IN THE COURT OF APPEALS OF IOWA
No. 22-0530 Filed August 30, 2023
STATE OF IOWA, Plaintiff-Appellee,
vs.
JAMES PETER RETHWISCH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Allamakee County,
Richard D. Stochl, Judge.
James Rethwisch appeals his conviction for assault with intent to commit
sexual abuse. JUDGMENT AND SENTENCE CONDITIONALLY AFFIRMED;
RULING ON NEW TRIAL MOTION VACATED IN PART AND REMANDED.
Kevin Stinn of Swartz Law Firm, PLLC, Waukon, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered en banc. 2
AHLERS, Judge.
James Rethwisch appeals his conviction for the crime of assault with intent
to commit sexual abuse, in violation of Iowa Code section 709.11(3) (2019). He
raises several issues, which we will address in turn after providing some factual
background.
I. Factual Background
In 2019, then sixty-three-year-old Rethwisch was drinking at a bar with three
other men—Craig, Charlie, and Jake—and his adult niece, who we will refer to as
Sonya.1 After the bar closed, the five people went to Charlie’s apartment for an
afterparty where they continued to drink alcohol and smoked marijuana.
Eventually, both Jake and Sonya retired to separate bedrooms, as they were both
heavily intoxicated. This left Craig, Charlie, and Rethwisch in the kitchen. A little
bit later, Rethwisch left the kitchen, telling Charlie he was going to lie down with
his niece. Charlie did not view Rethwisch’s suggestion as “weird” because
Rethwisch was Sonya’s uncle, and Charlie figured Rethwisch was staying
overnight so no one had to drive.
Sometime later, Craig and Charlie heard Jake vomiting, so they went to
check on him. Craig decided to check on Sonya as well. When Craig opened the
door and looked in the bedroom where Sonya had gone, he saw Rethwisch jerk
and noticed that Rethwisch was over the top of Sonya.2 Craig left the bedroom
1 Rethwisch’s niece’s name is not Sonya. We used a random-name generator that
produced the name Sonya, which we will use to maintain the privacy of Rethwisch’s niece. 2 In describing Rethwisch’s jerking motion, Craig described it as, “It seemed like,
you know, if you were at—if you were in high school or something at your 3
door open and went to Charlie to report what he had seen. Charlie expressed
disbelief and told Craig to go back and check. When Craig returned to the bedroom
the door had been closed to the point that Craig had to turn the knob to reopen it.
Upon opening the door a second time, he saw the same thing.
Craig again left the door open and returned to Charlie. This time, both of
them returned to the bedroom to find the bedroom door closed again. They opened
the door and flipped on the light. They saw Sonya lying flat on her back,
unconscious and partially naked. Her shirt and bra were pulled up above her
breasts, but below her neck, and her underwear and pants were pulled down
around her ankles. Rethwisch was on top of her, and when the light was switched
on, he rose to a vertical position while still on his knees. Charlie yelled at
Rethwisch, and Rethwisch responded by throwing a punch at Charlie. Craig struck
Rethwisch with a plastic guitar, and Rethwisch fled the apartment.
After Rethwisch fled, Sonya began to speak as if she had just regained
consciousness. She asked what had happened. When told what had happened,
she thanked Craig for what he had done.
Sometime later that morning, Rethwisch sent text messages to Sonya
apologizing and asking for Sonya’s forgiveness. Law enforcement was notified
later that day. As part of the investigation, an officer had Sonya place a telephone
call to Rethwisch while the officer recorded the call. During the call, Rethwisch
stated, “I don’t know if you took them off or I did,” referring to Sonya’s clothes, and
girlfriend’s house, making out, and her parents come walking in on you, you jump kind of quick.” 4
“I honestly didn’t know who I was with,” when Sonya asked if he thought she was
someone else.
The law enforcement officer also interviewed Rethwisch. During the
interview, Rethwisch expressed relief that Craig and Charlie stopped him when
they did because he would have felt worse “if [he] would have had intercourse with
[his] niece.” Rethwisch also admitted that he intended to commit a sex act.
