Date: 04-28-2016

Case Style: STATE OF IOWA vs. NATHANIEL CUMMINGS

Case Number: 15-0099

Judge: Paul D. Scott

Court: IN THE COURT OF APPEALS OF IOWA

Plaintiff's Attorney: Thomas J. Miller, Genevieve Reinkoester

Defendant's Attorney: Mark C. Smith, Patricia A. Reynolds

Description: On March 20, 2014, Cummings spent the night in Waverly at the home
belonging to the mother of his two children, Shelby Miller. The next morning after
getting herself and the children ready for the day, Miller woke up Cummings,
telling him he needed to find a ride back to his home in Waterloo. Cummings told
Miller she needed to take him home, but she informed him she did not have time
to take him to Waterloo because she needed to get the children to school and get
to her job in Cedar Falls before 9 a.m. Cummings berated Miller at home and in
the vehicle, a Ford Focus, as the two dropped the children off at school. Miller
then drove back home to allow Cummings to retrieve items out of Miller’s other
vehicle, a Lincoln Town Car. Cummings continued the verbal assault on Miller,
who then agreed to try to take Cummings to Waterloo on her way to work.
However, she informed him that if there was not enough time, he would need to
find a ride home from her place of employment.
When Miller realized she could not drop Cummings at his home in
Waterloo and get to work on time, she exited the highway to make her way to her
place of employment. Cummings became increasingly angry, and Miller called
her father and then called 911 from her cell phone. Cummings terminated both
calls using the buttons on the vehicle’s Bluetooth connection. Cummings’s
actions in terminating both phone calls made Miller feel like “things were going to
get out of control.”
Miller drove into her parking lot at work and attempted to retrieve the set of
keys for the Town Car out of Cummings’s pocket. Miller grabbed ahold of
Cummings’s sweatshirt, preventing him from exiting the car. Cummings then
kicked Miller in the chest from the passenger side of the vehicle, losing his shoe
in the process. Miller was unsure whether the kick was meant for her or the
center console, but she picked up Cummings’s shoe and attempted to use it as
leverage to get the Town Car keys from Cummings. As Cummings exited the
vehicle, he took the keys for the Focus from the ignition and swung a plastic ice
scraper at Miller, though it did not hit Miller.
The parties continued to yell at each other outside of the vehicle;
Cummings demanding the return of his shoe, and Miller demanding the return of
the keys. Cummings threw the Focus keys across the parking lot. When Miller
headed to retrieve the keys, Cummings followed, trying to grab his shoe from
Miller’s arm. Miller again attempted to call 911, but Miller dropped the phone and
the call was disconnected when Cummings grabbed Miller’s purse, ripping it from
her arms and spilling its contents onto the parking lot. Still attempting to get his
shoe, Cummings grabbed Miller’s left wrist and squeezed hard, leaving marks
and drawing blood. Miller released Cummings’s shoe, and Cummings returned
Miller’s broken purse. As Cummings walked away, he threw the Town Car keys
at Miller telling her to call the police because he was ready to go back to prison.
Miller then called 911 and informed the police officer what had occurred.
Cummings was located at a nearby store and eventually arrested for domestic
abuse assault.
The case proceeded to a jury trial on October 21, 2014. After the jury
found Cummings guilty as charged, he was sentenced to 365 days in jail,
ordered to pay a $315 fine plus a 35% surcharge, and assessed court costs,
court-appointed attorney fees, and victim restitution, if any. He was also ordered
to complete an Iowa domestic abuse program, and a five-year no-contact order
was entered. Cummings now appeals.
II. Scope and Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We
consider all the evidence in the light most favorable to the State, including all
reasonable inferences. Id. at 439–40. We will affirm the verdict if substantial
evidence supports it. Id. at 440.
Cummings raises his challenge to the weight of the evidence as an
ineffective-assistance-of-counsel claim, which we review de novo because the
claim implicates the Sixth Amendment right to counsel. State v. McCoy, 692
N.W.2d 6, 14 (Iowa 2005). Cummings must prove his trial counsel failed to
perform an essential duty and this failure resulted in prejudice to him. Id. While
we do not normally decide claims of ineffective assistance on direct appeal, we
will address the claim when the record is clear. Id.
A district court’s ruling on a motion for mistrial is reviewed for an abuse of
discretion. State v. Jirak, 491 N.W.2d 794, 796 (Iowa Ct. App. 1992). Trial
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courts are in a better position to gauge the effect of the conduct complained of,
so we will not find an abuse of discretion except where there is no support in the
record for the trial court’s determination. Id.
III. Sufficiency and Weight of the Evidence.
To be convicted of domestic abuse assault, the jury had to find:
1. On or about March 20, 2014, the defendant committed an act: a. which was intended to cause pain or injury to Shelby Miller, or b. which was intended to result in physical contact which was insulting or offensive to Shelby Miller, or c. which was intended to place Shelby Miller in fear of immediate physical contact which would have been painful, injurious, insulting, or offensive to her. 2. The defendant had the apparent ability to do the act. 3. The defendant’s act caused a bodily injury to Shelby Miller as defined in Instruction No. 10. 4. The defendant and Shelby Miller were the parents of the same minor children.[1]
Cummings maintains on appeal there was insufficient evidence to prove his
actions were intended to cause pain or injury, were intended to result in insulting
or offensive physical contact, or were intended to place Miller in fear of contact
that would have been painful, injurious, insulting, or offensive. He claims the
evidence proves he only had the intent to get away from Miller and to get his
shoe back.
The evidence in the record establishes Cummings verbally abused Miller
on the morning in question, including preventing her from contacting family or
1 Cummings does not assert the law in the jury instructions was incorrect, so we will examine his claims in view of the instructions given to the jury. See State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006).
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police. Miller feared things were getting out of control after Cummings
