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IN THE SUPREME COURT OF IOWA
No. 106 /05-0933 Filed December 22, 2006 STATE OF IOWA, Appellee, vs. BRADLEY HOWARD BOWER, Appellant.

Appeal from the Iowa District Court for Cedar County, J. Hobart Darbyshire, Judge.

Defendant appeals his conviction for harassment of a public officer. JUDGMENT OF CONVICTION AFFIRMED, SENTENCE

VACATED, CASE REMANDED WITH DIRECTIONS.

Gregg A. Geerdes, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Lee W. Beine, County Attorney, and Jeffrey L. Renander, Assistant County Attorney, for appellee.

2 WIGGINS, Justice. A magistrate found Bradley Howard Bower guilty of harassment of a public officer. On appeal, the district court, sitting as an appeals

judge, affirmed the conviction and imposed a harsher sentence than that imposed by the magistrate. In this appeal, Bower claims Iowa Code

section 718.4 (2003) is unconstitutional and there is not substantial evidence to support his conviction. Our review of the record indicates Iowa Code section 718.4 is constitutional and there is substantial evidence to support his conviction. Therefore, we affirm his conviction. Bower further asserts it is impermissible for the district court to increase his sentence following his unsuccessful non-de novo appeal. Because we agree the district court's imposition of a harsher sentence violates Bower's due process rights, we vacate the sentence of the district court and remand the case for the district court to enter judgment for the same sentence imposed by the magistrate. I. Facts. On our de novo review of the facts, we find around 2:30 a.m. on November 28, 2004, West Branch police officer Jonathan Kolosik observed a red pickup truck driving the wrong way on a one-way street. Not knowing where the truck was going, Kolosik drove on the street in the proper direction in an attempt to head the truck off. By the time Kolosik noticed the truck again, it was parked in the driveway of Kyle Coleman's residence, which is a few houses away from Bower's home or roughly one city block. When Kolosik saw the truck in Coleman's

driveway, he also observed two people kneeling in front of the truck. Kolosik pulled over in front of the Coleman residence and the two people came over to him. Kolosik identified the two as Coleman and Jerrod

Rummells. Kolosik recognized the truck as belonging to Rummells.

3 When speaking to Rummells, Kolosik noticed a faint smell of alcohol on him. He also saw Rummells had some marks on his hands, consistent with being in a fight. At the time of the stop, Kolosik knew a fight had occurred at a bar in a nearby community. About ten minutes after Kolosik began talking to Rummells and Coleman, Bower walked toward the scene from his home. Kolosik, who was inside his squad vehicle at the time, exited the vehicle as soon as Bower approached. Kolosik characterized Bower's demeanor as threatening, irate, agitated, and very angry. Kolosik testified that Bower told him "to get out of [his] area" and Kolosik "wasn't supposed to be there." He also testified Bower said he was "going to sue [Kolosik's] ass," and he "owned [Kolosik]" and "paid [Kolosik's] salary." Kolosik testified he asked Bower repeatedly to leave and told him the situation did not concern him. Instead of leaving or maintaining his position some distance from Kolosik, Bower continued to move closer. At one point during the encounter, Bower was close enough for Kolosik to smell a faint odor of alcohol on Bower. At this point, Kolosik called for backup. Seeing that the situation was escalating, Rummells intervened in the confrontation. Kolosik told Rummells to explain the situation to Bower. Rummells eventually pulled Bower away from Kolosik's personal space. Rummells then talked to Bower and Bower left the scene. With Bower now gone, Kolosik advised Rummells and Coleman to remain at Coleman's residence because he believed they were

intoxicated. However, Kolosik decided not to charge either of them with any offense. After completing his investigation, Kolosik left the scene.

4 II. Proceedings. On December 10, 2004, Kolosik filed a complaint alleging Bower committed harassment of a public official in violation of Iowa Code section 718.4. Bower moved to dismiss the complaint asserting section 718.4 is unconstitutional in that it violates Article I of the United States Constitution and article I of the Iowa constitution. The court overruled the motion. The case proceeded to trial before a magistrate. The magistrate

convicted Bower. Reasoning "the statute only criminalizes conduct that interferes with an ongoing investigation," the magistrate found the statute was not overbroad on its face or as applied. The magistrate

further explained it was not Bower's words alone that created the violation, but it was also his conduct of approaching an officer to a point at which the officer feared for his own personal safety. The magistrate sentenced Bower to pay a $100 fine plus surcharge and costs. Bower appealed the magistrate's decision to the district court. The district court affirmed Bower's conviction, finding the statute criminalizes conduct rather than speech and that there was substantial evidence to support Bower's conviction. The district court increased Bower's

sentence to a $500 fine plus costs and a suspended thirty-day jail sentence. Bower filed an application for discretionary review, which we granted. III. Issues. Bower raises three issues on appeal. They are: (1) whether Iowa Code section 718.4 is unconstitutional; (2) whether there is substantial evidence to support Bower's conviction under section 718.4; and (3)

5 whether it is permissible for the district court to increase Bower's sentence following his unsuccessful non-de novo appeal. IV. Scope of Review. Our review is de novo when we assess an alleged violation of constitutional rights. State v. Shanahan, 712 N.W.2d 121, 131 (Iowa

2006). This review requires an independent evaluation of the totality of the circumstances. Id. "The fact findings of the district court are not binding; however, because the district court had the opportunity to assess the credibility of the witnesses, we do give deference to those findings." Id. In regards to Bower's claim as to the sufficiency of the evidence supporting his conviction, our review is for correction of errors of law. State v. Leckington, 713 N.W.2d 208, 212-13 (Iowa 2006). Finally, "[w]e review the district court's sentence for correction of errors at law." State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).

Insofar as Bower presents constitutional issues related to his sentence, our review is de novo. 2003). V. Analysis. A. Constitutional challenges. The State convicted Bower for State v. Mitchell, 670 N.W.2d 416, 418 (Iowa

violating Iowa Code section 718.4. Section 718.4 provides: "Any person who willfully prevents or attempts to prevent any public officer or employee from performing the officer's or employee's duty commits a simple misdemeanor." Iowa Code

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