from the Iowa District Court for Scott County, Christine
Dalton Ploof, District Associate Judge.
Foley appeals his conviction of assault on a person engaged
in a certain occupation.
M. Phelps, Davenport, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Foley was arrested for allegedly attempting to bite a
fully-uniformed police officer. He was subsequently charged
by trial information with assault on a person engaged in a
certain occupation, a serious misdemeanor. See Iowa
Code §§ 708.1, .3A(4) (2016). A jury found him
guilty as charged. Foley appealed his conviction following
the imposition of sentence. He contends (1) the district
court erred in denying his motion for judgment of acquittal
because the evidence was insufficient to support a guilty
verdict and (2) the district court's answer to the
jury's question on an instruction was an incorrect
statement of the law.
preliminary matter, the State contests error preservation on
both of Foley's arguments on appeal. We consider the
viability of Foley's appellate arguments in turn.
Sufficiency of the Evidence
appeal, Foley argues the evidence was lacking to support the
element that he intended to commit an assaultive act. See
id. § 708.1(1), (2). At the close of the
State's evidence, defense counsel moved for judgment of
acquittal, simply stating, "[T]here hasn't been
sufficient evidence to find Mr. Foley guilty of this
offense." The district court denied the motion. Our
supreme court has "emphasized that in order to preserve
error on a motion to acquit, the defendant must specifically
identify the elements for which there was insufficient
evidence." State v. Schories, 827 N.W.2d 659,
664 (Iowa 2013). Because the intent element was not
specifically identified as unsupported by the evidence,
Foley's generic motion for judgment of acquittal would
normally be insufficient to preserve error. See,
e.g., id.; State v. Crone, 545 N.W.2d
267, 270 (Iowa 1996) (holding error not preserved where
motion for judgment of acquittal does not point out the
specific deficiencies in the evidence); State v.
Mathews, No. 16-0973, 2017 WL 3283289, at *2 (Iowa Ct.
App. Aug. 2, 2017) (same); State v. Dahlheimer, No.
10-1311, 2011 WL 3115846, at *2 (Iowa Ct. App. July 27, 2011)
("A general motion for judgment of acquittal does not
preserve error on specific deficiencies.").
there is "an exception to the general error-preservation
rule when the record indicates that the grounds for a motion
were obvious and understood by the trial court and
counsel." State v. Williams, 695 N.W.2d 23, 27
(Iowa 2005). We think that exception applies here. The State
was required to prove three elements: (1) Foley committed an
act which was intended to do any of the following: (a) cause
pain or injury to another, (b) result in physical contact
which will be insulting or offensive to another, or (c) place
another in fear of immediate physical contact which will be
painful, injurious, insulting, or offensive; (2) he had the
apparent ability to do the act; and (3) he knew the subject
of the act was a peace officer. See Iowa Code
§§ 708.1, .3A(4). Elements two and three were not
in dispute, and the parties implicitly conceded as much in
their opening statements and closing arguments. The only
issue was whether Foley intended to commit an act that
amounted to assault.
record makes obvious Foley's motion was based on the
element he now challenges on appeal. We conclude error was
preserved. See Williams, 695 N.W.2d at 27-28.