                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2170
                             Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SETH LWISHI,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Casey D. Jones,

District Associate Judge.



      Seth Lwishi appeals his convictions for assault on a peace officer and

interference with official acts. AFFIRMED.




      Richard L. Pazdernik Jr. of Pazdernik Law Office, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Mahan, S.J.*

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

        Seth Lwishi appeals his convictions for assault on a peace officer and

interference with official acts. We affirm.

        I.    Background Facts and Proceedings1

        In August 2014, a uniformed police officer responded in a marked police

car to a report of an intoxicated person causing a disturbance. The officer was

informed the suspect was a black male wearing a jersey with the number

fourteen on it.    When the officer arrived, he saw Lwishi, who matched the

description of the suspect, with two other men. The officer was able to identify

Lwishi when Lwishi, upon request, produced a Republic of Congo identification

card.

        Lwishi was holding a can of beer in his hand. The officer noticed a strong

odor of alcohol was emanating from Lwishi, his eyes were bloodshot and watery,

his speech was slurred, and his balance was unsteady. At the officer’s request,

Lwishi poured out the remaining contents of his beer can.

        The police officer asked the other two men what was going on. They

indicated Lwishi had stopped them while they were walking from a festival but

they were unable to understand what Lwishi wanted from them. The officer then

asked Lwishi the same question; Lwishi replied he was hanging out with friends.

Lwishi told the officer he had been drinking earlier that day at the same festival.

        Because Lwishi was showing all the signs of being intoxicated in public

and the officer believed Lwishi would continue to cause problems for other


1
 At trial, two police officers testified to the events giving rise to the charges against
Lwishi. The defense called no witnesses.
                                             3


individuals going to and from the festival, the officer informed Lwishi he was

arresting him for public intoxication. The officer instructed Lwishi to put his arm

behind his back. Lwishi responded, “Sheriff, I do not want to go to jail.” The

officer repeated his instruction; Lwishi refused to comply.              The officer then

forcibly put Lwishi’s arm behind his back. When asked, Lwishi refused to provide

his other arm.

       When the officer attempted to grab Lwishi’s second arm, he pulled away

from the officer, turned to face him, and took an aggressive stance as though he

was going to come at the officer. Lwishi yelled at and moved toward the officer.

The officer then pushed Lwishi backward toward the patrol car. As the officer

pushed Lwishi backward, Lwishi struck the officer in the face with a closed fist.

The officer testified he sustained a small cut to his inner lip.2

       It appeared to the officer that Lwishi was about to come at him again, so

he struck Lwishi twice in the face with his open hand. As a result, Lwishi fell

backward. The officer instructed Lwishi to stop resisting; Lwishi refused, instead

moving toward the officer again.3 The officer grabbed Lwishi by the back of his

head, pulled him to the ground, jumped on top of Lwishi, and gained control.

       Once on the ground, the officer instructed Lwishi to place his hands

behind his back. Lwishi refused and buried his hands underneath himself toward

his belt. The officer was uncertain whether Lwishi had a weapon. The officer

attempted to pull Lwishi’s arms out from beneath him but was unsuccessful.


2
  The record indicates the officer attempted to take a picture of the cut but was unable to
capture an image of the cut in the photographs.
3
  At trial, the defense noted this final approach by Lwishi was not recorded in the officer’s
police report of the incident.
                                          4


When Lwishi continued to resist, the officer struck Lwishi twice more on the face

with an open hand, at which time Lwishi provided his hands.

         Another officer then arrived and assisted the first officer in searching

Lwishi. The second officer testified she had been “dispatched to a subject that

had been harassing some females” at the festival and that, upon her arrival, the

first officer informed her Lwishi was being arrested for punching him in the face.

Both officers testified that, because Lwishi continued to resist, they had to put

Lwishi forcibly into the patrol car.4 The first officer testified Lwishi yelled both

while being put in the car and after being secured.         Once at the jail, Lwishi

voluntarily exited the vehicle but had to be physically pulled inside the jail by the

officers and assisting deputies.      The officer testified Lwishi was offered the

opportunity to take a breathalyzer test multiple times but Lwishi did not elect to

do so.

         Lwishi was charged with assault of a peace officer causing bodily injury, in

violation of Iowa Code sections 708.1 and 708.3A(4) (2013), and interference

with official acts, in violation of section 719.1. At the close of the State’s case,

Lwishi moved for a judgment of acquittal, which the court denied. On the first

charge, the jury found Lwishi guilty of the lesser-included offense of assault on a

peace officer.     The jury found Lwishi guilty on the second charge.          Lwishi

appeals, alleging his trial counsel was ineffective, the trial court improperly

admitted certain testimony, and there was insufficient evidence to support a

finding of assault.


