                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1567
                            Filed November 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LON ROBERT TULLAR,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



       Lon Tullar appeals his conviction and sentence on one charge of assault

on a peace officer. AFFIRMED.



       Lon R. Tullar, Ankeny, appellant pro se.

       Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, John P. Sarcone, County Attorney, and Justin Allen, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                           2


POTTERFIELD, J.

       Lon Tullar appeals his conviction and sentence on one charge of assault

on a peace officer.

       I. Factual and Procedural Background

       After dark on February 5, 2013, a police officer responded to a call

reporting a man walking in the traffic lane of the highway. The officer found

Tullar walking in the traffic lane as reported, pulled his patrol car over, and asked

Tullar to step out of the road. The two had a short conversation on the side of

the road in which Tullar was uncooperative.          After conversing for about one

minute, Tullar suddenly lunged towards the officer, reaching for the officer’s neck

or shoulders with both hands. The officer was surprised but reacted quickly,

pushing Tullar’s hands away from him. He then immediately placed Tullar under

arrest. The officer’s dash camera captured video footage of the incident.

       On June 4, 2013, Tullar was found guilty by a jury—which viewed the

video of the incident—of assault on a peace officer pursuant to Iowa Code

section 708.3A(4) (2011).1 Sentencing was scheduled for July 16, 2013. Tullar

requested a continuance of the sentencing twice, and both requests were

granted. He filed a motion in arrest of judgment and a motion for a new trial on

September 27, 2013. Sentencing and a hearing on the motions occurred on

October 4, 2013. The court orally denied the motions and sentenced Tullar to a


1
  “[A]ssault, as defined in section 708.1, 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 § 708.3A(4). “A person commits an
assault when, without justification, the person does . . . [a]ny act which is intended to
cause pain or injury to, or which is intended to result in physical contact which will be
insulting or offensive to another, coupled with the apparent ability to execute the
act . . . .” Iowa Code § 708.1.
                                          3


sixty-day term with all but ten days suspended, one year of probation, a fine, and

court costs. The written sentencing order was filed that same day without any

mention of the posttrial motions, and Tullar filed his notice of appeal. The district

court then issued a written ruling summarily denying the posttrial motions on

November 22, 2013. Tullar filed a second notice of appeal from the written

ruling. Our supreme court granted his motion to join the two appeals into the

single appeal that is now before us.

       II. Scope and Standard of Review

       Questions of jurisdiction are reviewed for errors at law. State v. Formaro,

638 N.W.2d 720, 724 (Iowa 2002).

       We review the district court’s denials of the motion in arrest of judgment

and the motion for a new trial for abuse of discretion. State v. Smith, 753 N.W.2d

562, 564 (Iowa 2008); State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). A

district court abuses its discretion when it exercises its discretion on grounds

clearly untenable or unreasonable. Smith, 753 N.W.2d at 564.

       Tullar challenges the denial of his motion for a new trial on all five discrete

bases upon which the motion was presented to the trial court. We review each

basis on its applicable standard of review. If any of the bases reveal the district

court erred, the denial of the motion was an abuse of discretion because an

erroneous application of the law renders a ruling untenable. See id.

       Tullar’s first two claims allege errors at law. We review his claim that the

verdict was contrary to the weight of the evidence for abuse of discretion. Id. His

challenge to jury instructions is reviewed for errors at law. State v. Becker, 818

N.W.2d 135, 140 (Iowa 2012). Insofar as he claims the trial court should have
                                           4

given a different and particular instruction, we review for abuse of discretion. Id.

Insofar as the jury instruction challenge concerns the defendant’s constitutional

rights, we review de novo. Id. at 141. Tullar’s final basis for his motion for a new

trial is a deprivation of a fair and impartial proceeding due to an alleged violation

of his constitutional rights. We review claims of constitutional violations de novo.

State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010).

       We review a challenge to the legality of a sentence for errors at law.

Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).

       III. Discussion

       A. Written Ruling on Posttrial Motions

       First, both parties assert the district court lacked jurisdiction to enter its

November 22, 2013 order because a notice of appeal had already been filed on

October 4, 2013. “Generally, an appeal divests a district court of jurisdiction.”

