                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0099
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHANIEL CUMMINGS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James D. Coil,

District Associate Judge.



      A defendant appeals following his conviction for domestic abuse assault

causing bodily injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

       Nathaniel Cummings appeals following a jury verdict finding him guilty of

domestic abuse assault causing bodily injury. He claims on appeal the evidence

is not sufficient to support his conviction and his trial counsel was ineffective in

failing to move for a new trial based on the weight of the evidence. He also

claims the district court erred in not granting a mistrial when prior-bad-acts

evidence was admitted. We affirm his conviction.

I. Background Facts and Proceedings.

       On March 20, 2014, Cummings spent the night in Waverly at the home

belonging to the mother of his two children, Shelby Miller. The next morning after

getting herself and the children ready for the day, Miller woke up Cummings,

telling him he needed to find a ride back to his home in Waterloo. Cummings told

Miller she needed to take him home, but she informed him she did not have time

to take him to Waterloo because she needed to get the children to school and get

to her job in Cedar Falls before 9 a.m. Cummings berated Miller at home and in

the vehicle, a Ford Focus, as the two dropped the children off at school. Miller

then drove back home to allow Cummings to retrieve items out of Miller’s other

vehicle, a Lincoln Town Car. Cummings continued the verbal assault on Miller,

who then agreed to try to take Cummings to Waterloo on her way to work.

However, she informed him that if there was not enough time, he would need to

find a ride home from her place of employment.

       When Miller realized she could not drop Cummings at his home in

Waterloo and get to work on time, she exited the highway to make her way to her

place of employment. Cummings became increasingly angry, and Miller called
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her father and then called 911 from her cell phone. Cummings terminated both

calls using the buttons on the vehicle’s Bluetooth connection.          Cummings’s

actions in terminating both phone calls made Miller feel like “things were going to

get out of control.”

       Miller drove into her parking lot at work and attempted to retrieve the set of

keys for the Town Car out of Cummings’s pocket.            Miller grabbed ahold of

Cummings’s sweatshirt, preventing him from exiting the car. Cummings then

kicked Miller in the chest from the passenger side of the vehicle, losing his shoe

in the process. Miller was unsure whether the kick was meant for her or the

center console, but she picked up Cummings’s shoe and attempted to use it as

leverage to get the Town Car keys from Cummings. As Cummings exited the

vehicle, he took the keys for the Focus from the ignition and swung a plastic ice

scraper at Miller, though it did not hit Miller.

       The parties continued to yell at each other outside of the vehicle;

Cummings demanding the return of his shoe, and Miller demanding the return of

the keys. Cummings threw the Focus keys across the parking lot. When Miller

headed to retrieve the keys, Cummings followed, trying to grab his shoe from

Miller’s arm. Miller again attempted to call 911, but Miller dropped the phone and

the call was disconnected when Cummings grabbed Miller’s purse, ripping it from

her arms and spilling its contents onto the parking lot. Still attempting to get his

shoe, Cummings grabbed Miller’s left wrist and squeezed hard, leaving marks

and drawing blood. Miller released Cummings’s shoe, and Cummings returned

Miller’s broken purse. As Cummings walked away, he threw the Town Car keys

at Miller telling her to call the police because he was ready to go back to prison.
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Miller then called 911 and informed the police officer what had occurred.

Cummings was located at a nearby store and eventually arrested for domestic

abuse assault.

      The case proceeded to a jury trial on October 21, 2014. After the jury

found Cummings guilty as charged, he was sentenced to 365 days in jail,

ordered to pay a $315 fine plus a 35% surcharge, and assessed court costs,

court-appointed attorney fees, and victim restitution, if any. He was also ordered

to complete an Iowa domestic abuse program, and a five-year no-contact order

was entered. Cummings now appeals.

II. Scope and Standard of Review.

      We review challenges to the sufficiency of the evidence for correction of

errors at law.   State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014).             We

consider all the evidence in the light most favorable to the State, including all

reasonable inferences. Id. at 439–40. We will affirm the verdict if substantial

evidence supports it. Id. at 440.