4
 Though the patrol car was equipped with cameras, the altercation happened at the side
of the patrol car not within the view of the recording equipment.
                                           5


       II.    Analysis

              A.      Ineffective Assistance of Counsel

       Ordinarily, ineffective-assistance-of-counsel claims are preserved for

postconviction-relief proceedings.     State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015).       “We prefer to reserve such questions for postconviction

proceedings so the defendant’s trial counsel can defend against the charge.” Id.

(quoting State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006)). “We will resolve the

claims on direct appeal only when the record is adequate.” Id. (quoting State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012)).

       On appeal, Lwishi contends his trial counsel was ineffective in failing to

allege a justification defense. Because we have an inadequate record to address

what consideration, if any, Lwishi’s counsel gave to such a claim, or whether

prejudice resulted, we preserve this claim for postconviction-relief proceedings.

See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (noting that, where the

record is inadequate to resolve a claim on direct appeal, “the court must preserve

[an ineffective-assistance-of-counsel claim] for a postconviction-relief proceeding,

regardless of the court’s view of the potential viability of the claim”).

              B.      Evidentiary Ruling

       Lwishi contends the district court erred in allowing the second responding

police officer to testify that, on the day in question, she was “dispatched to a

subject that had been harassing some females at the [festival].” He argues this

reference to the alleged harassment of females was irrelevant and should have

been excluded under Iowa Rule of Evidence 5.403 as unfairly prejudicial. See

Iowa R. Evid. 5.403 (“[R]elevant evidence may be excluded if its probative value
                                         6

is substantially outweighed by the danger of unfair prejudice . . . .”); State v.

Huston, 825 N.W.2d 531, 537 (Iowa 2013) (“We employ a two-part test to decide

whether evidence should be excluded under rule 5.403. First, we ‘consider the

probative value of the evidence.’      Second, we balance the probative value

‘against the danger of its prejudicial or wrongful effect upon the triers of fact.’”

(citations omitted)).

       “We review evidentiary rulings for abuse of discretion.”        Huston, 825

N.W.2d at 536. “An abuse of discretion occurs when the trial court exercises its

discretion ‘on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’” State v. Redmond, 803 N.W.2d 112, 117 (Iowa 2011) (citation

omitted). Nevertheless, “[a] trial court’s erroneous admission of evidence is only

reversed on appeal if ‘a substantial right of the party is affected.’” Id. at 127

(citation omitted); see also Iowa R. Evid. 5.103(a).       When the party claims

nonconstitutional error, as is the case here, “prejudice occurs when the party has

been injuriously affected by the error or has suffered a miscarriage of justice.” Id.

(internal quotation marks, alteration, and citations omitted).     Evidence that is

unfairly prejudicial “appeals to the jury’s sympathies, arouses its sense of horror,

provokes its instinct to punish, or triggers other mainsprings of human action that

may cause a jury to base its decision on something other than the established

propositions in the case.” State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988)

(citation omitted). If the erroneous evidentiary ruling does not cause prejudice,

the error is harmless. Id.
                                          7


        At issue here is a single reference made by a police officer to the context

in which she responded to a dispatch call. Even assuming that statement should

have been excluded under rule 5.403, we find any error was harmless.

              C.     Sufficiency of the Evidence5

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

law.”   State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).              “In reviewing

challenges to the sufficiency of evidence supporting a guilty verdict, courts

consider all of the record evidence viewed ‘in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence.’” Id. (citation omitted). We will uphold a verdict if it is supported by

substantial evidence. Id. “Evidence is considered substantial if, when viewed in

the light most favorable to the State, it can convince a rational jury that the

defendant is guilty beyond a reasonable doubt.” Id.

        Lwishi claims there was no evidence at trial that he intended to commit an

assault. At trial, a police officer testified Lwishi yelled at him, stood aggressively,

approached him, and struck him in the face with a closed fist. It is the jury’s

province to weigh the credibility of the witnesses. State v. Kostman, 585 N.W.2d

209, 211 (Iowa 1998) (“Generally, the credibility of witnesses is left to the

jury . . . .”). Further, “defendants will ordinarily be viewed as intending the natural

and probable consequences that ordinarily follow from their voluntary acts.”

State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003) (affirming the defendant’s

conviction for assaulting a peace officer, concluding the defendant’s “attempt to


5
 The State claims Lwishi failed to preserve error on this claim. We assume, without
deciding, that error was preserved.
                                          8


strike the officer was intended to place the officer in fear of immediate physical

contact, which would be painful, injurious, insulting, or offensive”). We find the

evidence was sufficient to support the jury’s verdict.

       AFFIRMED.