At trial, Rethwisch testified that he was bullied by the officer and led into
saying what he had said, claiming the officer “was throwing things at me that I just
hadn’t really thought about, and basically I was getting tired of listening to him and
I figured, basically, if I agreed with him, he’d shut up.”
Additional facts will be discussed as needed.
II. Sufficiency of the Evidence
Rethwisch’s first challenge is to the sufficiency of the evidence supporting
his conviction.
A. Standard of Review
We review sufficiency-of-the-evidence claims for correction of errors at law.
State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). When a jury has delivered
a verdict, we are bound by it if it is supported by substantial evidence. Id.
Substantial evidence is evidence sufficient to convince a rational factfinder that the
defendant is guilty of the crime beyond a reasonable doubt. Id. In assessing a
sufficiency-of-the-evidence challenge on appeal, we view all evidence in the light
most favorable to the State. Id.
B. Elements of the Offense
Three jury instructions inform our discussion of Rethwisch’s challenge. The 5
first of these instructions is the marshaling instruction,3 given to the jury as
instruction number seventeen. It stated:
The State must prove both of the following elements of assault with intent to commit sexual abuse: 1. On November 25, 2019, James Rethwisch committed an act which was intended to cause pain or injury or result in physical contact which would be insulting or offensive to another person or place another person in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to the other person. 2. Defendant committed the act with the intent to commit sexual abuse as that term is described in instruction number eighteen[.] If the State has failed to prove either of the above elements, defendant is not guilty of the offense of assault with intent to commit sexual abuse and you shall consider the offense of Simple Assault as set forth in instruction number twenty.
Jury instruction eighteen stated:
Any “sex act” between persons, as defined in instruction number nineteen, is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances: 1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other. 2. Such other person is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters.
Jury instruction nineteen stated:
Concerning element number one of instruction number eighteen, “sex act” means any sexual contact: 1. By penetration of the penis into the vagina. 2. Between the mouth of one person and the genitals of another. 3. Between the genitals of one person and the genitals of another.
3 “A ‘marshaling instruction’ is a jury instruction that brings together and effectively
orders all elements the party with the burden of proof must establish in order to prevail.” State v. Hernandez, No. 19-1764, 2020 WL 4201800, at *1 n.2 (Iowa Ct. App. July 22, 2020). 6
4. Between the finger or hand of one person and the genitals of another. You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.
Although Rethwisch unsuccessfully objected to nuances of the marshaling
instruction before the district court, he does not repeat the challenges here. So,
the instructions become the law of the case for purposes of assessing his
sufficiency-of-the-evidence challenge. See State v. Schiebout, 944 N.W.2d 666,
671 (Iowa 2020) (“Jury instructions, when not objected to, become the law of the
case for purposes of appellate review for sufficiency-of-evidence claims.”); State
v. Thomas, No. 19-0379, 2020 WL 5651563, at *3–4 (Iowa Ct. App. Sep. 23, 2020)
(treating the instructions as the law of the case on a sufficiency-of-the-evidence
challenge when the defendant objected to the instructions at trial but did not
challenge the instructions on appeal).
C. Analysis
Rethwisch raises two sufficiency challenges. First, he contends the
evidence was insufficient to establish that he committed an assault—implicating
the first element listed in the marshaling instruction. Second, he contends the
evidence was insufficient to establish that he acted with intent to commit sexual
abuse—implicating the second element listed in the marshaling instruction.
The primary themes of Rethwisch’s argument are that Sonya could not
recall what happened in the bedroom and no one saw him assault Sonya. While
this may be true, it ignores a great deal of other direct and circumstantial evidence.
Direct and circumstantial evidence are equally probative. State v. Ernst, 954
N.W.2d 50, 57 (Iowa 2021). Likewise, “[j]uries must necessarily make inferences 7
when finding facts based on circumstantial evidence.” Id. at 59. Those inferences
can be stacked, so long as the ultimate fact finding is based on evidence in the
record rather than speculation. Id.
