                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1247 / 13-0349
                              Filed March 12, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID JAY SPONSLER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lucas County, David L.

Christensen, Judge.



      A defendant appeals from his convictions for assault on a peace office and

second-degree harassment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary Triick, Assistant Attorney

General, and Paul M. Goldsmith, County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J

      David Sponsler appeals from the district court, arguing there was

insufficient evidence to support his convictions for assault on a peace officer

(Iowa Code sections 708.1(2) and 708.3A(4) (2011)) and harassment in the

second degree (Iowa Code sections 708.7(1)(b) and 708.7(3)).             The State

charged Sponsler with two counts of assaulting two Lucas County Sheriff

Deputies—count one referenced Deputy Brett Tharp and count two referenced

Deputy Clint Neis. The jury acquitted Sponsler of assaulting Tharp and convicted

him of assaulting Neis.

      We review challenges to the sufficiency of the evidence for
      correction of errors at law. If a verdict is supported by substantial
      evidence, we will uphold a finding of guilt. Substantial evidence is
      that upon which a rational trier of fact could find the defendant guilty
      beyond a reasonable doubt. The State must prove every fact
      necessary to constitute the crime with which the defendant is
      charged. The evidence must raise a fair inference of guilt and do
      more than create speculation, suspicion, or conjecture.               In
      conducting our review, we consider all the evidence in the record,
      that which is favorable as well as unfavorable to the verdict, and
      view the evidence in the light most favorable to the State.

State v. Neitzel, 801 N.W.2d 612, 624 (Iowa Ct. App. 2011) (internal citations and

quotation marks omitted).
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I.     Assault Against A Peace Officer.1

       Sponsler argues there was insufficient evidence to show he intended to

place Neis in fear of immediate physical contact or that he had the apparent

ability to do the act. Tharp was approaching Sponsler at his residence to discuss

threatening statements Sponsler had made earlier that day to Lucas County

Attorney Paul Goldsmith. As Tharp drove up to the house, Sponsler was seated

on a couch in the front yard.          Upon seeing an approaching police vehicle,

Sponsler got up and ran into the house. Tharp stopped in front of the house and

called Neis, who arrived less than a minute later to assist. Tharp believed he

already had sufficient cause to arrest Sponsler for harassment of Goldsmith.2

Both deputies were in the front yard approaching the house when Sponsler

exited the front door and stood before them on the porch. Tharp stood closest to

Sponsler, slightly in front of and to the left of Neis. Sponsler was about fifteen

feet away from the deputies.

       Tharp testified Sponsler appeared very agitated, was flexing the muscles

in his arms, pacing back and forth, staring at them, and talking on his phone.

Neis further testified Sponsler was raising his arms and clenching his fists as




1
  The jury instruction required the jurors to find:
        1. On or about the 6th day of June, 2012, the defendant did an act which
            was intended to place Clint Neis in fear of an immediate physical
            contact which would have been painful, injurious, insulting, or
            offensive to him.
        2. The defendant had the apparent ability to do the act.
        3. The defendant knew that Clint Neis was a peace officer.
The jury instruction for count I, assault on peace officer Brett Tharp, was identical
except for the substitution of his name.
2
  At the time of the trial, that charge also was pending.
                                        4



though taking a fighting stance, grinding his teeth, and staring at them

threateningly. They asked Sponsler to hang up and talk to them, attempting to

calm him down. Sponsler continued talking incoherently and obscenely. The

deputies were concerned for their safety and believed Sponsler was under the

influence of a substance or suffering from poor mental health. Tharp testified

Sponsler then raised his fists in a fighting posture and made several motions at

the deputies like lunges. Tharp stated, “I believed he was planning on charging

us[.]” Neis also stated Sponsler balled his fists in a fighting stance and began

lunging at them.    Neis further testified the predominant forward motion of

Sponsler’s lunge was in his upper body but his feet remained in the same

position. Nonetheless Neis testified he took a step backward in response to put

distance between himself and Sponsler and attempted to take a defensive

stance. In contrast, Tharp testified his response was to step forward and reach

for his Taser. On seeing this, Sponsler turned around and ran back into the

house. Tharp chased him and deployed the Taser, and Sponsler fell to the floor.

      “[I]ntent is seldom subject to direct proof[.]”   State v. Mayberry, 411

N.W.2d 677, 682 (Iowa 1987) (overruled on other grounds by State v. Heemstra,

721 N.W.2d 549 (Iowa 2006)).        “[D]efendants will ordinarily be viewed as

intending the natural and probable consequences which ordinarily follow from

their voluntary acts.” Id. Sponsler argues he did not intend to place the officers

in fear of imminent physical contact because he had been talking on the phone

and did not move his feet during the lunges. The deputies’ testimony shows that

Sponsler’s agitated demeanor and threatening conduct were intended to place
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the deputies in fear of imminent physical contact, whether or not such contact

was made.      Sponsler argues he had no ability to do the act threatened.

However, he was separated from the deputies by only about fifteen feet with no

obstacles or restraints between them.

       We find the evidence sufficient for a rational finder of fact to conclude

Sponsler was guilty of assault on a peace officer.           Therefore, substantial

evidence supports the jury’s conclusion finding Sponsler guilty, and we uphold

the verdict.

