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IN THE COURT OF APPEALS OF IOWA No. 6-296 / 05-0154 Filed May 24, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. THOMAS EVERETT REITER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.

Thomas Everett Reiter appeals his conviction for assault causing bodily injury. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Ann Brenden, Assistant Attorney General, Rosalise Olson, County Attorney, and Jon Martin, Assistant County Attorney, for appellee.

Considered by Mahan, P.J., and Hecht and Eisenhauer, JJ.

2 MAHAN, P.J. Thomas Everett Reiter appeals his conviction for assault causing bodily injury. He argues the district court erred when it treated assault as a general intent crime. We affirm. I. Background Facts and Proceedings Thomas Reiter and Sally Reiter were divorced in 2001. They had one daughter during their marriage. Sometime after the divorce, Sally and the

couple's daughter moved in with Kevin Willemssen. Reiter called Sally nearly every night. Most of the calls were of a general nature, but they became

increasingly threatening after November 2002. At that time, Reiter began asking to speak with Willemssen. He told Willemssen that he would "kick [his] ass" and kill him. At around 8 p.m. on February 4, 2003, Reiter again called to talk to Sally. He also asked to speak to Willemssen. He told Willemssen repeatedly that "you need to leave me alone" and "I'm going to come to your house and kick your ass." After listening to the threats for fifteen minutes, Willemssen told Reiter, "If this is what you're going to do, do it." Willemssen hung up the telephone.

Willemssen, believing Reiter's threats to be empty, then went to bed. Several minutes later, Reiter appeared at the front door of Willemssen's home. Willemssen went to the attached garage to meet Reiter on the driveway. Reiter approached Willemssen and pushed him with his hands. Willemssen went to push Reiter back, and Reiter threw Willemssen to the ground. He landed on top of Willemssen and punched him in the head. Reiter then got up and went home. Willemssen crawled back into the house for help. He went to the

3 emergency room for treatment that evening. As a result of the altercation, he received a dislocated shoulder and a torn ACL. The State initially charged Reiter with willful injury, a class D felony, in violation of Iowa Code section 708.4 (2001) (Count I) and stalking, an aggravated misdemeanor in violation of section 708.11 (Count II). The trial information was amended on July 30 to include Counts III and IV: assault with intent to commit serious injury, an aggravated misdemeanor in violation of sections 708.1 and 708.2(1), and assault causing bodily injury, a serious misdemeanor in violation of sections 708.1 and 708.2(2). Pursuant to a plea agreement, trial was presented to the court on Counts II, III, and IV, with Count I dismissed by the State at the conclusion of trial. The trial court concluded that Willemssen was more credible than Reiter, and that the events of February 4, 2003, occurred as Willemssen described. Reiter was

acquitted of stalking (Count II) and assault with intent to commit serious injury (Count III). He was convicted of assault causing bodily injury (Count IV). In making its findings, the court wrote: In relation to the incident itself, the court finds that Mr. Reiter intended to grab Mr. Willemssen and throw him to the ground, but the court is not convinced beyond a reasonable doubt that Mr. Reiter had specific intent to inflict serious injury when he threw Mr. Willemssen to the ground, fell on top of him and struck him. Clearly, Mr. Reiter was angry, he intentionally took Mr. Willemssen to the ground and intentionally struck Mr. Willemssen in the head, but the court is not convinced beyond a reasonable doubt that Mr. Reiter specifically intended to inflict serious injury within the meaning of section 702.18, Code of Iowa. Accordingly, the court finds that Thomas Everett Reiter is not guilty of the offense of Assault with Intent to Inflict Serious Injury as charged in Count III of the Amended Trial Information. Although the court is not convinced that Mr. Reiter intended to inflict serious injury, Mr. Reiter did have the requisite general

4 intent to commit an assault within the meaning of Section 708.1, Code of Iowa, and bodily injury resulted in the meaning of Section 708.2(2), Code of Iowa. Accordingly, the court finds Thomas Everett Reiter guilty of the offense of Assault Causing Bodily Injury as charged in Count IV of the Amended Trial Information. Reiter appeals, alleging the court's characterization of assault as a general intent crime was incorrect. II. Standard of Review We review for errors at law. Iowa R. App. P. 6.4. III. Merits A. Error Preservation The State contends Reiter failed to preserve his argument because he did not raise the issue in a motion for new trial under Iowa Rule of Criminal Procedure 2.24(2) or in a motion to amend the district court's findings of fact and conclusions of law under rule 2.24(2)(c). While we require a defendant to file such motions to preserve an argument based on the sufficiency of the court's findings, they are not required in order to preserve an argument based on sufficiency of the evidence or other legal error. See State v. Miles, 346 N.W.2d 517, 518-19 (Iowa 1984). B. Assault as General or Specific Intent Crime Reiter argues the district committed reversible error when it considered assault under section 708.1(1) and 708.2(2) a general intent crime. He relies primarily on two cases: State v. Heard, 636 N.W.2d 227 (Iowa 2001), and State v. Bedard, 668 N.W.2d 598 (Iowa 2003), cert. denied, 543 U.S. 932, 125 S. Ct. 336, 106 L. Ed. 2d 234 (2004). In State v. Heard, the supreme court established that assault is a specific intent crime. Heard, 636 N.W.2d at 231. In doing so, it

5 specifically overruled any case that held otherwise. Id. In 2002, however, the state legislature amended section 708.1 to include the sentence, "An assault as defined in this section is a general intent crime." 2002 Iowa Acts ch. 1094,

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