terminated her phone calls. The verbal abuse then culminated with a physical
altercation both in the car and the parking lot of Miller’s employment. While Miller
did initially have a grip on Cummings’s sweatshirt in order to obtain the Town Car
keys, she let go of the sweatshirt after she was kicked in the chest by Cummings.
Cummings then threw an ice scraper at Miller as he exited the vehicle. Next,
Cummings grabbed Miller’s purse and ripped it from her arm, leaving bruises,
breaking the straps, and spilling the contents onto the ground. Finally, he
grabbed Miller’s wrist and squeezed, again leaving marks and drawing blood.
While Cummings claims his actions were motivated by his desire to retrieve his
shoe from Miller, this motivation does not negate a finding by the jury that he
acted with the intent to cause pain or injury, with the intent that his physical
contact would be insulting or offense, or with the intent to place Miller in fear of
painful, injurious, insulting, or offensive contact. Miller’s possession of
Cummings’s shoe does not justify Cummings’s physical assault on Miller. We
conclude substantial evidence supports the jury’s verdict in this case and the
district court correctly denied Cummings’s motion for judgment of acquittal.
Likewise, we conclude Cummings cannot prove his counsel breached an
essential duty or that he suffered prejudice as a result of counsel’s failure to file a
motion for new trial challenging the weight of the evidence to support the verdict.
If such motion had been filed by counsel, we conclude, based on the evidence in
the record, the court would not have granted such motion because the evidence
does not preponderate heavily against the verdict. See State v. Serrato, 787
N.W.2d 462, 472 (Iowa 2010) (noting the district court’s discretion to grant a new
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trial based on the weight of the evidence “should be invoked only in exceptional
cases in which the evidence preponderates heavily against the verdict” (citation
omitted)). Because the court would not have granted such a motion if counsel
had filed it, we conclude Cummings cannot prove his ineffective-assistance-of
counsel claim. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[W]e have
held that counsel has no duty to raise an issue that has no merit.”).
IV. Prior Crimes—Mistrial.
Next, Cummings claims the district court should have granted his motion
for mistrial when Miller volunteered during her testimony that Cummings said, as
he was walking away, “to call the . . . police because he was ready to go back to
prison.” Prior to trial, Cummings had filed a motion in limine seeking to exclude
evidence of his “prior convictions, character, and/or other bad acts, arrests,
including but not limited to reference to active arrest warrants, or reference to
defendant’s parole status.” This motion was granted upon the consent of the
State not to admit this type of evidence unless Cummings opened the door. In
addition, the State agreed to advise Miller that any prior incidents or bad acts by
Cummings should not be volunteered.
The question the State had asked Miller when Miller volunteered this
information was where Cummings went after he put his shoe on. The State then
asked two more questions of Miller before defense counsel asked to approach
the bench and defense counsel made a motion for mistrial outside the presence
of the jury.2 The State agreed the jury could be admonished to disregard the
statement, but Cummings’s attorney insisted such an admonishment would not
be sufficient “because the well has been poisoned.”
In denying the motion for mistrial, the court noted the statement did not
violate the court’s in limine ruling because it did not convey Cummings’s prior
record or prior bad acts but was instead informing the jury what Cummings said
after the assault. The court concluded the statement was in the nature of an
admission and an acknowledgement that Cummings had done something wrong.
In addition, the court found the statement was more probative than prejudicial.
Under Iowa Rule of Evidence 5.404(b), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person, but it may be
admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” This is not an exhaustive list of
exceptions. State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010) (“The examples
listed in rule 5.404(b) are not exclusive; rather, ‘[t]he important question is
whether the disputed evidence is “relevant and material to some legitimate issue
other than a general propensity to commit wrongful acts.”’” (alteration in original)
(citations omitted)). Assuming for the sake of this appeal that stating a person
has previously been in prison meets the definition of “other crimes, wrongs, or
acts,” the evidence would be admissible under rule 5.404(b) if it was otherwise
relevant and material to a fact at issue and its probative value was not
substantially outweighed by the danger of unfair prejudice.
It was Cummings’s defense at trial and on appeal that he did not intend to
assault Miller during the altercation, but he was merely trying to get his shoe
back from her. The statement in this case—for Miller to call the police because
Cummings was ready to go back to prison—was relevant to show he recognized
what he did during the altercation was wrong. See State v. Mitchell, 450 N.W.2d
828, 832 (Iowa 1990) (holding the defendant’s attempted suicide after the crime
was admissible to show consciousness of guilt when the defendant and victim
had such disparate views of the same incident). In addition, while Miller’s
statement indicated Cummings had previously been in prison, there was no
indication what prior crime or wrong he had committed to be placed in prison.
The evidence did not show Cummings was a bad guy but showed he was aware
he had done something wrong during this altercation with Miller. Because the
evidence was relevant, not unduly prejudicial, and did not violate rule 5.404(b),
we conclude the district court did not abuse its discretion when it denied
Cummings’s motion for mistrial.

Outcome: Cummings’s conviction is supported by substantial evidence, and
therefore, we conclude the court did not err in denying the motion for judgment of acquittal. Likewise, we conclude Cummings cannot prove his counsel provided ineffective assistance by failing to file a motion for new trial based on the weight of the evidence. Finally, we conclude the court did not abuse its discretion in denying Cummings’s motion for mistrial when the complaining witness testified Cummings had previously been in prison. Cummings’s conviction is affirmed.

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