So, we look at the direct and circumstantial evidence. Based on the
evidence presented, a reasonable juror could conclude the following. Rethwisch
was found on top of Sonya multiple times while she was unconscious with her shirt
and bra pulled up to her neck with her breasts exposed and her pants and
underwear pulled down around her ankles, exposing her genitals. A rational juror
could conclude that Rethwisch, as the only conscious person in the room, was the
one responsible for moving Sonya’s clothes to reveal her breasts and genitals.
This is evidence of an assault, as a rational juror could conclude that Rethwisch
had to have engaged in insulting or offensive contact with the unconscious Sonya
in order to move her clothes in such a manner. This is also evidence of intent to
perform a sex act, which, when performed upon an unconscious Sonya, would
constitute intent to commit sexual abuse. See Iowa Code § 709.1(1) (defining
“sexual abuse” to be a sex act performed on another person that is “in a state of
unconsciousness”); State v. Killings, No. 09-0739, 2010 WL 3894161, at *4 (Iowa
Ct. App. Oct. 6, 2010) (collecting cases in which evidence of partially removed
clothing that exposed the victim’s breasts or genitals was sufficient to establish
intent to commit sexual abuse).
And there’s more. When Craig opened the door to the bedroom, Rethwisch
jerked in a manner Craig described as the way a person reacts when caught doing
something the person wouldn’t want to be caught doing. Also, the first two times
Craig checked on Sonya and found Rethwisch on top of her, someone closed the 8
bedroom door after Craig left it open. A rational juror could conclude that
Rethwisch was the only conscious person in the room, so he is the one who closed
the door and he did so to try to hide what he was doing to Sonya. The third time
he was caught in this incriminating position, the lights were flipped on, revealing
Rethwisch on top of an exposed and unconscious Sonya. Rethwisch responded
to being yelled at by throwing a punch. A rational juror could conclude this is not
the reaction of a person engaged in innocent behavior.
There is also the evidence of Rethwisch’s actions and statements after his
actions in the bedroom. He sent a text apologizing to Sonya and asking her
forgiveness. A rational juror could conclude that Rethwisch did so because he had
assaulted Sonya with the intent to commit sexual abuse. Additionally, Rethwisch
admitted to the officer that he acted with intent to commit sexual abuse. While
Rethwisch testified that he made that admission because he felt bullied and
wanted the interrogation to stop, a rational juror could accept Rethwisch’s
admission as true rather than accepting his trial testimony. See State v. Laffey,
600 N.W.2d 57, 59 (Iowa 1999) (“[I]t is for the jury to judge the credibility of the
witnesses and weigh the evidence.”).
Rethwisch contends this evidence, which can be viewed as incriminating,
could be viewed a different and innocent way. But this contention disregards our
role in assessing a sufficiency-of-the evidence challenge. On appellate review of
such challenges, it is not our place “to resolve conflicts in the evidence, to pass
upon the credibility of witnesses, to determine the plausibility of explanations, or to
weigh the evidence; such matters are for the jury.” State v. Musser, 721 N.W.2d
758, 761 (Iowa 2006) (quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)). 9
Instead, we must view the evidence “in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
Schiebout, 944 N.W.2d at 670 (quoting State v. Thomas, 847 N.W.2d 438, 442
(Iowa 2014)). Viewing the evidence in this light, we find substantial evidence
supporting the verdict, and we reject Rethwisch’s challenges to the sufficiency of
the evidence.
III. Closing Argument
Rethwisch next argues “the jury improperly considered the State’s closing
argument as evidence that the defendant committed an assault.” We are not clear
on what Rethwisch is arguing. As near as we can determine, this issue is merely
a repackaging of his sufficiency-of-the evidence challenge, which we reject for the
reasons just discussed.
To the extent Rethwisch is attempting to claim some other error during
closing argument, we decline to address the issue because Rethwisch failed to
preserve it. To preserve error based on events occurring during closing argument,
a party must raise the issue before the case is submitted to the jury. See Kinseth
v. Weil-McLain, 913 N.W.2d 55, 67 (Iowa 2018) (“[W]e require prompt objection to
discourage the wait-and-see approach, in which aggrieved parties refrain from
objecting to remarks in a jury argument until after the verdict has been rendered.”).
