Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
The opinion of the court was delivered by: Mullins, J.
A defendant appeals his conviction for assault on a peace officer. AFFIRMED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
John Twombly appeals his conviction for one count of assault on a peace officer, in violation of Iowa Code section 708.3A(4) (2011). He claims the district court erred in (1) submitting a jury instruction that was worded too broadly in light of the facts of the case, (2) denying his motion for a new trial and motion in arrest of judgment in light of the inconsistent verdicts, and (3) denying his motion for a new trial as the verdict was contrary to the weight of the evidence. Having reviewed the arguments and the record, we affirm Twombly's conviction.
I. BACKGROUND FACTS AND PROCEEDINGS.
The incident that is the subject of this proceeding occurred on July 23, 2011, Twombly's wedding day. By the time of the reception, Twombly was intoxicated and angry at one of his groomsmen, Travis Cullen, who was acting inappropriately. An off-duty police officer, Andrew Phipps, was hired to work security that night and was in uniform. At approximately 10:40 p.m., Officer Phipps observed Twombly flip over a table and yell something. Twombly appeared agitated. Officer Phipps spoke with Twombly's father, who was attempting to calm Twombly. He told Twombly's father that Twombly would receive no more alcohol and the couple had twenty minutes to say their goodbyes and leave.
A few minutes later, Twombly shoved Cullen, who was dancing with Twombly's new wife. Cullen lost his balance, knocked over a decorative column, breaking it, and landed in Officer Phipps's lap. Officer Phipps decided he needed to place Twombly under arrest, but was afraid of the crowd's reaction. So he radioed for assistance and stayed within arm's reach of Twombly until backup arrived.
According to Officer Phipps, Twombly began pulling on the patches on his uniform. Officer Phipps told Twombly to go outside, and Twombly responded, "I'll go outside. I'm going to fucking kick your ass." Officer Phipps decided to wait for backup before attempting to place Twombly under arrest. Once he saw the other officers entering the room, Officer Phipps testified Twombly took a stance and threw a punch at him. Officer Phipps was able to avoid being hit, and the other officers rushed Twombly and Officer Phipps, pushing them into the wall. Twombly was wrestled to the ground and placed under arrest.
Twombly was charged with two counts of assault on a peace officer*fn1 and interference with official acts, a simple misdemeanor. Twombly did not request a jury trial on the simple misdemeanor count, so it was tried to the bench simultaneously with the assault charges. See Iowa R. Crim. P. 2.64. After a four-day trial, the jury returned a guilty verdict on one count of assault on a peace officer with respect to Officer Phipps, and not guilty on the other assault. The court also found Twombly not guilty of interference with official acts. Twombly filed two posttrial motions, both of which were denied following a hearing. Twombly was given a ninety-day suspended sentence and placed on probation for one year. He was ordered to pay a fine, complete 100 hours of community service, and complete substance abuse and assaultive behavior classes. He now appeals.
During trial Twombly objected to the marshaling jury instruction to be given on the assault-on-a-peace-officer count and requested instead the court submit the instruction he requested. Twombly asked that the instruction limit the assaultive behavior by stating, in part,
1. On or about the 23rd day of July, 2011, Mr. Twombly attempted to punch Officer Phipps with a closed fist.
2. This act was intended to cause pain or injury, result in physical contact which was insulting or offensive, or place Officer Phipps in fear of an immediate physical contact which would have been painful, ...