                     IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0148
                                  Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL WEDGWOOD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel E.

Dalrymple, Judge.



      Michael Wedgwood appeals his conviction and sentence for assault on a

peace officer and interference with official acts resulting in bodily injury.

CONVICTIONS         AFFIRMED,      SENTENCE       VACATED    IN   PART,   AND

REMANDED.



      Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., Ahlers, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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VOGEL, Senior Judge.

       Michael Wedgwood appeals his conviction and sentence for assault on a

peace officer and interference with official acts resulting in bodily injury. He argues

the district court erred in instructing the jury and in ordering restitution without

considering his reasonable ability to pay. We affirm his convictions, vacate the

restitution order, and remand for resentencing.

       I.     Background Facts and Proceedings.

       On the evening of October 17, 2017, Officer Alexander Bovy with the

Waterloo Police Department was on patrol while wearing his police uniform and

driving a fully marked police vehicle. Shortly before midnight, he initiated a traffic

stop on a vehicle with a non-functioning headlight. He walked to the driver’s side

of the vehicle and found two occupants, later identified as Michael Wedgwood in

the driver’s seat and his brother Jonathan Wedgwood in the front passenger seat.

When Officer Bovy looked into the vehicle, he saw a handgun in plain view

between Michael’s right leg and the center console. Officer Kyle Jurgensen, who

was also wearing his police uniform and driving a fully marked police vehicle,

arrived to assist.

       Officer Bovy instructed Michael to exit the vehicle. Michael stepped out of

his vehicle, allowed Officer Bovy to pat him down, and waited behind his vehicle

as instructed without issue. Next, Officer Jurgensen instructed Jonathan to exit

the vehicle with his hands in front of him. Jonathan reached toward his midsection

as he moved, so Officer Jurgensen grabbed Jonathan’s hands and physically

directed him out of the vehicle.      Michael approached Officer Jurgensen and

Jonathan, but he stepped back when Officer Bovy told him to do so. Officer
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Jurgensen then placed Jonathan in handcuffs to detain him for safety.              The

Wedgwoods began questioning the officers’ actions, and the officers answered,

stating their legal authority for stopping and investigating them. Officer Jurgensen

tried to pat down Jonathan, but Jonathan resisted and turned away. In response,

Officer Jurgensen braced Jonathan against the vehicle to complete the pat down.

Michael moved toward the two and verbally refused Officer Bovy’s command to

step back. Officer Bovy attempted to place Michael in handcuffs to detain him, but

Michael pulled away and hit Officer Bovy in the shoulder. Michael continued to

struggle with Officer Bovy, which resulted in injury to the officer’s thumb. Officer

Jurgensen eventually used a stun gun on Michael before the officers could

physically detain and arrest both Michael and Jonathan.

       Michael and Jonathan faced criminal charges from the encounter and were

tried together before a jury beginning November 27, 2018. The jury found Michael

guilty of assault on a peace officer and interference with official acts resulting in

bodily injury.1 The court sentenced him to a 180-day term of incarceration with all

but ten days suspended for each count, run concurrently, plus restitution. He now

appeals.

       II.    Standard of Review

       “[W]e review challenges to jury instructions for correction of errors at law.”

State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018) (quoting Alcala v. Marriott Int’l,

Inc., 880 N.W.2d 699, 707 (Iowa 2016)). “We also ‘review refusals to give a



1As a codefendant in the same trial, Jonathan was convicted of assault on a peace
officer, interference with official acts resulting in bodily injury, and possession of a
controlled substance (marijuana). Jonathan is not party to this appeal.
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requested jury instruction for correction of errors at law.’” Id. at 242 (quoting Alcala,

880 N.W.2d at 707). “We review restitution orders for correction of errors at law.”

State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019).

       III.    Jury Instructions

       Michael’s proposed jury instructions included language on the justification

of self-defense and defense of others. See Iowa Code § 704.3 (2017) (“A person

is justified in the use of reasonable force when the person reasonably believes that

such force is necessary to defend oneself or another from any actual or imminent

use of unlawful force.”). Most significantly, he proposed the following instruction

on justification:

               The defendant claims he acted with justification.
               A person may use reasonable force to prevent injury to a
       person, including the defendant.
               The use of this force is known as justification.
               Reasonable force is only the amount of force a reasonable
       person would find necessary to use under the circumstances to
       prevent injury.
               The State must prove the defendant was not acting with
       justification.

The district court rejected Michael’s language, ruling not enough evidence had

been offered to support his proposed instructions. Instead, the court adopted

Instruction No. 31 on the use of force while being detained or arrested:

       A person is not authorized to use force to resist an arrest or
       detention, either of the person’s self, or another which the person
       knows is being made by a peace officer, even if the person believes
       that the arrest or detention is unlawful or the arrest or detention is in
       fact unlawful.
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       The jury found Michael guilty of assault on a peace officer2 and interference

with official acts resulting in bodily injury. 3 Michael asserts the district court erred

in submitting this language to the jury and rejecting his language on justification.

       “Erroneous jury instructions warrant ‘reversal when prejudice results.’”

Benson, 919 N.W.2d at 241 (quoting State v. Coleman, 907 N.W.2d 124, 138 (Iowa

2018)). “Prejudice results when jury instructions mislead the jury or materially

misstate the law.” Id. at 241–42. We consider the jury instructions as a whole

rather than in isolation to determine whether they correctly state the law. State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

       Police officers may stop a vehicle and detain its occupants if they have

“reasonable suspicion that its occupants are involved in criminal activity.” State v.