Rethwisch did not do so, so he did not preserve error on this issue.
IV. Motion for New Trial—Weight of the Evidence
Rethwisch’s next contention is that the district court applied the wrong
standard to the part of his new-trial motion in which he claimed the verdict was
contrary to the weight of the evidence. He claims the district court applied a 10
sufficiency-of-the-evidence standard rather than a weight-of-the-evidence
standard. “[W]e review a claim that the district court failed to apply the proper
standard in ruling on a motion for new trial for errors at law.” State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016) (citing State v. Wells, 738 N.W.2d 214, 218 (Iowa
2007)).
When reviewing a motion for new trial claiming the verdict is contrary to the
weight of the evidence, the district court considers “whether more ‘credible
evidence’ supports the verdict rendered than supports the alternative verdict.” Id.
“The question for the court is not whether there was sufficient credible evidence to
support the verdict rendered or an alternative verdict, but whether ‘a greater
amount of credible evidence’ suggests the verdict rendered was a miscarriage of
justice.” Id. (quoting State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998)). In this
case, the record shows the district court did not apply this weight-of-the-evidence
standard when addressing Rethwisch’s motion for new trial as will be further
explained later.
However, the State contests error preservation. The State contends that,
even if Rethwisch’s motion made a weight-of-the evidence claim, the district court
actually applied a sufficiency-of-the-evidence standard. The State argues that, if
Rethwisch wanted the district court to apply the weight-of-the-evidence standard,
he needed to call the oversight to the district court’s attention in order to preserve
error.
Faced with similar error-preservation arguments, our court has reached
varied results. Compare State v. Sallis, No. 17-1842, 2019 WL 325019, at *3 n.4
(Iowa Ct. App. Jan. 23, 2019) (“The State contends Sallis did not preserve error 11
because his ‘vague and standardless’ motion for new trial ‘did not clearly request
a ruling on the correct standard.’ The State also suggests Sallis had a burden to
inform the court it applied the wrong standard. We conclude Sallis preserved error
by citing [Iowa Rule of Criminal Procedure] 2.24(2)(b)(6) in his new-trial motion and
arguing at the hearing the verdicts were ‘contrary to the weight’ of the evidence.”),
with State v. Clark, No. 06-0345, 2007 WL 2964191, at *2 (Iowa Ct. App. Oct. 12,
2007) (“Clark made no challenge to the standard applied [to his motion for new
trial based on the weight of the evidence] by the district court. Because he did not
raise such an objection, Clark did not preserve any alleged error on this issue, and
there is nothing for us to review.”).
Having considered the conflicting decisions on this issue, we conclude that
the better course is to require a defendant to alert the district court when it applies
the incorrect standard in order to preserve error. We reach this conclusion based
on several considerations. First, it is a fundamental part of our error-preservation
doctrine that, in order to preserve error on an issue, a party must raise the issue
and obtain a ruling on it. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)
(“It is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”).
The reason for requiring a party to not only raise an issue, but to also obtain a
ruling on it, is that “[i]t is not a sensible exercise of appellate review to analyze facts
of an issue ‘without the benefit of a full record or lower court determination[ ].’” Id.
(alteration in original) (quoting Yee v. City of Escondido, 503 U.S. 519, 538 (1992)).
As a result, when a district court fails to rule on a properly raised issue, the party 12
raising the issue “must file a motion requesting a ruling in order to preserve error
for appeal.” Id.
Second, to the extent our rules of criminal procedure do not provide a
procedural vehicle for bringing this issue to the district court’s attention, the lack of
a rule-based method does not excuse a failure to bring the issue to the district
court’s attention. This is because “[t]here is no procedural rule solely dedicated to
the preservation of error doctrine.” Id. at 539. As a result, “a party may use any
means to request the court to make a ruling on an issue.” Id. So, even if there is
no available rule-based method for bringing the court’s failure to rule on an issue
to the court’s attention, a “party must still request a ruling from the district court to
preserve error for appeal on an issue presented but not decided.” Id.
