                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0570
                                Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMY HEBERT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, Steven J.

Andreasen, Judge.



       Jeremy Hebert appeals his convictions for three counts of assault on a

peace officer with intent to inflict serious injury. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Alexandra Link

(until withdrawal), Assistant Attorneys General, for appellee.



       Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

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

       The State charged Jeremy Hebert with three counts of assault on a peace

officer with intent to inflict serious injury after he confronted three law

enforcement officers. See Iowa Code § 708.3A(1) (2013). A jury found him

guilty as charged. On appeal, Hebert contends the findings are not supported by

substantial evidence. See State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa

2014) (setting forth standard of review).

       The jury was instructed the State would have to prove the following

elements for each count:

               1. On or about the 20th day of November, 2014, in Plymouth
       County, lowa, Defendant Jeremy Hebert did an act which was
       specifically intended to:
                      a. result in physical contact which was insulting or
               offensive to [the officer]; or
                      b. place [the officer] in fear of immediate physical
               contact which would be painful, injurious, insulting, or
               offensive to him.
               2. Jeremy Hebert had the apparent ability to do the act.
               3. Jeremy Hebert had the specific intent to inflict a serious
       injury.
               4. [The officer] was a peace officer at that time.
               5. Jeremy Hebert knew [the officer] was a peace officer at
       the time he committed the act.

The jury was further instructed an “act” in element 1 was “an open and outward

act done in pursuance and manifestation of Mr. Hebert’s intent.” Jurors were

advised they could “consider statements made by Mr. Hebert” but “mere words

are not sufficient to establish an assault.” With respect to element 2, the jury was

instructed “‘[a]pparent ability’ means a reasonable person in Jeremy Hebert’s

position would expect the act to be completed under the existing facts and

circumstances.”
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       Hebert contends “the State failed to present sufficient evidence that

Hebert made an overt act, nor did they present sufficient evidence that he had

the apparent ability to act.” A reasonable juror could have found otherwise.

       Hebert called a 911 dispatcher and threatened to bomb the White House.

A sergeant with the Plymouth County sheriff’s office and two secret service

agents went to Hebert’s home to investigate the threat.           According to the

sergeant, Hebert was initially cordial, but when he learned of the nature of the

investigation, he became “belligerent, verbally hostile,” and “very confrontational.”

Hebert stated, “I’m going to fucking kill you,” and he pointed to each of the three

officers. One of the secret service agents asked Hebert to clarify whether he

indeed said he was going to kill a federal agent. Hebert said, “Yes, I am going to

kill federal agents.” Hebert was not restrained at the time. He challenged the

officers to fight outside and moved toward the door. One of the agents testified

Hebert was “prepared for a fight.” When the agent heard the threat, he became

“more concerned.”

       We conclude this evidence amounts to substantial evidence of an “act”

and the “apparent ability” to commit the act. See Copenhaver, 844 N.W.2d at

451-52 (finding substantial evidence to support the “overt act” element of assault

where defendant gave bank teller a note saying “this is a robbery,” forcefully

instructed her to give him money, and told her not to hit any buttons, causing her

legs to shake, and made similar threats to another teller); State v. Heard, 636

N.W.2d 227, 232 (Iowa 2001) (finding sufficient evidence of an overt act where

defendant entered a store in disguise, demanded money while in close proximity

to a clerk, took the money, and told her to lie down); State v. Sponsler, No. 13-
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0349, 2014 WL 956017, at *2 (Iowa Ct. App. Mar. 12, 2014) (finding sufficient

evidence to support finding of guilt for assault on a peace officer where

“Sponsler’s agitated demeanor and threatening conduct were intended to place

the deputies in fear of imminent physical contact, whether or not such contact

was made”). Accordingly, we affirm the jury’s findings of guilt.

       AFFIRMED.