State v. Mallett, 677 N.W.2d 775, 777 (Iowa 2004). Because the written order

simply confirmed the previous oral order, without modification or explanation, the

district court was permitted to enter the order to complete the court file. See id.

(holding district court retains jurisdiction to modify a restitution order after a notice

of appeal has been filed). In reviewing the district court’s disposition on the

posttrial motions, we rely on its oral denials as confirmed by the written order.
                                             5


       B. Motion in Arrest of Judgment2

       A motion in arrest of judgment “shall be granted when upon the whole

record no legal judgment can be pronounced.”               Iowa R. Crim. P. 2.24(3)(a).

Tullar claims no legal judgment can be pronounced due to a “lack of credible

substantial evidence.”3      Substantial evidence is that which would convince a

rational fact finder of the defendant’s guilt beyond a reasonable doubt. State v.

Williams, 695 N.W.2d 23, 27 (Iowa 2005). We find the video recording of the

incident and the officer’s testimony constitute substantial evidence to support the

guilty verdict. Tullar’s claim that the record does not support a finding that he

injured or intended to injure the officer is not persuasive. Tullar needed only to

intend to make physical contact with the officer if that contact would be insulting

or offensive.     The recording makes clear that the contact was intentional,

belligerent, and insulting or offensive. We affirm the denial of the motion in arrest

of judgment.




2
  The State asserts Tullar has not preserved error on his motion in arrest of judgment
and motion for a new trial because the motions were not filed timely. However, because
the district court issued a ruling on the merits of the motions, they are now properly
before us. “Where the trial court’s ruling, as here, expressly acknowledges that an issue
is before the court and then the ruling necessarily decides that issue, that is sufficient to
preserve error.” Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). We therefore
consider the merits of Tullar’s claims on appeal.
3
  Iowa cases have held “[a] motion in arrest of judgment may not be used to challenge
the sufficiency of the evidence.” See State v. Dallen, 452 N.W.2d 398, 398 (Iowa 1990).
However, there is some indication in our jurisprudence that a motion in arrest of
judgment is to be reviewed on appeal for “substantial evidence supporting the findings
and conclusion reached by the trial court.” State v. Hellickson, 162 N.W.2d 390, 394
(Iowa 1968).
                                           6


       C. Motion for New Trial

       Tullar asserts five grounds upon which the district court should have

granted his motion for a new trial.

       1. Error at Law. Tullar first claims the district court should have granted

his motion for a new trial based on legal error. Iowa Rule of Criminal Procedure

2.24(2)(b)(5) permits defendants to move for a new trial “[w]hen the court has

erred in the decision of any question of law during the course of the trial.” He

asserts the district court erred at law by denying his two motions for judgment of

acquittal made at trial, one after the State’s case in chief and the second

following Tullar’s evidence.

       The district court did not err in denying the motions for judgment of

acquittal since there was substantial evidence before the jury to support a finding

of guilt. See Williams, 695 N.W.2d at 28 (“Evidence is sufficient to withstand a

motion for judgment of acquittal when . . . there is substantial evidence in the

record to support a finding of the challenged element.”).4 Because the district

court did not err in its rulings on the motions for judgment of acquittal, it properly

denied the motion for a new trial based on the assertion of such an error.

       2. Verdict Contrary to Law. Tullar next claims the district court should

have granted his motion for a new trial because the verdict was contrary to the


4
  In his brief, Tullar conflates the weight-of-the-evidence standard employed to evaluate
motions for a new trial with the sufficiency-of-the-evidence standard—i.e. substantial
evidence—used to evaluate motions for judgment of acquittal. Compare State v.
Nitcher, 720 N.W.2d 547, 559 (Iowa 2006) (remanding for application of the weight-of-
the-evidence standard to a motion for a new trial), with Williams, 695 N.W.2d at 28
(reviewing denial of motion for judgment of acquittal using the sufficiency-of-the-
evidence standard). We must apply the sufficiency-of-the-evidence standard to
determine whether an error of law occurred in the district court’s denial of Tullar’s
motions for judgment of acquittal.
                                            7


law. Rule 2.24(2)(b)(6) permits defendants to move for a new trial “[w]hen the

verdict is contrary to law or evidence.”5 The phrase “contrary to law” means

“contrary to principles of law as applied to facts or issues which the jury was

called upon to try.”     State v. Still, 208 N.W.2d 887, 890 (Iowa 1973).            “Our

function is merely to determine whether the correct legal standards have been

applied to [the] facts.” State v. Irvin, 334 N.W.2d 312, 315 (Iowa Ct. App. 1983).

