                       IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0719
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN CHARLES MCPHERSON II,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



       John McPherson appeals his conviction for assault on a police officer.

AFFIRMED.



       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



       Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.

       John McPherson was charged by trial information with assault on a police

officer causing bodily injury, in violation of Iowa Code section 708.3A (2016),1

following a scuffle with Special Agent Todd Monney of the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) that occurred in a Sergeant Bluff Police

Department interview room. A jury found McPherson guilty of the lesser-included

charge of assault on a police officer.2

       On appeal, McPherson challenges the sufficiency and weight of the

evidence. Viewing the evidence in the light most favorable to the State, we find

ample evidence to affirm the verdict. In addition, we see no abuse of discretion in

the district court’s determination the greater weight of credible evidence supported

the verdict.

       I. Proceedings. At the end of the trial, defense counsel made a motion for

judgment of acquittal. He argued, “The evidence is clear that no contact was

actually made with Agent Monney. Even if the actions of Mr. McPherson were to

be construed as an assault, it is clear that those actions did not result in any kind

of bodily injury.”   The State resisted.       The district court denied the motion,

commenting, “Well, I believe I saw touching. We heard testimony about touching.


1
  Assault on a police officer causing bodily injury is an aggravated misdemeanor. See
Iowa Code § 708.3A(3). McPherson was also charged by the same trial information with
possession with intent to deliver a controlled substance, a drug-tax-stamp violation, and
carrying a dangerous weapon. The drug charges were dismissed on the State’s motion
because a laboratory report indicated the seized substance was not a controlled
substance. The carrying-a-dangerous-weapon charge was tried to a jury with the assault-
on-a-police-officer charge. The jury found McPherson guilty of the weapons charge and
he does not appeal that conviction.
2
  Assault on a police officer is a serious misdemeanor. See Iowa Code § 708.3A(4).
McPherson was sentenced to 191 days in jail with credit for the 191 days McPherson had
spent in the Woodbury County Jail, plus a fine, surcharges, and costs.
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We heard testimony of cause. It’s up to the jury to decide whether this happened.

And I believe there’s sufficient evidence to submit [the assault-on-a-police-officer

charge].”

       After deliberating, the jury found McPherson guilty of the lesser-included

charge of assault on a police officer. McPherson filed posttrial motions—a motion

for new trial and a motion in arrest of judgment—asserting the same arguments he

previously raised to the court. The court denied the motions.

       II. Sufficiency of the Evidence.        “Sufficiency of evidence claims are

reviewed for correction of errors at law, and we will uphold a verdict if substantial

evidence supports it.” State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). On a

challenge to sufficiency of evidence, we assess the record in the light most

favorable to the State, including all reasonable inferences that we may fairly draw

from the evidence. See State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). We

will uphold a jury’s verdict if it is supported by substantial evidence. See id.

Evidence is substantial when a reasonable jury could rely on it to find the defendant

guilty beyond a reasonable doubt. See id. Evidence is not substantial if it raises

only suspicion, speculation, or conjecture. See id.      “Inherent in our standard of

review of jury verdicts in criminal cases is the recognition that the jury [is] free to

reject certain evidence and credit other evidence.” State v. Nitcher, 720 N.W.2d

547, 556 (Iowa 2006).

       A person commits assault on a peace officer when the person commits an

assault “as defined in section 708.1 . . . against a peace officer” and the person

knows that the other person is a peace officer. See Iowa Code § 708.3A(2).

Section 708.1(2) provides, in relevant part:
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              A person commits an assault when, without justification, the
       person does any of the following:
              a. Any act which is intended to cause pain or injury to, or which
       is intended to result in physical contact which will be insulting or
       offense to another, coupled with the apparent ability to execute the
       act.
              b. Any act which is intended to place another in fear of
       immediate physical contact which will be painful, injurious, insulting,
       or offensive, coupled with the apparent ability to execute the act.

Relevant to the issues raised in this appeal, the jury was instructed:

               The State must prove all of the following elements of Assault
       on a Peace Officer Causing a Bodily Injury in Count 1 of the Trial
       Information:
               1. On or about the 20th day of October, 2016, the defendant
       did an act which was specifically intended to:
               a. cause pain or injury to Todd Monney;
               b. result in physical contact which was insulting or offensive
       to Todd Monney; or
               c. place Todd Monney in fear of an immediate physical
       contact which would have been painful, injurious, insulting or
       offensive to him.
               (It is not necessary for all jurors to agree to just (a), (b), or (c).
       It is only necessary that all jurors agree to at least one of these three
       alternatives.)

