State of Iowa
v.
James Peter Rethwisch
Appellee
State of Iowa
Appellant
James Peter Rethwisch
Attorney for the Appellee
Louis S. Sloven, Assistant Attorney General
Attorney for the Appellant
Kevin Stinn
Court of Appeals
Court of Appeals Opinion
Opinion Number:
Date Published:
Summary
Appeal from the Iowa District Court for Allamakee County, Richard D. Stochl, Judge. JUDGMENT AND SENTENCE CONDITIONALLY AFFIRMED; RULING ON NEW TRIAL MOTION VACATED IN PART AND REMANDED. Considered en banc. Opinion by Ahlers, J. Special Concurrence by Tabor, J. (23 pages)
James Rethwisch appeals his conviction for assault with intent to commit sexual abuse. He (1) challenges the sufficiency of the evidence, (2) claims the jury improperly considered the State’s closing argument, (3) claims the district court applied the wrong standard when ruling on his motion for new trial based on the weight of the evidence, (4) argues the district court improperly submitted the case to the jury on a Friday afternoon, and (5) argues the court should have granted his motion for new trial based on newly discovered evidence. OPINION HOLDS: Rethwisch’s claims regarding closing arguments and the timing of submission of the case to the jury are not preserved for our review. His conviction is supported by substantial evidence. The district court did not abuse its discretion when denying the motion for new trial based on newly discovered evidence. As to Rethwisch’s claim that the district court applied the wrong standard when considering his motion for new trial based on the weight the evidence, he failed to alert the court the he believed the court applied the incorrect standard. However, because our past case law could have led defense counsel to believe nothing more was required to preserve error than what counsel did here, we treat Rethwisch’s claim as preserved. The district court did apply the incorrect standard when ruling on his motion for new trial based on the weight of the evidence. We conditionally affirm and remand to the district court for application of the correct weight-of-the-evidence standard. SPECIAL CONCURRENCE ASSERTS: I concur with the opinion in all respects except its discussion of error-preservation requirements on claims the district court applied the incorrect standard when ruling on a motion for new trial based on the weight of the evidence. However, I agree we should treat Rethwisch’s claim as preserved and agree the district court applied the incorrect standard.