       Tullar asserts the jury’s verdict was contrary to the legal requirement of

specific intent.6 We find the verdict is consistent with the jury’s conclusion that

Tullar committed an assault by acting with specific intent to make physical

contact that would be either insulting or offensive. There is no evidence the jury

did not understand the jury instruction regarding specific intent or failed to apply it

correctly. The district court properly denied the motion for a new trial based on a

verdict contrary to law.

       3. Verdict Contrary to Evidence.          Tullar also claims the verdict was

contrary to the evidence, which our supreme court has interpreted to mean a

verdict that is “contrary to the weight of the evidence.” Reeves, 670 N.W.2d at

202. The weight of the evidence is determined by considering all the evidence

as well as the credibility of witnesses. Id. When taken together, if “a greater

5
  Our jurisprudence considers a verdict contrary to law with far less frequency than one
contrary to the weight of the evidence. In his argument about the verdict running
contrary to the law, Tullar only cites case law regarding a verdict contrary to evidence.
6
  “[T]he crime of assault includes a specific intent element.” State v. Fountain, 786
N.W.2d 260, 265 (Iowa 2010).              The jury was instructed: “‘[S]pecific intent’
means . . . [acting] was a specific purpose in mind.” According to the jury instructions on
the relevant element of the crime, the jury could have found specific intent satisfied in
any one of four ways: Tullar acted with intent to (1) cause pain; (2) cause injury;
(3) make insulting physical contact; or (4) make offensive physical contact. The jury was
further instructed to “consider the facts and circumstances surrounding the act to
determine the defendant’s specific intent.” It was further instructed, “You may, but are
not required to, conclude a person intends the natural results of his or her acts.”
                                           8


amount of credible evidence supports one side of an issue or cause than the

other,” the court should grant a motion for new trial. Id.

       The video recording of the incident and the testimony of the officer

constitute ample credible evidence that weighs in favor of the jury’s verdict.

Tullar did not testify but asserts on appeal the record demonstrates he lacked

intent to cause harm to the officer and experienced an involuntary loss of

balance. Intent to cause harm is not a necessary element of the crime, and the

video recording belies his claim of loss of balance. The district court did not

abuse its discretion in denying the motion for a new trial on this basis of the

weight of the credible evidence.

       4. Jury Instruction. Tullar next contends the district court was required to

grant his motion for a new trial because it declined to instruct the jury according

to the reasonable doubt jury instruction he proposed. He claims the instruction

given, which was the former uniform jury instruction on reasonable doubt, was

constitutionally infirm—a violation of his due process guarantees of the United

States Constitution. Rule 2.24(2)(b)(7) permits defendants to move for a new

trial “[w]hen the court has refused properly to instruct the jury.”

       “[T]he court is not required to give any particular form of an instruction;

rather, the court must merely give instructions that fairly state the law as applied

to the facts of the case.” State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010). “Our

review is to determine whether the challenged instruction accurately states the

law and is supported by substantial evidence.” State v. Hanes, 790 N.W.2d 545,
                                              9


548 (Iowa 2010).7 “When reviewing jury instructions, we consider them as a

whole, not separately.” Becker, 818 N.W.2d at 141.

       The reasonable doubt instruction given to the jury in this case fairly and

accurately states the law as applied to the facts of this case.8 Our supreme court

has explicitly found the instruction used to be proper. See State v. Frei, 831

N.W.2d 70, 78–79 (Iowa 2013). The court was under no obligation to accept

Tullar’s proposed instruction or include any particular language in its final

instruction. The district court properly denied the motion for a new trial on the

basis of allegedly infirm jury instructions.

