State of Iowa v. Paul Kenneth Howard ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1990
Filed September 13, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PAUL KENNETH HOWARD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson,
Judge.
The defendant appeals his conviction of harassment in the first degree.
AFFIRMED.
Sharon D. Hallstoos, of the Halstoos Law Firm, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.
Paul Howard appeals his conviction of harassment in the first degree. He
claims the court erred denying his motion for judgment of acquittal because the
evidence does not support the elements of the crime. He also claims trial
counsel was ineffective for failing to file a motion for new trial. We affirm.
I. Background Facts and Proceedings.
On May 17, 2016, Howard was charged by trial information with the crime
of harassment in the first degree, pursuant to Iowa code section 708.7(2) (2016).
The charges arose from an April 12 disruption at the Scott County Administration
Building where Howard allegedly threatened to kill a bailiff working security. The
defendant waived his right to a jury trial, and the case was tried to the bench on
August 29.
At trial, Janet Dolan, the bailiff who was providing security for the Scott
County Administration building testified about her encounter with Howard on April
12. She stated she heard “a very loud disturbance” coming from the treasurer’s
office. She described the disturbance as an angry, male voice that was “cussing
and swearing.” Upon her investigation, she discovered Howard standing in line
in a crowded room yelling, “These stupid fucking white crackers. Pieces of shit
can’t get anything right.” She stated other people in the room appeared upset
and afraid.
Dolan testified she approached Howard and asked him to leave the
building. She stated the defendant responded by yelling multiple times, “I’m a
thirty-year-old man, you white bitch. You can’t tell me what to do.” Eventually,
Howard left the building and Dolan followed him to ensure he left the premises.
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According to Dolan, once she and Howard were outside the building, Howard
walked towards the sidewalk and stated, “[Y]ou fucking white bitch. White
cracker whore. I’m going to go get a gun and come back and kill you.” Dolan
stated Howard continued to complain and he walked over to the railroad tracks,
picked up a rock, and threw it at her.
Dolan also testified that people are often upset at the administration
building, and she is trained to escort people out of the building as peacefully as
possible. She stated standard procedure is to ensure the individuals leave the
property without force.
At the close of the State’s case, Howard moved for a judgment of
acquittal. The court denied Howard’s motion, holding “there is sufficient evidence
that could convince a rational trier of fact on each of the elements of harassment
in the first degree.”
Howard also testified at trial. He testified he was at the administration
building attempting to register his aunt’s car. He stated he became upset when
he was missing certain documentation to register a car, and the bailiff
approached him and asked him to “lower his tone.” He stated Dolan pulled out
her taser and said, “get the hell out of here,” and “I’ll fucking tase you.” He
acknowledged using profanity but denied throwing a rock at Dolan. Regarding
any interaction with Dolan after he left the building, Howard stated, “I didn’t have
any interaction with her. I left and walked away.”
The trial court found Howard guilty of harassment in the first degree in
violation of Iowa Code section 708.7(2). Howard appealed.
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II. Standard of Review.
“Sufficiency of evidence claims are reviewed for a correction of errors at
law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Claims of ineffective
assistance of counsel are reviewed de novo. See, e.g., State v. Liddell, 672
N.W.2d 805, 809 (Iowa 2003).
III. Discussion.
Howard claims the trial court erred denying his motion for judgment of
acquittal. He also claims counsel was ineffective for failing to file a motion for
new trial challenging the weight of the evidence.1
a. Sufficiency of Evidence.
Howard argues the evidence was insufficient to support the verdict based
on Dolan’s credibility. The State argues sufficient evidence exists in the record to
support the elements of the claim. We agree with the State.
“In making determinations on the sufficiency of the evidence, ‘we . . . view
the evidence in the light most favorable to the state, regardless of whether it is
contradicted, and every reasonable inference that may be deduced therefrom
must be considered to supplement that evidence.’” State v. Harris, 891 N.W.2d
182, 186 (Iowa 2017) (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979)).
“We will uphold a trial court’s denial of a motion for judgment of acquittal if the
record contains substantial evidence supporting the defendant’s conviction.” Id.
1
Howard also argues trial counsel was ineffective for failing to challenge the sufficiency
of the evidence in a post-trial motion. Error was preserved because counsel already
challenged the sufficiency of the evidence in a motion for judgment of acquittal. See
State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“Counsel cannot fail to perform an
essential duty by merely failing to make a meritless objection.”). Accordingly, we review
Howard’s claim under the sufficiency-of-the-evidence analysis.
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(citation omitted). “Evidence is substantial if it would convince a rational trier of
fact the defendant is guilty beyond a reasonable doubt.” Id. (citation omitted).
Generally, direct eyewitness testimony establishing the elements of the
crime are sufficient to generate a jury question. See State v. Kutcher, No. 14-
0602, 2015 WL 4935583, at *2 (Iowa Ct. App. Aug. 19, 2015) (holding officer’s
testimony that he witnessed the defendant commit the elements of the crime is
sufficient to uphold verdict). Even in light of Howard’s credibility challenges to
Dolan’s testimony, “[the trier of fact] is free to believe or disbelieve any testimony
as it chooses.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
Harassment in the first degree requires the State to prove the following
elements: (1) Howard purposely, and without legitimate purpose, had personal
contact2 with another person; (2) Howard communicated a threat to commit a
forcible felony; (3) Howard did so with the specific intent to threaten, intimidate,
or alarm the other person. See Iowa Code § 708.7(1)(b), (2)(a).
Viewing the evidence in the light most favorable to the State, there is
sufficient evidence to support Howard’s guilty verdict. Dolan testified Howard
yelled expletives at her while he was leaving the building. Dolan also testified
that Howard stated, “I’m going to go get a gun and come back and kill you.”
