Opinion
No. 1-1054 / 01-1040
Filed February 20, 2002
Appeal from the Iowa District Court for Woodbury County,Todd A. Hensley, Judge.
Defendant appeals his conviction following a jury trial of serious assault in violation of Iowa Code sections 708.1(1) and 708.2(2) (1999). AFFIRMED.
Patrick Parry, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Mullin, County Attorney, and Ann Long, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Defendant-appellant Buck Jones appeals his conviction following a jury trial of serious assault in violation of Iowa Code sections 708.1(1) and 708.2(2) (1999). Defendant contends that (1) the jury verdict was contrary to the law and evidence, (2) the verdict was contrary to the weight of the evidence, and (3) remarks made by the prosecutor denied him a fair trial. We affirm.
Defendant was charged as a result of an assault that occurred in a bathroom at a Sioux City bar on October 9, 1999. The victim, Gerald Ray Grant, identified Jim Cain as one of his assailants and the defendant as a person he saw in the bar that evening. Cain testified at defendant's trial, admitting he was a perpetrator of the assault, but denying defendant's involvement. Grant testified he went into the men's bathroom and used the urinal. As he was ready to leave he was hit in the eye, somebody grabbed the back of his hair, he was hit again hard with what he believed to be a beer bottle, and then he was pushed to the floor where his arms were pinned and he was further punched in the face and ribs. Grant stated that as he was being attacked he saw two pairs of shoes close to him.
Patty Knudsen testified that after Grant entered the bathroom that night defendant had said, "It does not pay to go to the bathroom alone," and that defendant and Cain had exchanged head nods and made an indication towards the men's bathroom.
Marlone Ray Smith, who was employed as a bouncer at the bar and was working at the time of the incident, testified that he was alerted to a problem in the men's bathroom. He immediately went to the bathroom and found the door, which opened in, being held shut by someone's foot held up against the door. After several tries Smith forced his way in and found the floor covered with blood. Smith testified that defendant was in the room behind Grant, and that Cain was also in the room. Smith further testified that it appeared to him defendant was holding Grant's arms and that as soon as he entered, defendant let go of him. Smith testified that the men's bathroom was about nine feet by three feet, and that defendant, Grant and Cain were the only persons there when he entered the room small, crowded bathroom.
Grant was fifty-nine at the time of the assault. He was five feet nine and one-half inches tall, and he weighed one hundred and eighty pounds. Defendant was fifty-seven years old, six feet tall, and he weighed two hundred and thirty pounds.
Iowa Code section 708.1, under which defendant was convicted, defines assault as:
(1) 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 offensive to another, coupled with the apparent ability to execute the act.
(2) 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.
Defendant argues there was no evidence to support a finding that the contact between himself and Grant was painful, offensive, insulting or injurious, or that it met any other definition of assault under the Iowa Code. We disagree.
Our review of sufficiency-of-evidence challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997); State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999). The jury's findings of guilt are binding on appeal if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998); State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Allen, 348 N.W.2d at 247.
In deciding whether there is such substantial evidence, we view the record evidence in the light most favorable to the State. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 14(f)(16). A verdict can rest on circumstantial evidence alone. State v. Torres, 506 N.W.2d 470, 472 (Iowa Ct. App. 1993). However, "[t]he evidence must at least raise a fair inference of guilt as to each essential element of the crime. Evidence which merely raises suspicion, speculation, or conjecture is insufficient." State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted).
According to the jury instructions, the State was required to prove that defendant aided and abetted or actually perpetrated an act that was intended to cause pain or injury to Grant, and that defendant had the apparent ability to do the act. There was substantial evidence to support the conviction, and it was not contrary to either the law or the evidence. We affirm on this issue.
Defendant next contends the verdict was against the weight of the evidence. Defendant has failed to show in his brief how error was preserved on this issue. We find he did file a motion for a new trial, contending the verdict was against the weight of the evidence. However, the State alleges no ruling on that motion appears in the record, and we find none. In order to demonstrate that the trial court abused its discretion in ruling on a motion, the moving party must first obtain a ruling on the motion and then present the record including the motion and the ruling to an appellate court. See State v. Mudra, 532 N.W.2d 765, 766 (Iowa 1995). Finding error was not preserved, we affirm on this issue.
The defendant next contends that certain remarks by the prosecutor were misconduct and denied him a fair trial. The defendant points to places in the record where the prosecutor attempted to introduce evidence that was rendered inadmissible by the district court. The defendant further contends that the prosecutor made improper statements both in the opening statement and in closing argument and recalled witnesses on rebuttal in an attempt to reinforce their earlier testimony over defendant's objection. Defendant did not contend he made a motion in the district court for a mistrial based on prosecutor misconduct.
The State contends that this claim is waived, as the defendant failed to properly object to the alleged misconduct and failed to move for a mistrial.
Neither opening statements nor closing arguments were reported, and no bill of exceptions was filed, nor was a statement of the record made. Consequently, we agree with the State that defendant's claim that there was prosecutorial misconduct in the opening statement and closing argument is not preserved for appellate review. See State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982). We have reviewed defendant's other claims of prosecutorial misconduct on the scant record made and find them to be without merit.
AFFIRMED.