IN THE COURT OF APPEALS OF IOWA

No. 21-0803

Filed November 2, 2022

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SHANE WAYNE MICHAEL,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Porter (Trial) and 

Joseph Seidlin (Motion to Continue), Judges.

Shane Michael appeals his conviction of willful injury causing serious injury.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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AHLERS, Presiding Judge.

A disagreement between two store patrons over COVID-19 masking spilled 

over into the parking lot and resulted in a physical altercation. The charge 

stemming from that altercation results in this appeal. 

I. Factual Background

Viewed in the light most favorable to the jury’s verdict, the record reveals 

the following facts. On November 11, 2020, Shane Michael went shopping. Due 

to the COVID-19 pandemic, the store required all patrons to wear a face covering. 

Another patron saw Michael wearing his facemask around his chin and gestured 

to Michael to raise his mask. Michael took offense, and the men had a verbal 

altercation. A store employee requested that the men calm down. The other 

patron decided to leave the store and as he did so, Michael coughed on him, 

resulting in another exchange of words.

Shortly after the other patron left the store, Michael followed. Their 

argument reignited in the parking lot and ended in a physical altercation. During 

the altercation, Michael dug his thumb into the other patron’s eye socket. The 

other patron bit Michael on the arm in an effort to make Michael quit gouging his 

eye. A witness called police who interviewed both men, employees, and other 

witnesses before arresting Michael.

II. Procedural Background and Statement of the Issues

As a result of the altercation, Michael was charged with and convicted of 

willful injury causing serious injury, in violation of Iowa Code section 708.4(1) 

(2020). Michael appeals. He makes four claims: (1) the district court abused its 

discretion in denying his request to continue the trial; (2) the district court erred in 
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not allowing him to introduce portions of a law enforcement officer’s body-camera 

video under the present-sense-impression exception to the rule against hearsay; 

(3) there is insufficient evidence that he intended to cause serious injury or that he 

caused serious injury; and (4) he should have been granted a new trial because 

the greater weight of the evidence supports his claim that he acted in self-defense. 

We address each of these claims separately.

III. Continuance Request

Michael filed a motion to continue the trial twelve days before trial. Michael 

wanted more time to try to obtain surveillance video from inside the store. The 

district court denied Michael’s motion two days later. 

A. Standard of Review

Trial dates are considered firm; motions for continuance are discouraged 

and not to be granted “except upon a showing of good and compelling cause.” 

Iowa R. Crim. P. 2.9(2). The decision whether to grant a motion for continuance 

is committed to the discretion of the district court and will be reversed only when 

there is abuse of that discretion. State v. Slayton, 417 N.W.2d 432, 435 (Iowa 

1987). A ruling on a continuance request will be disturbed on appeal only when 

an injustice has resulted. State v. Clark, 814 N.W.2d 551, 564 (Iowa 2012). The 

abuse-of-discretion standard recognizes the interest of both the State and the 

defendant in a speedy and fair trial. Id.

B. Analysis

Michael claims the district court abused its discretion in denying the motion 

because the motion was filed the same day the district court approved the State’s 

request to amend the trial information—changing the charge from willful injury 
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causing bodily injury, a class “D” felony, to willful injury causing serious injury, a 

class “C” felony. He also claims the court abused its discretion because he was 

out of custody, he had waived speedy trial, and he had not previously requested a 

continuance.

We find no abuse of discretion in the district court’s denial of Michael’s 

motion. As to the facts that Michael was out of custody, had waived speedy trial, 

and had not previously requested a continuance, we simply point out that the 

district court, not the defendant, gets to decide what cases are to be given priority 

on the court’s docket, and neither party is entitled to a continuance just because it 

is the first request. See Iowa R. Crim. P. 2.9(2) (“The date assigned for trial shall 

be considered firm.”). 

As to the fact that the State amended the trial information, we recognize 

that amendment of the charge raised the stakes. However, the amendment did 

not change the State’s theory or Michael’s claim of self-defense, and it did not 

dramatically change the direction of the case. See Clark, 814 N.W.2d at 562 

(finding no error in denying a continuance request based on a claimed need to 

investigate a late-produced document when the document “did not dramatically 

change the direction of the case”). Michael filed a notice of self-defense nearly 

four months before trial and before the trial information was even filed. Michael 

knew he was claiming self-defense long before the State amended the trial 

information, and any information Michael could find to support his claim of selfdefense would have been important to his case regardless of the level of crime 

charged. He already had ample time to secure the video if he believed it would 

help his defense. Further, there is nothing persuasive in the record establishing 
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why Michael could not have secured the video during the ten-day period between 

the denial of his motion and the start of trial. A motion for a continuance is “properly 

overruled where additional preparation of the defense for trial could have been 

accomplished earlier by the exercise of adequate diligence.” State v. Kyle, 271 

N.W.2d 689, 691 (Iowa 1978). That is what occurred here. We cannot say it was 

an abuse of the district court’s discretion to deny the motion for a continuance. 