       5. Fair Trial. Tullar’s final argument regarding his motion for a new trial is

that he was denied a fair trial. Rule 2.24(2)(b)(9) permits defendants to move for

a new trial when “the defendant has not received a fair and impartial trial.” Tullar

asserts the officer violated his state and federal constitutional protections against




7
  Tullar misrepresents the law when he claims the State must prove a lack of prejudice
beyond a reasonable doubt. It is true “[w]hen an error is of a constitutional dimension,
the State must show beyond a reasonable doubt the error did not result in prejudice.”
Hanes, 790 N.W.2d at 550. However, Tullar must first establish a predicate error before
the burden shifts to the State. If the jury instruction is not legally erroneous, the question
of prejudice is not raised. See id. (finding the jury instruction improper, then considering
whether prejudice resulted from the improper instruction). The State has no obligation to
demonstrate a lack of prejudice in this case because the instruction was not erroneous.
8
  The jury instruction on reasonable doubt stated:
            The burden is on the State to prove the defendant guilty beyond a
        reasonable doubt.
            A reasonable doubt is one that fairly and naturally arises from the
        evidence in the case, or from the lack or failure of evidence produced by
        the State. If, after a full and fair consideration of all the evidence, you are
        firmly convinced of the Defendant’s guilt, then you have no reasonable
        doubt and you should find the Defendant guilty.
            But if, after a full and fair consideration of all the evidence or lack of
        evidence produced by the State, you are not firmly convinced of the
        Defendant’s guilt, then you have a reasonable doubt and you should find
        the Defendant not guilty.
                                             10

unreasonable seizures during the incident on February 5, 2013. See U.S. Const.

amend. IV; Iowa Const. art. 1, § 8.

       Tullar’s argument fails to bridge the gap between an allegation of a

constitutional violation by the officer and the fairness and impartiality of the trial

proceeding afforded to him by the district court.9 He asserts the officer subjected

him to an unconstitutional seizure when the officer stopped him and asked him to

step out of the road. He argues the seizure was a violation of his “constitutional

right to privacy” but cites no case law to support his characterization of the

incident. He failed to raise this argument at trial and includes in his motion for

new trial the bare assertion that the officer’s alleged violation of his constitutional

protections renders his trial proceeding unfair.

       The trial record shows Tullar had the benefit of a fair and impartial

proceeding. The trial court properly denied the motion for a new trial based on

this previously unasserted allegation of a violation of Tullar’s constitutional “right

to privacy.”

       None of Tullar’s five arguments on his appeal of the denial of his motion

for a new trial demonstrate any erroneous application of the law that would

render the denial untenable.         The district court therefore did not abuse its

discretion by denying the motion for a new trial. We affirm.



9
  The State, in an attempt to reconcile Tullar’s constitutional claim with his assertion of
an unfair trial, hypothesized that Tullar intended to claim the alleged constitutional
violation necessitated suppression of vital evidence, the admission of which resulted in
an unfair trial. In his reply, Tullar denies this is the nature of his claim but nevertheless
fails to elucidate how the alleged constitutional violation had an effect on the fairness of
the trial. Tullar raised no constitutional claim against the officer at trial. A motion for a
new trial is not the proper vehicle in which to raise a general and untimely issue of
unreasonable seizure.
                                          11


       D. Legality of Sentence

       Lastly, Tullar challenges the district court’s sentence. He first asserts the

district court’s oral sentencing is inconsistent with the written judgment entry.

After careful review of Tullar’s appellate brief and reply brief, we note he has not

in fact identified any discrepancies between the two.          The written judgment

reflects the same sentence imposed orally: incarceration not to exceed sixty

days, all but ten days suspended, one year of probation, a fine, and court costs.

The oral and written sentences are consistent.

       Tullar further alleges the district court’s sentence is illegal because it was

partially predicated upon the provision of “reasonable protection of the public and

an opportunity for any rehabilitation.” He claims there is no evidence he poses a

danger to the public, but he fails to recognize that the assault of a police officer

itself gives credence to the district court’s reasoning. The sentence imposed was

well within the statutory limit and is affirmed.

       IV. Conclusion

       We affirm the district court. The district court’s written ruling on Tullar’s

posttrial motions stands to confirm its oral ruling. It did not abuse its discretion in

denying Tullar’s motion in arrest of judgment and motion for a new trial, nor was

its sentence contrary to the law.

       AFFIRMED.