Third, requiring a defendant aggrieved by the district court’s failure to apply
the correct standard to bring that failure to the court’s attention saves time and
judicial resources. When a defendant moves for new trial claiming the verdict is
contrary to the evidence, the defendant asks the district court to apply the weight-
of-the-evidence standard to decide whether to grant a new trial. If the district court
does not apply that standard, it makes little sense to allow a defendant to remain
silent in the face of the error or oversight only to then incur the time and expense
of an appeal to seek the very same relief the defendant could have received
immediately had the court been alerted to the error. After all, when a defendant
successfully points out on appeal that the district court did not apply the correct
standard, the remedy the defendant receives is for us to remand the case to the
very same judge with directions to apply the correct standard. This same
outcome—calling the error or oversight to the district court’s attention and getting 13
the court to apply the correct standard—could be achieved more easily and
efficiently by simply requiring the defendant to call the error to the district court’s
attention when the mistake is made. Furthermore, getting the district court to apply
the correct standard earlier rather than later (after an appeal) lends itself to a
sounder ruling, as the details of the case will be much fresher in the court’s mind
right after trial than months later following an appeal.
We are also not persuaded by the notion expressed in the special
concurrence that we will consider error preserved in the circumstances here
because the defendant would be required to bring the error to the district court’s
attention close in time to sentencing, thus running the risk of irritating the
sentencing judge. This rationale may make sense in the context of sentencing
errors. See, e.g., State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (“It strikes us
as exceedingly unfair to urge that a defendant, on the threshold of being
sentenced, must question the court’s exercise of discretion or forever waive the
right to assign the error on appeal.”). But this rationale makes little sense in the
context of alerting the district court to the misapplication of new-trial standards.
Many bases for requesting a new trial require criticism of the district court’s actions
during trial. See, e.g., Iowa R. Crim. P. 2.24(2)(b)(5) (“When the court has
misdirected the jury in a material matter of law, or has erred in the decision of any
question of law during the course of the trial . . . .”, (7) (“When the court has refused
properly to instruct the jury.”), (9) (“When from any other cause the defendant has
not received a fair and impartial trial.”). Nevertheless, we still require parties to
raise them and receive a ruling on them in order to preserve error, even though
the new trial motion is frequently addressed at or near the time of sentencing. We 14
need to have enough confidence in our district court judges to believe their
sentencing decisions would not be negatively impacted if they are alerted to an
error in their new-trial analysis. In fact, we trust that many judges would welcome
having the mistake called to their attention so it can be fixed earlier rather than
later (i.e., after appeal).
After consideration, we conclude that the better course is to require a
defendant to alert the district court that it applied the incorrect standard when
addressing the new-trial motion in order to preserve the issue for appeal. That
said, we recognize that our cases that find error preserved in this context may have
misled or confused counsel. So, for purposes of this case, we will consider error
preserved and proceed to a discussion on the merits, but give notice that, going
forward, a defendant will be required to bring the application of the incorrect
standard to the court’s attention in order to preserve error.
As a careful reader will notice, the conflict in our cases remains unresolved,
as we have split four to four on this issue. While we will have to wait for a future
case or further review to resolve the conflict in our cases, our hope is that
practitioners take note of the possibility that this conflict will be resolved in the
future by finding error is not preserved under these circumstances and will call this
type of error to the district court’s attention if it occurs. Even if the special
concurrence’s position wins the day on a future case or upon further review, no
harm would come from calling this type of error to the district court’s attention
because it provides the opportunity to fix the problem sooner rather than later.
Turning to the merits of Rethwisch’s claim, we conclude the motion provided
sufficient detail to put the district court on notice that he was arguing that the verdict 15
was contrary to the weight of the evidence. So, the question becomes whether the
district court applied the weight-of-the-evidence standard.
We conclude the district court did not apply the correct standard. As
previously noted, applying the weight-of-the-evidence standard involves assessing
credibility issues and determining whether more credible evidence supports the
verdict rendered than supports an alternative verdict. Ary, 877 N.W.2d at 706.