       At trial, Special Agent Monney testified that while at the Sergeant Bluff

Police Department, McPherson asked to use the restroom. Another officer and

Monney took McPherson to the restroom and removed his handcuffs. Asked to

describe McPherson upon returning to the interview room, Monney testified,

       [McPherson] had been complaining about pain in his hips and pain
       in his back, so an ambulance was called for him. So—They weren’t
       my handcuffs that were on him, so I went to switch those out. Once
       I went to double lock the handcuffs so they wouldn’t tighten up on
       him when he moved, he mumbled something that he was special
       forces and then he lunged towards me.

A struggle ensued, and McPherson was eventually restrained after the officers

used a stun gun on him.
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        Monney stated he was injured in the struggle. Describing a photograph of

a bruise on his arm, Monney said: “That’s my left forearm where [McPherson] had

taken the handcuffs and tried to rake them or grab my arm. I’m not sure what he

was doing, but that’s what caused the injury.” He said that the injury caused him

pain.    On cross-examination, Monney said the bruise was caused when

McPherson “lunged towards me like this (indicating) onto my arm and I felt it was

an attempt to either break free or get away.” He testified that McPherson’s hands

and the handcuffs came in contact with his left arm.

        On appeal, McPherson agrees Monney’s testimony would support his

conviction for assault on a peace officer. But, he argues, Monney’s testimony is

directly contradicted by the video evidence. In his opinion, the video

        shows the altercation beginning not when McPherson “lunged” at
        Special Agent Monney, or in any other way attacked him or came
        into physical contact with him. Rather, the video shows that
        McPherson moved in a way that could perhaps best be described as
        flinching, or seizing, or clapping one time. And immediately
        thereafter and obviously in response to this flinching movement by
        McPherson, Special Agent Monney applies force in order to restrain
        McPherson.

He further opines the video

        reveals that McPherson’s action was not intended to “cause pain or
        injury to Todd Monney,” or to “result in physical contact which was
        insulting or offens[ive] to Todd Monney,” or to “place Todd Monney
        in fear of an immediate physical contact which would have been
        painful, injurious, insulting or offensive to him.”

He argues that, upon a review of the video, “no rational trier of fact could find

beyond a reasonable doubt that [McPherson’s] movement satisfied any of the

alternative means of satisfying the first essential element contained in [the jury

instruction].” Therefore, he concludes his conviction for assault on a peace officer
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is not supported by substantial evidence.        We reject McPherson’s claim of

insufficient evidence

       Having viewed the video recording of the incident, we disagree with

McPherson’s characterization of the video. In our eyes, the video is consistent

with Monney’s testimony. Viewing the evidence in the light most favorable to the

verdict, we find the State produced substantial evidence from which a jury

reasonably could conclude the State proved the assault beyond a reasonable

doubt. Accordingly, the ruling made by the jury on the field stands.

       III. Weight of the Evidence. McPherson also contends the district court

abused its discretion in denying his motion for new trial. We employ an abuse-of-

discretion standard when considering the district court’s ruling on a motion for new

trial based on the weight of the evidence. See State v. Neiderbach, 837 N.W.2d

180, 190 (Iowa 2013). An abuse of discretion occurs only where the grounds for

the district court’s decision are clearly untenable or unreasonable. See State v.

Reeves, 670 N.W.2d 199, 202 (Iowa 2003). On a claim challenging the weight of

the evidence, we must grant a new trial if the jury’s verdict is contrary to law or

evidence. See Iowa R. Crim. P. 2.24(2)(b)(6). A verdict is contrary to evidence

when it is against the greater weight of the evidence presented at trial. See State

v. Taylor, 689 N.W.2d 116, 133-34 (Iowa 2004). Unlike the sufficiency standard,

where the district court must approach the evidence from a standpoint most

favorable to the State and assume the truth of the prosecution’s case, the weight-

of-the-evidence standard allows the court to balance the evidence and consider

the credibility of witnesses. See id. at 134. In deciding whether to grant a new trial

on this ground, the district court enjoys wide discretion, but it must exercise that
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discretion carefully and sparingly. See id. When deciding a new-trial motion, it is

important not to lessen the role of the jury as the principal trier of fact. See State

v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

       On appeal, McPherson argues “the overwhelming weight of the evidence—

in particular, the video of the alleged assault—shows that McPherson did not

assault Agent Monney.” Again, we disagree with McPherson’s characterization of

the video. Furthermore, the record reveals the witness testimony was not so

lacking in credibility that it could not support a guilty verdict. For the same reasons

that we conclude there is sufficient evidence to support the jury’s verdict, we

cannot on this record find that the evidence preponderates heavily against the

jury’s findings that McPherson assaulted Special Agent Monney. Here, the district

court aptly decided the verdict did not weigh heavily against the credible evidence,

so we find no abuse of discretion in the district court’s denial of a new trial.

       IV. Conclusion.      Because we conclude the record contains sufficient

evidence to support a guilty verdict and the district court did not abuse its discretion

in ruling that the guilty verdict was not contrary to the weight of the evidence, we

affirm the judgment and sentence of the district court.

       AFFIRMED.