      Cummings raises his challenge to the weight of the evidence as an

ineffective-assistance-of-counsel claim, which we review de novo because the

claim implicates the Sixth Amendment right to counsel. State v. McCoy, 692

N.W.2d 6, 14 (Iowa 2005). Cummings must prove his trial counsel failed to

perform an essential duty and this failure resulted in prejudice to him. Id. While

we do not normally decide claims of ineffective assistance on direct appeal, we

will address the claim when the record is clear. Id.

      A district court’s ruling on a motion for mistrial is reviewed for an abuse of

discretion. State v. Jirak, 491 N.W.2d 794, 796 (Iowa Ct. App. 1992). Trial
                                            5


courts are in a better position to gauge the effect of the conduct complained of,

so we will not find an abuse of discretion except where there is no support in the

record for the trial court’s determination. Id.

III. Sufficiency and Weight of the Evidence.

       To be convicted of domestic abuse assault, the jury had to find:

               1. On or about March 20, 2014, the defendant committed an
       act:
                  a. which was intended to cause pain or injury to Shelby
                      Miller,
                      or
                  b. which was intended to result in physical contact which
                      was insulting or offensive to Shelby Miller,
                      or
                  c. which was intended to place Shelby Miller in fear of
                      immediate physical contact which would have been
                      painful, injurious, insulting, or offensive to her.
               2. The defendant had the apparent ability to do the act.
               3. The defendant’s act caused a bodily injury to Shelby
       Miller as defined in Instruction No. 10.
               4. The defendant and Shelby Miller were the parents of the
       same minor children.[1]

Cummings maintains on appeal there was insufficient evidence to prove his

actions were intended to cause pain or injury, were intended to result in insulting

or offensive physical contact, or were intended to place Miller in fear of contact

that would have been painful, injurious, insulting, or offensive. He claims the

evidence proves he only had the intent to get away from Miller and to get his

shoe back.

       The evidence in the record establishes Cummings verbally abused Miller

on the morning in question, including preventing her from contacting family or


1
 Cummings does not assert the law in the jury instructions was incorrect, so we will
examine his claims in view of the instructions given to the jury. See State v. Nitcher, 720
N.W.2d 547, 556 (Iowa 2006).
                                          6


police.     Miller feared things were getting out of control after Cummings

terminated her phone calls. The verbal abuse then culminated with a physical

altercation both in the car and the parking lot of Miller’s employment. While Miller

did initially have a grip on Cummings’s sweatshirt in order to obtain the Town Car

keys, she let go of the sweatshirt after she was kicked in the chest by Cummings.

Cummings then threw an ice scraper at Miller as he exited the vehicle. Next,

Cummings grabbed Miller’s purse and ripped it from her arm, leaving bruises,

breaking the straps, and spilling the contents onto the ground.            Finally, he

grabbed Miller’s wrist and squeezed, again leaving marks and drawing blood.

While Cummings claims his actions were motivated by his desire to retrieve his

shoe from Miller, this motivation does not negate a finding by the jury that he

acted with the intent to cause pain or injury, with the intent that his physical

contact would be insulting or offense, or with the intent to place Miller in fear of

painful, injurious, insulting, or offensive contact.         Miller’s possession of

Cummings’s shoe does not justify Cummings’s physical assault on Miller. We

conclude substantial evidence supports the jury’s verdict in this case and the

district court correctly denied Cummings’s motion for judgment of acquittal.

          Likewise, we conclude Cummings cannot prove his counsel breached an

essential duty or that he suffered prejudice as a result of counsel’s failure to file a

motion for new trial challenging the weight of the evidence to support the verdict.

If such motion had been filed by counsel, we conclude, based on the evidence in

the record, the court would not have granted such motion because the evidence

does not preponderate heavily against the verdict. See State v. Serrato, 787

N.W.2d 462, 472 (Iowa 2010) (noting the district court’s discretion to grant a new
                                          7


trial based on the weight of the evidence “should be invoked only in exceptional

cases in which the evidence preponderates heavily against the verdict” (citation

omitted)). Because the court would not have granted such a motion if counsel

had filed it, we conclude Cummings cannot prove his ineffective-assistance-of-

counsel claim. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[W]e have

held that counsel has no duty to raise an issue that has no merit.”).