That did not happen here. The district court based its ruling on findings that “[t]here
is more than enough evidence in the record to support the jur[y]’s verdict” and there
“is enough evidence for the jury to find [Rethwisch’s] intentions were to commit
sexual abuse.” These are sufficiency-of-the-evidence findings not weight-of-the-
evidence findings. See id. at 706–07 (finding similar types of findings to be
applying the sufficiency-of-the-evidence standard rather than the weight-of-the-
evidence standard). We are unable to find anywhere in the district court’s ruling
where it applied the weight-of-the-evidence standard. As a result, we are required
to vacate that part of the district court’s ruling on the new-trial motion and remand
for consideration of the proper standard. See State v. Brumfeld, No. 21-0011,
2022 WL 951033, at *3–4 (Iowa Ct. App. Mar. 30, 2022) (granting the remedy of
vacation of the new-trial ruling when the wrong standard is applied and remanding
for consideration of the correct standard).
V. Motion for New Trial—Timing of Submission to Jury for Deliberation
Rethwisch next claims that the district court erred by denying the part of his
new-trial motion challenging the submission of the case to the jury for deliberation
at 2:45 p.m. on a Friday afternoon. He claims that doing so rushed the jury into a
verdict that it returned forty-seven minutes later. 16
We find this issue unpreserved for our review. Rethwisch raised no
objection to the timing of the submission of the case to the jury for deliberation until
after the jury returned a guilty verdict. This was too late to preserve error. Our
supreme court has found that error was not preserved to challenge a verdict based
on alleged jury communications observed prior to closing argument because no
objection was raised before the case was submitted for deliberation. State v.
Wells, 629 N.W.2d 346, 356–57 (Iowa 2001). The Wells court gave this reasoning
for its error-preservation ruling:
If Wells would have raised the issue to the district court prior to the time the jury commenced deliberations, the court would have been able to consider the claim and, if necessary, taken steps to alleviate any prejudice that may have occurred. Instead, Wells waited for a verdict, and when it was unfavorable, he then complained. In essence, Wells was gambling, and we do not reward those who make losing bets on their own convictions.
Id. (internal citations omitted). This reasoning applies here. By not objecting to
the timing of the submission of the case to the jury for deliberations, Rethwisch
failed to preserve error to challenge such timing on appeal.
VI. Motion for New Trial—Newly Discovered Evidence
Rethwisch’s final contention is that the district court erred by denying his
motion for new trial based on newly discovered evidence. Iowa Rule of Criminal
Procedure 2.24(2)(b)(8) permits the court to grant a new trial upon the defendant’s
discovery of important and material evidence after the verdict. State v. Uranga,
950 N.W.2d 239, 243 (Iowa 2020). “We review the denial of a motion for a new
trial based on newly discovered evidence for abuse of discretion.” State v. Cahill,
972 N.W.2d 19, 27 (Iowa 2022) (citing Uranga, 950 N.W.2d at 243). 17
A motion for new trial on the basis of newly discovered evidence should be granted only where the evidence “(1) was discovered after the verdict, (2) could not have been discovered earlier in the exercise of due diligence, (3) is material to the issues in the case and not merely cumulative, and (4) probably would have changed the result of the trial.”
Uranga, 950 N.W.2d at 243 (quoting State v. Smith, 573 N.W.2d 14, 21 (Iowa
1997)).
The evidence Rethwisch claims to be newly discovered is testimony from
his sister. At Rethwisch’s sentencing hearing, his sister (Sonya’s aunt) testified
that Sonya recently told her about a family wedding Sonya had attended eight to
ten years earlier. Sonya told her aunt that, at that wedding, “[Sonya] was so drunk
that she had gotten naked, left her clothes in a pile in the corner[,] and crawled into
bed between [Sonya’s mother and father].” Rethwisch argues that, had this
evidence been known and presented at trial, it would have shown a habit of Sonya
of taking her own clothes off when intoxicated and would have impacted the jury’s
verdict.
The district court denied the motion for new trial, finding that Rethwisch’s
evidence fails two of the Uranga prongs. Namely, it could have been discovered
prior to trial, and it was unlikely to change the outcome of the case given
Rethwisch’s own admissions and the eyewitness testimony. See id.
