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.
State of Iowa v. John Charles McPherson II
Combined Opinion