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State v. Foley

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
SEAN MICHAEL FOLEY, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.

         Sean Foley appeals his conviction of assault on a person engaged in a certain occupation.

          Lauren M. Phelps, Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         Sean 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.

         I. Error Preservation

         As a 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.

         A. Sufficiency of the Evidence

         On 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.").

         However, 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.

         The 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.

         B. Supplemental ...


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