We find no abuse of discretion in the district court’s ruling. While we echo
the district court’s reasoning for denying the motion, we add an additional point
supporting the conclusion that this evidence would not probably change the
outcome of the trial. That point is that this testimony of how Sonya acted one time
while intoxicated nearly a decade earlier would face a number of evidentiary 18
obstacles that makes it unlikely the evidence would even be admitted. If not
admitted, of course, the evidence could not change the outcome of the trial. But,
even if admitted, we, like the district court, find it unlikely that the evidence would
change the outcome given Rethwisch’s admissions and the eyewitness evidence
of the events resulting in the conviction. Therefore, we reject Rethwisch’s
challenge based on the denial of the newly-discovered-evidence portion of his
new-trial motion.
VII. Conclusion
We conclude Rethwisch’s conviction is supported by substantial evidence.
We decline to address his challenges based on events surrounding closing
argument or the timing of when the case was submitted to the jury for deliberation,
as Rethwisch failed to preserve error on those issues. We conclude the district
court did not abuse its discretion in refusing to grant a new trial based on newly
discovered evidence. As a result, we conditionally affirm the judgment and
sentence.
Although we conditionally affirm the judgment and sentence, we vacate the
part of the district court’s ruling on Rethwisch’s motion for new trial addressing
Rethwisch’s contention that the verdict was contrary to the evidence. We remand
the case to the district court to apply the weight-of-the-evidence standard on that
issue. The only issue to be resolved on remand is for the court to rule on that part
of Rethwisch’s new-trial motion, which requires application of the weight-of-the-
evidence standard. If, following remand and application of the proper standard,
the court concludes the verdict is contrary to the weight of the evidence, the court
shall grant a new trial and proceed accordingly. If the court concludes the verdict 19
was not contrary to the weight of the evidence, the judgment and sentence shall
remain affirmed.
JUDGMENT AND SENTENCE CONDITIONALLY AFFIRMED; RULING
ON NEW TRIAL MOTION VACATED IN PART AND REMANDED.
Schumacher, Chicchelly, and Buller, J.J., join this opinion. 20
TABOR, Judge (specially concurring).
Our court finds itself in the unusual position of being evenly split with four
judges on each side of a narrow, but nagging question. How far does a defendant
have to go to preserve error on a motion for new trial alleging the verdict is against
the weight of the evidence? Unlike our colleagues who join the main opinion, we
believe that Rethwisch went far enough by citing Iowa Rule of Criminal
Procedure 2.24(2)(b)(6) and advocating the correct standard. Other than that fine
point, we concur with Judge Ahlers’s thorough opinion, including the outcome.
The main opinion notes that we have conflicting decisions on this error-
preservation question. The conflict is overstated. True, we have decisions going
different directions. But they can be reconciled.
In State v. Clark, our court declined to reach the defendant’s claim that the
district court denied his new-trial motion without deciding whether the verdict was
contrary to the weight of the evidence under the Ellis standard. No. 06-0345, 2007
WL 2964191, at *2 (Iowa Ct. App. Oct. 12, 2007); see State v. Ellis, 578 N.W.2d
655, 658–59 (Iowa 1998). There, the district court asked Clark’s counsel whether
it had addressed all of his motion; counsel said that he “believe[d] so” and then
echoed the court’s “sufficient evidence” standard complained about on appeal.
Clark, 2007 WL 2964191, at *2. Because Clark did not urge the correct standard,
we found he waived error.4 Id.
4 Our supreme court took a similar route in State v. Thompson, 836 N.W.2d 470
(Iowa 2013). It found that error was not preserved because Thompson’s counsel never cited rule 2.24(2)(b)(6) or Ellis in his posttrial motion or during the hearing on that motion in district court. Thompson, 836 N.W.2d at 491. 21
In State v. Sallis, the scenario was different. No. 17-1842, 2019 WL
325019, at *4 (Iowa Ct. App. Jan. 23, 2019). The defense cited the right rule in its
motion and argued the weight-of-the-evidence standard at the hearing. Id. at *3
n.4. It was the State in Sallis that provided a confusing recitation of the standard,
and the court was just as unclear in its ruling. Id. at *4. On those facts, we
conditionally affirmed and remanded for the court to apply the weight-of-the-
evidence standard. Id. at *5.
