordinance “cannot be limited to ‘core criminal

conduct’ such as physical assaults or fighting words because those

applications are pre-empted by state law.” Id. at 468, 107 S. Ct. at 2513,

96 L. Ed. 2d at 416.
       In applying the Hill analysis to the present case, we start with the

premise that unlike the situation in Hill, this court has the power to

construe state statutes narrowly to comply with the constitutional right

of free speech. Grayned, 408 U.S. at 110, 92 S. Ct. at 2300, 33 L. Ed. 2d

at 228-29.     As we have said earlier in this decision, the conduct

prohibited by section 718.4 encompasses only intentional conduct that

hinders or attempts to hinder an officer from performing an officer’s

duty. Further, to avoid the risk of constitutional infirmity, we construe

section 718.4 to prohibit only physical conduct and fighting words that
                                    12

hinder or attempt to hinder an officer from performing an officer’s duty.

See State v. Fratzke, 446 N.W.2d 781, 784 (Iowa 1989) (defining fighting

words as “those personally abusive epithets which ‘by their very

utterance inflict injury or tend to incite an immediate breach of the

peace’ ” (citation omitted)).   This construction is consistent with the

intent of the legislature to criminalize conduct that prevents or attempts

to prevent an officer from performing an officer’s duty, without reaching a

substantial amount of rights protected by the First Amendment.

Accordingly, we conclude section 718.4 is not impermissibly overbroad

when construed in this manner.

      B.   Sufficiency-of-the-evidence challenge.   Bower claims there is

insufficient evidence to support his conviction under section 718.4. He

contends the State did not prove Kolosik was engaged in an official duty

at the time of the altercation or that Bower’s nonverbal conduct

prevented Kolosik from carrying out his duties. We disagree.

      In reviewing a sufficiency-of-the-evidence claim, “ ‘we view the

evidence in the light most favorable to the State’ ” and determine whether

substantial evidence supports the verdict. State v. Hoskins, 711 N.W.2d

720, 730 (Iowa 2006) (citation omitted).     Evidence is substantial if a
rational trier of fact could be convinced beyond a reasonable doubt that

the defendant is guilty of the charged crime.       Id. at 730-31.   Under

section 718.4, the State must prove four elements: “(1) [a]ny person; (2)

[w]ho willfully prevents or attempts to prevent; (3) [a]ny public officer or

employee; (4) [f]rom performing the officer’s or employee’s duty.”      See

Iowa Code § 718.4; State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988).

      The question here is whether Bower willfully prevented or

attempted to prevent Kolosik from performing his duty.       First, viewing

the evidence in the light most favorable to the State, a rational trier of
                                       13

fact could be convinced beyond a reasonable doubt that Kolosik was

performing a duty. Kolosik’s testimony supports he was conducting an
investigation   involving   Rummells        and   Coleman,      despite   Bower’s

testimony that Kolosik did not appear to be doing anything more than

“shooting the breeze” and Coleman’s testimony that Kolosik was “making

small talk.” Cf. Shanahan, 712 N.W.2d at 135 (explaining the jury may

give a witness’ testimony such weight as it thinks it should receive, as

“[t]he function of the jury is to weigh the evidence and ‘place credibility

where it belongs’ ” (citation omitted)).

      Second, viewing the evidence in the light most favorable to the

State, a rational trier of fact could be convinced beyond a reasonable

doubt Bower willfully prevented or attempted to prevent Kolosik from

performing his duty.     The “willfully” aspect was supported by Bower’s

testimony that he left his residence in order to go to the scene and

intervene. The “prevented or attempted to prevent” aspect was supported

by Kolosik’s testimony that Bower told him “to get out of [his] area,” and

he “wasn’t supposed to be there,” as well as Kolosik’s testimony that

Bower entered his personal space and he felt threatened by Bower’s

conduct.
      Therefore,   there    is   sufficient   evidence   to    support    Bower’s

conviction under section 718.4.
      C. Increased sentence challenge. Bower claims it is impermissible

for the district court, acting as an appeals judge, to increase his sentence

following his unsuccessful non-de novo appeal.                His argument that

increasing his sentence violates his due process rights is dispositive of

the issue.

