State of Iowa v. James Peter Rethwisch

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.”
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“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
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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).
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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
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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
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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)).
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.