                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1990
                           Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL KENNETH HOWARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      The defendant appeals his conviction of harassment in the first degree.

AFFIRMED.



      Sharon D. Hallstoos, of the Halstoos Law Firm, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


POTTERFIELD, Judge.

       Paul Howard appeals his conviction of harassment in the first degree. He

claims the court erred denying his motion for judgment of acquittal because the

evidence does not support the elements of the crime.            He also claims trial

counsel was ineffective for failing to file a motion for new trial. We affirm.

       I. Background Facts and Proceedings.

       On May 17, 2016, Howard was charged by trial information with the crime

of harassment in the first degree, pursuant to Iowa code section 708.7(2) (2016).

The charges arose from an April 12 disruption at the Scott County Administration

Building where Howard allegedly threatened to kill a bailiff working security. The

defendant waived his right to a jury trial, and the case was tried to the bench on

August 29.

       At trial, Janet Dolan, the bailiff who was providing security for the Scott

County Administration building testified about her encounter with Howard on April

12. She stated she heard “a very loud disturbance” coming from the treasurer’s

office. She described the disturbance as an angry, male voice that was “cussing

and swearing.” Upon her investigation, she discovered Howard standing in line

in a crowded room yelling, “These stupid fucking white crackers. Pieces of shit

can’t get anything right.” She stated other people in the room appeared upset

and afraid.

       Dolan testified she approached Howard and asked him to leave the

building. She stated the defendant responded by yelling multiple times, “I’m a

thirty-year-old man, you white bitch. You can’t tell me what to do.” Eventually,

Howard left the building and Dolan followed him to ensure he left the premises.
                                         3


According to Dolan, once she and Howard were outside the building, Howard

walked towards the sidewalk and stated, “[Y]ou fucking white bitch.          White

cracker whore. I’m going to go get a gun and come back and kill you.” Dolan

stated Howard continued to complain and he walked over to the railroad tracks,

picked up a rock, and threw it at her.

       Dolan also testified that people are often upset at the administration

building, and she is trained to escort people out of the building as peacefully as

possible. She stated standard procedure is to ensure the individuals leave the

property without force.

       At the close of the State’s case, Howard moved for a judgment of

acquittal. The court denied Howard’s motion, holding “there is sufficient evidence

that could convince a rational trier of fact on each of the elements of harassment

in the first degree.”

       Howard also testified at trial. He testified he was at the administration

building attempting to register his aunt’s car. He stated he became upset when

he was missing certain documentation to register a car, and the bailiff

approached him and asked him to “lower his tone.” He stated Dolan pulled out

her taser and said, “get the hell out of here,” and “I’ll fucking tase you.” He

acknowledged using profanity but denied throwing a rock at Dolan. Regarding

any interaction with Dolan after he left the building, Howard stated, “I didn’t have

any interaction with her. I left and walked away.”

       The trial court found Howard guilty of harassment in the first degree in

violation of Iowa Code section 708.7(2). Howard appealed.
                                            4


II. Standard of Review.

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Claims of ineffective

assistance of counsel are reviewed de novo. See, e.g., State v. Liddell, 672

N.W.2d 805, 809 (Iowa 2003).

III. Discussion.

       Howard claims the trial court erred denying his motion for judgment of

acquittal. He also claims counsel was ineffective for failing to file a motion for

new trial challenging the weight of the evidence.1

       a. Sufficiency of Evidence.

       Howard argues the evidence was insufficient to support the verdict based

on Dolan’s credibility. The State argues sufficient evidence exists in the record to

support the elements of the claim. We agree with the State.

       “In making determinations on the sufficiency of the evidence, ‘we . . . view

the evidence in the light most favorable to the state, regardless of whether it is

contradicted, and every reasonable inference that may be deduced therefrom

must be considered to supplement that evidence.’” State v. Harris, 891 N.W.2d

182, 186 (Iowa 2017) (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979)).

“We will uphold a trial court’s denial of a motion for judgment of acquittal if the

record contains substantial evidence supporting the defendant’s conviction.” Id.



1
 Howard also argues trial counsel was ineffective for failing to challenge the sufficiency
of the evidence in a post-trial motion. Error was preserved because counsel already
challenged the sufficiency of the evidence in a motion for judgment of acquittal. See
State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“Counsel cannot fail to perform an
essential duty by merely failing to make a meritless objection.”). Accordingly, we review
Howard’s claim under the sufficiency-of-the-evidence analysis.
                                           5


(citation omitted). “Evidence is substantial if it would convince a rational trier of

fact the defendant is guilty beyond a reasonable doubt.” Id. (citation omitted).

       Generally, direct eyewitness testimony establishing the elements of the

crime are sufficient to generate a jury question. See State v. Kutcher, No. 14-

0602, 2015 WL 4935583, at *2 (Iowa Ct. App. Aug. 19, 2015) (holding officer’s

testimony that he witnessed the defendant commit the elements of the crime is

sufficient to uphold verdict). Even in light of Howard’s credibility challenges to

Dolan’s testimony, “[the trier of fact] is free to believe or disbelieve any testimony

as it chooses.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).

       Harassment in the first degree requires the State to prove the following

elements: (1) Howard purposely, and without legitimate purpose, had personal

contact2 with another person; (2) Howard communicated a threat to commit a

forcible felony; (3) Howard did so with the specific intent to threaten, intimidate,

or alarm the other person. See Iowa Code § 708.7(1)(b), (2)(a).

       Viewing the evidence in the light most favorable to the State, there is

sufficient evidence to support Howard’s guilty verdict. Dolan testified Howard

yelled expletives at her while he was leaving the building. Dolan also testified

that Howard stated, “I’m going to go get a gun and come back and kill you.”