      The Supreme Court has summarized a defendant’s due process

right of a “free and unfettered” appeal. North Carolina v. Pearce, 395 U.S.
                                      14

711, 723-24, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d 656, 668-69 (1969),

overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct.
2201, 104 L. Ed. 2d 865 (1989). There the Supreme Court stated:

      It can hardly be doubted that it would be a flagrant violation
      of the Fourteenth Amendment for a state trial court to follow
      an announced practice of imposing a heavier sentence upon
      every reconvicted defendant for the explicit purpose of
      punishing the defendant for his having succeeded in getting
      his original conviction set aside. Where, as in each of the
      cases before us, the original conviction has been set aside
      because of a constitutional error, the imposition of such a
      punishment, “penalizing those who choose to exercise”
      constitutional rights, “would be patently unconstitutional.”
      And the very threat inherent in the existence of such a
      punitive policy would, with respect to those still in prison,
      serve to “chill the exercise of basic constitutional rights.”
      But even if the first conviction has been set aside for
      nonconstitutional error, the imposition of a penalty upon the
      defendant for having successfully pursued a statutory right
      of appeal or collateral remedy would be no less a violation of
      due process of law.         “A new sentence, with enhanced
      punishment, based upon such a reason, would be a flagrant
      violation of the rights of the defendant.” A court is “without
      right to . . . put a price on an appeal. A defendant’s exercise
      of a right of appeal must be free and unfettered. . . . [I]t is
      unfair to use the great power given to the court to determine
      sentence to place a defendant in the dilemma of making an
      unfree choice.” “This Court has never held that the States
      are required to establish avenues of appellate review, but it
      is now fundamental that, once established, these avenues
      must be kept free of unreasoned distinctions that can only
      impede open and equal access to the courts.”
Id. (alteration in original) (internal citations omitted) (footnotes omitted).
      Pearce involved an appeal by two defendants.           One defendant’s

conviction was reversed in a state court post-conviction proceeding while

the other defendant’s conviction was set aside in a state court coram-

nobis proceeding. Id. at 713-14, 89 S. Ct. at 2074-75, 23 L. Ed. 2d at

662-63. On retrial, the court found both defendants guilty and gave both

harsher sentences. Id. In holding the state court could not impose a

harsher sentence on retrial, the Supreme Court stated, “[d]ue process of

law [ ] requires that vindictiveness against a defendant for having
                                     15

successfully attacked his first conviction must play no part in the

sentence he receives after a new trial.” Id. at 725, 89 S. Ct. at 2080, 23
L. Ed. 2d at 669.     The court then held to ensure a defendant’s due

process rights are not violated on resentencing after a new trial, the due

process clause only allows the judge in the second trial to impose a more

severe sentence if the record contains reasons for the harsher sentence

based on “objective information concerning identifiable conduct on the

part of the defendant occurring after the time of the original sentencing

proceeding.” Id. at 726, 89 S. Ct. at 2081, 23 L. Ed. 2d at 670.

      A series of subsequent rulings by the Supreme Court limited the

holding of Pearce and restricted the presumption of vindictiveness. One

of the first decisions to make inroads into the doctrine announced in

Pearce was Colten v. Kentucky. 407 U.S. 104, 115-16, 92 S. Ct. 1953,

1959-60, 32 L. Ed. 2d 584, 592-93 (1972). In Colten, the Supreme Court

found under Kentucky’s two-tiered court system, where the superior

court judge conducts a de novo trial and imposes a more severe sentence

than that imposed by the lower court judge, due process is not violated.

Id. at 116, 92 S. Ct. at 1960, 32 L. Ed. 2d at 593. In limiting Pearce’s

application, the Supreme Court found a de novo review is more like a
new trial. Id. at 116-18, 92 S. Ct. at 1960-61, 32 L. Ed. 2d at 593-94.

Therefore, a defendant’s due process rights are not violated because it

cannot be assumed a court reviewing de novo will impute a harsher

result than if the case was originally filed and tried in that de novo court.

Id. We have applied this rule when the review is de novo and the district

court finds the defendant guilty and sentences the defendant to a
                                          16

harsher sentence than that of the lower court. City of Cedar Rapids v.