       Sponsler complains the jury found him guilty of assaulting Neis but not

Tharp, although Tharp was standing closer, and argues this shows there was

insufficient evidence to convict him on either count. Iowa courts ordinarily will not

overturn inconsistent verdicts unless they are “so logically and legally

inconsistent as to be irreconcilable within the context of the case.”       State v.

Flintel, 689 N.W.2d 95, 100 (Iowa 2004). In State v. Halstead, 791 N.W.2d 805,

814 (Iowa 2010), our supreme court found, “[I]n a case involving conviction of a

compound felony[,] when the defendant is acquitted of the underlying predicate

crime, the conviction cannot stand.” The supreme court carefully limited its ruling

to the “legal impossibility of convicting a defendant of a compound crime while at

the same time acquitting the defendant of predicate crimes.”         Halstead, 791

N.W.2d at 815. We do not know why the jury convicted Sponsler of assaulting

Neis but not Tharp, nor will we speculate. See id. However, this case does not

involve a conviction for a compound offense with an acquittal for one of its
                                             6



predicates. Nor are the verdicts “so logically and legally inconsistent as to be

irreconcilable[.]” See Flintel, 689 N.W.2d at 100.

II.      Harassment in the Second Degree.3

         Sponsler next contends there was insufficient evidence for his conviction

for harassment in the second degree. He argues he acted with a legitimate

purpose and in a manner not likely to cause annoyance or harm. After Sponsler

was incapacitated by the Taser, the deputies placed him in handcuffs and called

an ambulance to transport him to the hospital for a mental health evaluation.

When the ambulance arrived, the deputies placed Sponsler in the back, and the

paramedics checked on him. During this time, Neis was closest to Sponsler, and

Sponsler remained cooperative.            The owner of the residence with whom

Sponsler lived, Patricia Schultz, then arrived at the scene and began speaking

with Sponsler, who was still in the ambulance. Tharp stated, “[S]he became

agitated and started making Mr. Sponsler more agitated, so we asked her to

leave.” Tharp testified that Neis placed his hand on Schultz’s arm, and Sponsler

“began to yell obscenities[.]” He stated Sponsler said to Neis, “I’m going to kick

your ass.” Neis testified he tapped Schultz on the shoulder to get her attention

and to ask her to leave the scene.               She pulled away and began yelling

obscenities at Neis.        Neis stated Sponsler approached the opening of the



3
    The jury instruction required the jurors to find:
          1. On or about the 6th day of June, 2012, the defendant communicated
              with Clint Neis, without a legitimate purpose, in a manner likely to
              cause him annoyance or harm.
          2. The defendant communicated a threat to commit bodily injury.
          3. The defendant did so with the specific intent to intimidate, annoy, or
              alarm Clint Neis.
                                          7



ambulance door and “threatened to assault me if I touched Patricia Schultz

again.” Neis could not recall the exact words Sponsler used. Schultz testified

Neis “shoved” her. She also stated Sponsler said, “Keep your hands off of her,”

but did not say anything more.

       Sponsler argues he spoke with a legitimate purpose of communicating

that he did not want Neis to touch Schultz and the harassment statute restrained

his exercise of free speech. In State v. Fratzke, 446 N.W.2d 781, 784 (Iowa

1989), our supreme court found the harassment statute does not violate free

speech when it restrains “fighting words,” defined as “personally abusive epithets

which by their very utterance inflict injury or tend to incite an immediate breach of

the peace.” Further, “[t]he Fratzke court recognized that the harassment statute

contains a ‘constitutional safety valve’ so as not to punish mere unpopular

speech.” State v. Button, 622 N.W.2d 480, 485 (Iowa 2001) (internal citation

omitted).   “That safety valve is the requirement that the threat be ‘without

legitimate purpose’ to be actionable as harassment.” Id. Even if Sponsler had a

legitimate purpose in defending his friend by stating “keep your hands off of her,”

a rational trier of fact could find the threatening statement, “I’m going to kick your

ass,” had no legitimate purpose in these circumstances.

       Sponsler further argues the statement was made in a manner not likely to

cause annoyance or harm.         He states he was “simply communicating his

displeasure” at Neis’s statement to Schultz. He further asserts, “[n]or was there

a danger of harm” because Sponsler was handcuffed and could not carry out an
                                          8



assault.     However, Sponsler made this threatening statement in a state of

agitation while the deputies were attempting to dispatch him to the hospital.

          We find that a rational trier of fact could find Sponsler made a

communication of intent to cause bodily injury to Neis, in a manner likely to cause

Neis annoyance, and did so with specific intent to intimidate, annoy, or alarm

Neis. Thus, substantial evidence supports the jury’s conclusion finding Sponsler

guilty of harassment, and we uphold the verdict.

III.      Conclusion.

          The evidence is sufficient for a rational trier of fact to find Sponsler

intended to place Neis in fear of imminent physical contact and Sponsler had the

apparent ability to do the assaultive act. The evidence is also sufficient to show,

by threatening Neis physically, Sponsler acted without a legitimate purpose and

in a manner likely to cause Neis annoyance or harm. Consequently, the jury

verdicts are supported by substantial evidence, and we uphold them. We uphold

the verdicts notwithstanding the alleged inconsistency because this case does

not involve the logical and legal inconsistency contemplated in Halstead. We

affirm.

          AFFIRMED.