We find this case aligns more with Sallis than Clark. Like Sallis, Rethwisch
cited rule 2.24(2)(b)(6) in his motion for new trial; argued the correct standard in
that motion, even citing caselaw; and urged the correct standard at the hearing.
When those conditions are met, neither our court nor the supreme court has
required the defendant to take an extra step of calling out the district court’s use of
the wrong standard. See State v. Ary, 877 N.W.2d 686, 707 (Iowa 2016); State v.
Root, 801 N.W.2d 29, 31 (Iowa Ct. App. 2011). We would leave for some future
case to decide whether error would be preserved if one or more of these conditions
were not met.
But that said, we share our colleagues’ frustration with the resources
expended to ensure compliance with the twenty-five-year-old Ellis standard. In
fact, more than a decade ago, we published Root to emphasize the need for courts
to use “correct terminology” to resolve “any lingering ambiguity” and “instill
confidence in the ruling.” 801 N.W.2d at 31 (“While we place great confidence in
the district court’s experience in utilizing the differing standards, we have
repeatedly remanded to make certain the proper standard was applied and
reflected in its ruling.”). 22
So we recognize the benefit of a party bringing the use of the wrong
standard to the court’s attention—permitting the court to correct the mistake on the
spot rather than waiting through the appeal process. But we do not find that the
failure to do so falls solely on the defendant’s shoulders as an error-preservation
requirement. The main opinion cites the familiar error preservation rules from
Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002). But Senecaut requires the
appellant to seek a ruling on an “unresolved” issue, not to reengage the district
court on an issue that the court has resolved using the wrong test. Error
preservation does not have that many layers. See generally State v. Crawford,
972 N.W.2d 189, 198 (Iowa 2022) (“When we speak of error preservation, all we
mean is that a party has an obligation to raise an issue in the district court and
obtain a decision on the issue so that an appellate court can review the merits of
the decision actually rendered.”).
We recognize it is unfair to fault a district court for “failing to rule correctly
on an issue it was never given the opportunity to consider.” See Otterberg v. Farm
Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa 2005). But we don’t perceive that
unfairness in this situation where Rethwisch properly framed the question, yet the
court applied the wrong standard.
We also note that rulings on new-trial motions often occur at the same
hearing as sentencing, as happened here. Yet we don’t require defendants to
identify sentencing errors to the district court to preserve them for review. See
State v. Boldon, 954 N.W.2d 62, 70 (Iowa 2021). For example, a challenge to the
district court’s failure to state reasons for the sentence is not waived when
defendant does not alert the court to its omission. State v. Marti, 290 N.W.2d 570, 23
589 (Iowa 1980). Granted, ruling on the new-trial motion is a step removed from
sentencing. But defendants would still be “on the threshold of being sentenced”
when their counsel would be expected to question whether the district court was
correctly applying the Ellis standard. See State v. Cooley, 587 N.W.2d 752, 754
(Iowa 1998). It’s not a matter of fearing a district court judge would be irritated by
a party pointing out a perceived error. Rather, like sentencing, the district court
rules on the new trial motion after both parties have urged their positions; there is
no set procedure for more objections. See State v. Thomas, 520 N.W.2d 311, 313
(Iowa Ct. App. 1994). Still, as our court did in Thomas, we would encourage
prosecutors and defense counsel to alert the court to any claim of error that “could
avoid a costly and lengthy appeal.” Id. at 313 n.1. “It would also be welcome by
trial judges, who strive to perform their duties properly within the law.” Id.
In sum, we would find Rethwisch preserved error because he cited the right
rule and urged the proper standard both in his motion for new trial and at the
hearing. Our case law requires no more. On the merits, we all agree that the
district court applied the incorrect standard when deciding Rethwisch’s motion
under rule 2.24(2)(b)(6). On remand, the court must apply the weight-of-the-
evidence standard.
Bower, C.J., Greer, and Badding, J.J., join this special concurrence.