Klees, 201 N.W.2d 920, 921 (Iowa 1972). 1
       Another decision limiting Pearce’s application involved a retrial

where the second jury sentenced the defendant to a harsher sentence

than the first jury. Chaffin v. Stynchcombe, 412 U.S. 17, 28, 93 S. Ct.

1977, 1983, 36 L. Ed. 2d 714, 724 (1973). There the Supreme Court

held the defendant’s due process rights were not violated by the

imposition of a harsher sentence so long as the second jury was not

informed of the defendant’s prior conviction and sentence, and based its

sentencing decision on the evidence presented at the second trial. Id. at

27-28, 93 S. Ct. at 1982-83, 36 L. Ed. 2d at 723-24.

       A third decision limiting Pearce’s application involved a retrial

where the judge sentenced the defendant to a harsher sentence than the

jury gave in the first trial. Texas v. McCullough, 475 U.S. 134, 136, 106

S. Ct. 976, 977, 89 L. Ed. 2d 104, 109 (1986). There the Supreme Court

held because the second sentence was determined by a trial judge who

provided “an on-the-record, wholly logical, nonvindictive reason for the

sentence” and “relied on the testimony of two new witnesses which [the

judge] concluded ‘had a direct effect upon the strength of the State’s case
at both the guilt and punishment phases of the trial[,]’ ” the defendant’s

due process rights were not violated by the imposition of a harsher

sentence. Id. at 140, 143, 106 S. Ct. at 980-81, 89 L. Ed. 2d at 112-14.

       Lastly, the Supreme Court analyzed a case where a defendant

successfully overturned his guilty plea and proceeded to a trial.

Alabama, 490 U.S. at 795, 109 S. Ct. at 2203, 104 L. Ed. 2d at 870. At

       1
         At the time Klees was decided, the statute provided on appeal “[t]he cause shall
stand for trial anew in the district court in the same manner that it should have been
tried before [the lower court].” Iowa Code § 762.48 (1971), repealed by 1972 Iowa Acts
ch. 1124, § 282.
                                     17

trial, the same judge who took the plea imposed a greater sentence than

that previously imposed after the plea. Id. The Supreme Court noted
during a trial on the evidence a “judge may gather a fuller appreciation of

the nature and extent of the crimes charged[ ]” from the evidence

produced at trial than from the information he used to sentence the

defendant after a plea. Id. at 801, 109 S. Ct. at 2206, 104 L. Ed. 2d at

874. The Court also noted the factors that may have indicated leniency

to the judge after the plea may no longer be present after a trial on the

merits.   Id.   The Supreme Court found so long as the judge can

objectively justify the imposition of a harsher penalty, the imposition of a

harsher sentence does not violate a defendant’s due process rights. Id.

at 802, 109 S. Ct. at 2206, 104 L. Ed. 2d at 874. This decision limited

Pearce’s presumption of vindictiveness to circumstances “in which there

is a ‘reasonable likelihood’ that the increase in sentence is the product of

actual vindictiveness on the part of the sentencing authority.” Id. at 799,

109 S. Ct. at 2205, 104 L. Ed. 2d at 873 (citation omitted). When there

is not a reasonable likelihood that an increase in sentence is the product

of actual vindictiveness, a defendant must prove actual vindictiveness.

Id. at 799-800, 109 S. Ct. at 2205, 104 L. Ed. 2d at 873.
      We have had an occasion to examine this body of jurisprudence in

the context of a retrial, where a judge sentenced a defendant to a harsher

sentence than the original judge did after the first trial. State v. Mitchell,

670 N.W.2d 416, 422 (Iowa 2003). There we summarized the law, stating

the presumption of judicial vindictiveness does not apply “ ‘when a

different judge sentences a defendant after a retrial, and that judge

articulates logical, nonvindictive reasons for the sentence.’ ” Id. at 424

(citations omitted); see also United States v. Anderson, 440 F.3d 1013,

1016 (8th Cir. 2006) (stating there is no presumption of vindictiveness
                                          18

“when a different judge imposes a more severe sentence during

resentencing and the record contains non-vindictive reasons for the more
severe sentence[ ]”).