Pals, 805 N.W.2d 767, 774 (Iowa 2011). The police power to detain carries a right

to use reasonable force if necessary. See State v. DeWitt, 811 N.W.2d 460, 469

(Iowa 2012) (in the context of evaluating the reasonableness of a seizure, stating

“the force used to detain a suspect during an investigatory stop must be limited to

what is necessary to accomplish the goals of the detention”); State v. Ceaser, 585

N.W.2d 192, 194–95 (Iowa 1998) (evaluating the “reasonable force” a merchant

may use to detain a suspected shoplifter under section 808.12), overruled on other

grounds by State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009). “In general, to


2 An assault “committed against a peace officer . . . by a person who knows that
the person against whom the assault is committed is a peace officer . . . is a serious
misdemeanor.” Iowa Code § 708.3B(4).
3 “A person commits interference with official acts when the person knowingly

resists or obstructs anyone known by the person to be a peace officer . . . in the
performance of any act which is within the scope of the lawful duty or authority of
that officer . . . .” Iowa Code § 719.1(1)(a). Interference with official acts resulting
in bodily injury is a serious misdemeanor. Id. § 719.1(1)(c).
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be reasonable, the force applied must be proportionate to the need for the force

raised by the circumstances.” DeWitt, 811 N.W.2d at 469–70.

       The record here, including videos from the officers’ body cameras and

police vehicles, shows the officers’ use of force was proportionate at all times.

After Officer Bovy noticed the handgun in the vehicle, he began to investigate

whether Michael lawfully possessed the weapon. He ordered Michael to exit his

vehicle, submit to a pat down, and stand behind his vehicle, to which Michael

complied without incident. Officer Jurgensen then ordered Jonathan to exit his

vehicle, removing Jonathan from the vehicle only after Jonathan dropped and

moved his hands towards his waistband or middle area of his crotch area in

violation of the officer’s direction to “keep his hands out in front of him.” After

Jonathan resisted a pat down search, Officer Jurgensen braced him against the

car. When Michael verbally refused an order to remain behind his vehicle and

advanced toward Officer Jurgensen and Jonathan, Officer Bovy attempted to use

force to detain Michael. Michael physically resisted the detainment, which resulted

in the injury to Officer Bovy and the use of the stun gun on Michael. Under these

facts, there is no basis for Michael to reasonably believe force was necessary to

defend himself or others from the officers’ proportionately escalating use of force

in effectuating the investigatory stop. State v. Rains, 574 N.W.2d 904, 916 (Iowa

1998) (“Until Rains accelerated the vehicle, the encounter [with the officer] had

been routine and professional. It was only when Rains accelerated and attempted

to throw [the officer] from the vehicle that [the officer] responded with force in an

attempt to save himself.”), overruled on other grounds by State v. Williams, 895
                                          7


N.W.2d 856, 863–67 (Iowa 2017). Therefore, the district court did not err in

rejecting Michael’s language on justification from the jury instructions.

       Regarding Instruction No. 31, Michael asserts this language relates to

section 804.12, which prohibits the use of force during arrest but does not mention

detention.4 Even if we were to conclude that section 804.12 does not apply to

Michael’s conduct during detention and prior to his arrest, no prejudice resulted

from presenting this instruction. As explained above, the record contains no basis

to conclude Michael’s use of force was reasonable in response to the officers’

actions. See State v. Bedard, 668 N.W.2d 598, 600 (Iowa 2003) (“[E]ven if . . .

section 804.12 does not apply to an investigatory stop, Bedard was not authorized

to attempt to strike the officer.”).

       IV.     Restitution

       In its sentencing order, the district court ordered Michael to pay restitution.5

He argues the court erroneously imposed restitution without considering his

reasonable ability to pay.

       A court should make every effort to determine an offender’s financial
       condition as early as possible. This may require the offender filing an
       updated financial statement, a colloquy with the offender, or both. A
       court cannot impose restitution on an offender for the items subject
       to the offender’s reasonable ability to pay if the offender does not
       have a reasonable ability to pay those items.



4 Iowa Code section 804.12 states:
       A person is not authorized to use force to resist an arrest, either of
       the person’s self, or another which the person knows is being made
       either by a peace officer or by a private person summoned and
       directed by a peace officer to make the arrest, even if the person
       believes that the arrest is unlawful or the arrest is in fact unlawful.
5 The restitution order included court-appointed attorney fees. During sentencing,

Michael’s attorney said he was privately retained.
                                          8

Albright, 925 N.W.2d at 160. Our review of the record shows no indication the

court followed this procedure or determined Michael has the reasonable ability to

pay restitution.6 The State’s assertion that the court implicitly found Michael has

the reasonable ability to pay does not satisfy Albright. Therefore, we vacate that

part of the sentencing order and remand.

        V.       Conclusion

        The court did not err in presenting jury instructions without reference to

justification.   However, the court erred in ordering restitution without properly

considering Michael’s reasonable ability to pay.         Therefore, we affirm his

convictions, vacate the restitution order, and remand for resentencing on

restitution.

        CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.




6We note the district court issued the sentencing order prior to Albright and did not
have the benefit of the case and its progeny. See generally State v. Gross, 935
N.W.2d 695, 702 (Iowa 2019) (“We have since applied Albright in a number of
cases.”).