Howard purposely engaged in personal contact with Dolan by communicating

with her while in visual proximity to each other. See id. Howard also explicitly

communicated a threat to commit a forcible felony when he threatened to kill her


2
  “‘Personal contact’ means an encounter in which two or more people are in visual or
physical proximity to each other. ‘Personal contact’ does not require a physical touching
or oral communication, although it may include these types of contacts.” Iowa Code
§ 708.7(1)(b).
                                             6

without legitimate purpose. See State v. Evans, 672 N.W.2d 328, 331 (Iowa

2001) (“Because there must be a specific intent to threaten, intimidate, or alarm,

the only legitimate purpose that will avoid the criminal status conferred by the

statute would be a legitimate purpose to threaten, intimidate, or alarm.”). While

Howard argues his version of the events does not support the elements, the trier

of fact is free to believe Dolan’s testimony over Howard’s testimony.                  See

Thornton, 498 N.W.2d at 673.             The record contains substantial evidence

supporting the defendant’s conviction.

       b. Ineffective Assistance.

       Howard claims trial counsel was ineffective for failing to file a motion for

new trial based on the weight of the evidence.3 The State argues Howard’s trial

counsel was not required to file a motion for new trial because Dolan’s credible

testimony supports the verdict.

       To prove his claims of ineffective assistance of counsel, Howard must

prove by a preponderance of the evidence: (1) counsel failed to perform an

essential duty and (2) Howard suffered prejudice as a result.               See State v.

Morgan, 877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either

prong is not proved. Id. When a defendant chooses to raise an ineffective-

assistance-of-counsel claim on direct appeal, we may either determine the record

is adequate and decide the claim or find the record is inadequate and preserve


3
  Howard also argues trial counsel was ineffective for failing to file a motion in arrest of
judgment and a motion to vacate challenging the sufficiency of the evidence. “A motion
in arrest of judgment may not be used to challenge the sufficiency of the evidence.”
State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990). Counsel has no duty to raise an
issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008). We decline
to address Howard’s claim that trial counsel was ineffective for failing to file a motion in
arrest of judgment.
                                        7

the claim for postconviction proceedings. See State v. Neitzel, 801 N.W.2d 612,

624 (Iowa Ct. App. 2011).

      To prove the first prong of this claim, Howard must show counsel’s

performance fell outside the normal range of competency. See State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).        Starting “with the presumption that the

attorney performed his duties in a competent manner,” “we measure counsel’s

performance against the standard of a reasonably competent practitioner.” State

v. Maxwell, 743 N.W.2d 185, 195–96 (Iowa 2008).         Although counsel is not

required to predict changes in the law, counsel must “exercise reasonable

diligence in deciding whether an issue is ‘worth raising.’” State v. Westeen, 591

N.W.2d 203, 210 (Iowa 1999) (quoting State v. Schoelerman, 315 N.W.2d 67, 72

(Iowa 1982)). In accord with these principles, we have held that counsel has no

duty to raise an issue that has no merit. Schaer, 757 N.W.2d at 637.

       While trial counsel’s intentions are not clear, the record is sufficient to

resolve Howard’s claim. In doing so, we turn first to the prejudice prong of the

ineffective-assistance analysis. Under the second prong, “prejudice is shown

when it is ‘reasonably probable that the result of the proceeding would have been

different.’” Schaer, 757 N.W.2d at 638 (quoting State v. Henderson, 537 N.W.2d

763, 765 (Iowa 1995)). Howard argues the result would have been different

because trial court would have granted a new trial upon reviewing the weight of

the evidence. Essentially Howard claims his testimony is more credible than

Dolan’s. We disagree.

       “A verdict is contrary to the weight of the evidence only when ‘a greater

amount of credible evidence supports one side of an issue or cause than the
                                         8

other.’”   State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016) (quoting State v.

Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)).           The weight-of-the-evidence

standard is “more stringent than the sufficiency-of-the-evidence standard in that it

allows the court to grant a motion for new trial only if more evidence supports the

alternative verdict as opposed to the verdict rendered.” Id.

       Howard argues Dolan’s testimony is not credible because her account of

the events was contradicted by her actions. Specifically, Howard asserts if he

had really threatened to kill Dolan and thrown a rock at her, she would have used

her weaponry, skill, and training to arrest Howard at the scene.

       Dolan’s testimony, however, was not contradictory. Dolan testified that

she is trained to resolve disputes in a peaceful manner and standard procedure

is to follow the disruptive person and make sure they leave the premises. She

testified, “[O]ur goal is to not have to go hands on with someone.” Her failure to

respond to Howard using force is credible and it supports, rather than

contradicts, her testimony.   See State v. Frake, 450 N.W.2d 817, 819 (Iowa

1990) (holding consistency of statements, memory, knowledge of the facts, and

the witness’s interest in the trial are valid credibility considerations). Dolan’s

credible testimony is not outweighed by Howard’s testimony, and the weight of

the evidence does not support the alternative verdict.             Howard was not

prejudiced—he would not have received a different result had trial counsel filed a

motion for new trial challenging the weight of the evidence. Accordingly, trial

counsel was not ineffective. State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008)

(“Counsel cannot fail to perform an essential duty by merely failing to make a

meritless objection.”)
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IV. Conclusion.

      The record contains substantial evidence supporting the defendant’s

conviction because Dolan’s testimony establishes the elements of the charged

crime. Additionally, trial counsel was not ineffective because Howard cannot

demonstrate prejudice; the weight of Dolan’s credible testimony is not

outweighed by Howard’s testimony.

      AFFIRMED.