Howard purposely engaged in personal contact with Dolan by communicating
with her while in visual proximity to each other. See id. Howard also explicitly
communicated a threat to commit a forcible felony when he threatened to kill her
2
“‘Personal contact’ means an encounter in which two or more people are in visual or
physical proximity to each other. ‘Personal contact’ does not require a physical touching
or oral communication, although it may include these types of contacts.” Iowa Code
§ 708.7(1)(b).
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without legitimate purpose. See State v. Evans, 672 N.W.2d 328, 331 (Iowa
2001) (“Because there must be a specific intent to threaten, intimidate, or alarm,
the only legitimate purpose that will avoid the criminal status conferred by the
statute would be a legitimate purpose to threaten, intimidate, or alarm.”). While
Howard argues his version of the events does not support the elements, the trier
of fact is free to believe Dolan’s testimony over Howard’s testimony. See
Thornton, 498 N.W.2d at 673. The record contains substantial evidence
supporting the defendant’s conviction.
b. Ineffective Assistance.
Howard claims trial counsel was ineffective for failing to file a motion for
new trial based on the weight of the evidence.3 The State argues Howard’s trial
counsel was not required to file a motion for new trial because Dolan’s credible
testimony supports the verdict.
To prove his claims of ineffective assistance of counsel, Howard must
prove by a preponderance of the evidence: (1) counsel failed to perform an
essential duty and (2) Howard suffered prejudice as a result. See State v.
Morgan, 877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either
prong is not proved. Id. When a defendant chooses to raise an ineffective-
assistance-of-counsel claim on direct appeal, we may either determine the record
is adequate and decide the claim or find the record is inadequate and preserve
3
Howard also argues trial counsel was ineffective for failing to file a motion in arrest of
judgment and a motion to vacate challenging the sufficiency of the evidence. “A motion
in arrest of judgment may not be used to challenge the sufficiency of the evidence.”
State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990). Counsel has no duty to raise an
issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008). We decline
to address Howard’s claim that trial counsel was ineffective for failing to file a motion in
arrest of judgment.
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the claim for postconviction proceedings. See State v. Neitzel, 801 N.W.2d 612,
624 (Iowa Ct. App. 2011).
To prove the first prong of this claim, Howard must show counsel’s
performance fell outside the normal range of competency. See State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006). Starting “with the presumption that the
attorney performed his duties in a competent manner,” “we measure counsel’s
performance against the standard of a reasonably competent practitioner.” State
v. Maxwell, 743 N.W.2d 185, 195–96 (Iowa 2008). Although counsel is not
required to predict changes in the law, counsel must “exercise reasonable
diligence in deciding whether an issue is ‘worth raising.’” State v. Westeen, 591
N.W.2d 203, 210 (Iowa 1999) (quoting State v. Schoelerman, 315 N.W.2d 67, 72
(Iowa 1982)). In accord with these principles, we have held that counsel has no
duty to raise an issue that has no merit. Schaer, 757 N.W.2d at 637.
While trial counsel’s intentions are not clear, the record is sufficient to
resolve Howard’s claim. In doing so, we turn first to the prejudice prong of the
ineffective-assistance analysis. Under the second prong, “prejudice is shown
when it is ‘reasonably probable that the result of the proceeding would have been
different.’” Schaer, 757 N.W.2d at 638 (quoting State v. Henderson, 537 N.W.2d
763, 765 (Iowa 1995)). Howard argues the result would have been different
because trial court would have granted a new trial upon reviewing the weight of
the evidence. Essentially Howard claims his testimony is more credible than
Dolan’s. We disagree.
“A verdict is contrary to the weight of the evidence only when ‘a greater
amount of credible evidence supports one side of an issue or cause than the
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other.’” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016) (quoting State v.
Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)). The weight-of-the-evidence
standard is “more stringent than the sufficiency-of-the-evidence standard in that it
allows the court to grant a motion for new trial only if more evidence supports the
alternative verdict as opposed to the verdict rendered.” Id.
Howard argues Dolan’s testimony is not credible because her account of
the events was contradicted by her actions. Specifically, Howard asserts if he
had really threatened to kill Dolan and thrown a rock at her, she would have used
her weaponry, skill, and training to arrest Howard at the scene.
Dolan’s testimony, however, was not contradictory. Dolan testified that
she is trained to resolve disputes in a peaceful manner and standard procedure
is to follow the disruptive person and make sure they leave the premises. She
testified, “[O]ur goal is to not have to go hands on with someone.” Her failure to
respond to Howard using force is credible and it supports, rather than
contradicts, her testimony. See State v. Frake, 450 N.W.2d 817, 819 (Iowa
1990) (holding consistency of statements, memory, knowledge of the facts, and
the witness’s interest in the trial are valid credibility considerations). Dolan’s
credible testimony is not outweighed by Howard’s testimony, and the weight of
the evidence does not support the alternative verdict. Howard was not
prejudiced—he would not have received a different result had trial counsel filed a
motion for new trial challenging the weight of the evidence. Accordingly, trial
counsel was not ineffective. State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008)
(“Counsel cannot fail to perform an essential duty by merely failing to make a
meritless objection.”)
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IV. Conclusion.
The record contains substantial evidence supporting the defendant’s
conviction because Dolan’s testimony establishes the elements of the charged
crime. Additionally, trial counsel was not ineffective because Howard cannot
demonstrate prejudice; the weight of Dolan’s credible testimony is not
outweighed by Howard’s testimony.
AFFIRMED.