       In applying these principles to the present case, it is first necessary

to determine the review Bower received.               The Iowa rules of criminal

procedure govern the procedure when appealing a magistrate’s decision.

In this case, Bower appealed the magistrate’s decision to the district

court. The rules require the district court to decide the appeal on the

record, if the court finds the record adequate to determine whether

substantial evidence supports the findings of fact in the original

proceeding.     Iowa R. Crim. P. 2.73(3).         If the record is adequate and

substantial evidence supports the findings of fact, the findings are

binding on the judge deciding the appeal.              Id.   If the court finds the

record inadequate to determine whether the findings of fact in the

original action are supported by substantial evidence, the judge may

order presentation of further evidence on appeal. 2 Id. Additionally, “[t]he

judge deciding the appeal may affirm, or reverse and enter judgment as if

the case were being originally tried, or enter any judgment which is just

under the circumstances.” Id.
       In Bower’s appeal, the district court did not order any further

evidence to be presented. Therefore, we assume the record was adequate

for the court to determine whether substantial evidence supports the




       2
         When before a magistrate, our rules of criminal procedure allow for a record to
be made electronically or by minutes of testimony prepared by the magistrate if either
party does not provide a court reporter at that party’s expense. Iowa R. Crim. P.
2.67(9). The record could be inadequate if the recording is inaudible or the minutes are
incomplete.   Under these circumstances, the appeals judge could order further
testimony, resulting in a different type of review.
                                      19

findings of fact in the original proceeding.       Consequently, the district

court reviewed the magistrate’s decision for correction of errors at law.
      In making a correction-of-errors-at-law review, such as the district

court did in this case, the reviewing court’s function is to determine

whether substantial evidence supports the findings made by the lower

court, not whether the evidence might support different findings. Fischer

v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005).            Under its

correction-of-errors-at-law review, the findings of the magistrate were

binding on the district court.     Iowa R. Crim. P. 2.73(3).      The district

court, acting as the reviewing court, has no authority to make new

findings of fact.     If substantial evidence exists to support the lower

court’s decision, the reviewing court must affirm the lower court

decision.    Accordingly, a review on the record is not equivalent to a

proceeding    where     the   appellate    court   makes   its   own   factual

determinations or receives additional evidence before announcing its

sentence.    Without the ability of the reviewing court to make new

findings of fact there can be no objective basis in the appeal record for

the appellate court to increase a defendant’s sentence. Additionally, even

if we were to conclude that Bower’s non-de novo review was somehow
equivalent to a retrial, the district court did not provide any “logical,

nonvindictive reasons” for increasing Bower’s sentence.

      Under the decisions of the Supreme Court, a defendant’s due

process rights are not violated if a second court imposes a harsher

sentence than the first court, so long as the second court reconsiders the

evidence, finds its own facts, and provides logical non-vindictive reasons

for imposing the harsher sentence. In the present case, the district court

did not reconsider the evidence, make its own findings of fact, or provide

the defendant with logical non-vindictive reasons for imposing a harsher
                                         20

sentence. Consequently, it was improper for the district court to impose

a harsher sentence. 3
       VI. Disposition.

       Because Iowa Code section 718.4 is constitutional and there is

sufficient evidence to support Bower’s conviction under section 718.4, we

affirm Bower’s conviction. We do find, however, that the district court’s

imposition of a harsher sentence violates his due process rights.

Consequently, we vacate the sentence of the district court and remand

the case for the district court to enter judgment with the same sentence

imposed by the magistrate.

       JUDGMENT           OF     CONVICTION           AFFIRMED,          SENTENCE

VACATED, CASE REMANDED WITH DIRECTIONS.

       All justices concur except Hecht and Appel, JJ., who take no part.




       3  This conclusion is consistent with our state’s public policy governing
resentencing on appeals from the district court to our appellate courts. The Code
provides in an appeal from the district court an appellate court may reduce punishment
on appeal, but may not increase it. Iowa Code § 814.20; see also State v. Draper, 457
N.W.2d 600, 606 (Iowa 1990) (stating “[a]t most, section 814.20 might preclude us from
increasing a sentence imposed by the district court in cases where the district court’s
sentence is legal”).