IV. Prior Crimes—Mistrial.

       Next, Cummings claims the district court should have granted his motion

for mistrial when Miller volunteered during her testimony that Cummings said, as

he was walking away, “to call the . . . police because he was ready to go back to

prison.” Prior to trial, Cummings had filed a motion in limine seeking to exclude

evidence of his “prior convictions, character, and/or other bad acts, arrests,

including but not limited to reference to active arrest warrants, or reference to

defendant’s parole status.” This motion was granted upon the consent of the

State not to admit this type of evidence unless Cummings opened the door. In

addition, the State agreed to advise Miller that any prior incidents or bad acts by

Cummings should not be volunteered.

       The question the State had asked Miller when Miller volunteered this

information was where Cummings went after he put his shoe on. The State then

asked two more questions of Miller before defense counsel asked to approach

the bench and defense counsel made a motion for mistrial outside the presence

of the jury.2 The State agreed the jury could be admonished to disregard the


2
 The State asserts on appeal Cummings did not preserve error because he failed to
object to the statement when it was made and the motion in limine did not address this
                                         8


statement, but Cummings’s attorney insisted such an admonishment would not

be sufficient “because the well has been poisoned.”

       In denying the motion for mistrial, the court noted the statement did not

violate the court’s in limine ruling because it did not convey Cummings’s prior

record or prior bad acts but was instead informing the jury what Cummings said

after the assault. The court concluded the statement was in the nature of an

admission and an acknowledgement that Cummings had done something wrong.

In addition, the court found the statement was more probative than prejudicial.

       Under Iowa Rule of Evidence 5.404(b), evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person, but it may be

admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” This is not an exhaustive list of

exceptions. State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010) (“The examples

listed in rule 5.404(b) are not exclusive; rather, ‘[t]he important question is

whether the disputed evidence is “relevant and material to some legitimate issue

other than a general propensity to commit wrongful acts.”’” (alteration in original)

(citations omitted)). Assuming for the sake of this appeal that stating a person

has previously been in prison meets the definition of “other crimes, wrongs, or

acts,” the evidence would be admissible under rule 5.404(b) if it was otherwise

relevant and material to a fact at issue and its probative value was not

substantially outweighed by the danger of unfair prejudice. Id.


specific statement despite the fact the statement was contained in the police report.
Without resolving the error preservation concerns, we will address the merits of
Cummings’s claim. See State v. Webster, 865 N.W.2d 223, 232 (Iowa 2015) (“For the
purposes of this appeal, we address the underlying merits of the bias claim without
deciding the question of preservation.”).
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       It was Cummings’s defense at trial and on appeal that he did not intend to

assault Miller during the altercation, but he was merely trying to get his shoe

back from her. The statement in this case—for Miller to call the police because

Cummings was ready to go back to prison—was relevant to show he recognized

what he did during the altercation was wrong. See State v. Mitchell, 450 N.W.2d

828, 832 (Iowa 1990) (holding the defendant’s attempted suicide after the crime

was admissible to show consciousness of guilt when the defendant and victim

had such disparate views of the same incident).         In addition, while Miller’s

statement indicated Cummings had previously been in prison, there was no

indication what prior crime or wrong he had committed to be placed in prison.

The evidence did not show Cummings was a bad guy but showed he was aware

he had done something wrong during this altercation with Miller. Because the

evidence was relevant, not unduly prejudicial, and did not violate rule 5.404(b),

we conclude the district court did not abuse its discretion when it denied

Cummings’s motion for mistrial.

V. Conclusion.

       Cummings’s conviction is supported by substantial evidence, and

therefore, we conclude the court did not err in denying the motion for judgment of

acquittal. Likewise, we conclude Cummings cannot prove his counsel provided

ineffective assistance by failing to file a motion for new trial based on the weight

of the evidence. Finally, we conclude the court did not abuse its discretion in

denying Cummings’s motion for mistrial when the complaining witness testified

Cummings had previously been in prison. Cummings’s conviction is affirmed.

       AFFIRMED.