IV. Exclusion of Body-Camera Video—Hearsay Exception

Michael sought to introduce the part of the investigating officer’s bodycamera video in which Michael told the officer Michael’s version of events. The 

State objected on the basis of hearsay. Michael acknowledged that the evidence 

was hearsay, but he asserted an exception applied for present sense impression. 

The district court sustained the State’s objection and excluded the evidence.

A. Standard of Review

Our standard of review for admission or exclusion of evidence as hearsay

is for corrections of errors at law. State v. Dessinger, 958 N.W.2d 590, 597 (Iowa 

2021). The district court has no discretion to deny admission of evidence on the 

basis of hearsay if the statement falls within an enumerated exception and has no 

discretion to admit evidence over a hearsay objection in the absence of a provision 

allowing it. State v. Veverka, 938 N.W.2d 197, 202 (Iowa 2020).

B. Analysis

“‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” State v. Shortridge, 589 N.W.2d 76, 82 (Iowa Ct. App. 1998); accord

Iowa R. Evid. 5.801(c). Hearsay is inadmissible at trial unless an exception to the 
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rule applies. Iowa R. Evid. 5.802. Both parties agree the video Michael sought to 

introduce was hearsay. They disagree on whether the present sense impression 

exception applies. 

The present sense impression exception permits admission of a hearsay 

statement when it is “[a] statement describing or explaining an event or condition, 

made while or immediately after the declarant perceived it.” Iowa R. 

Evid. 5.803(1). Determining whether a hearsay exception applies involves 

determining preliminary questions of fact. Veverka, 938 N.W.2d at 202. In this 

case, the preliminary fact questions are whether Michael’s statements to the officer 

involved describing or explaining the event and whether they were made while or 

immediately after Michael perceived it. In resolving that factual dispute, we give 

deference to the district court’s fact findings and uphold those findings if they are 

supported by substantial evidence. Id. While the district court made no specific 

fact findings as to the preliminary fact questions that form the foundation for a 

present sense impression exception, a finding that the exception requirements 

were not met is implicit in the district court’s decision to exclude the evidence. See 

State v. Tangie, 616 N.W.2d 564, 569 (Iowa 2000) (determining that findings on 

preliminary questions as to applicability of a hearsay exception are implicit in the 

district court’s ruling to admit the evidence).

“The rationale behind the present sense impression exception is that the 

declarant has no opportunity to fabricate a statement if the statement is made 

during or ‘immediately’ after the event.” Dessinger, 958 N.W.2d at 600. While the 

statement need not be contemporaneous with the event, the passage of time 

“tends to undercut the present sense impression.” Id. at 601.
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The exact length of time between the altercation and the arrival of the officer 

sporting the body-camera who talked to Michael is not revealed by the record. The 

record suggests the gap was more than a few minutes. Between the conclusion 

of the altercation and the time Michael begins to describe it to the officer, 

paramedics had arrived and had already treated the other patron, Michael had 

placed his jacket and other belongings in his truck, and Michael was sitting in his 

truck bed. These events suggest enough time had passed between the altercation

and Michael’s description of it that Michael was no longer describing something

while or immediately after he perceived it. This conclusion is bolstered by the fact 

that Michael knew the officer was there investigating the altercation, and Michael 

had sufficient time to collect himself and formulate a description of the altercation 

that was favorable to him. This time for reflection defeats the purpose of the 

present sense impression exception. The district court’s fact findings that the 

present sense impression exception did not apply is supported by substantial 

evidence. Therefore, it was not error to exclude Michael’s statements to the officer 

as hearsay.

V. Sufficiency of the Evidence

Michael claims the evidence was insufficient to find that he intended to 

cause serious injury or that he caused serious injury. Both findings are required 

to support Michael’s conviction. See Iowa Code § 708.4(1).

A. Standard of Review

We review sufficiency-of-the-evidence challenges for corrections of errors 

at law. State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). In evaluating the 

sufficiency of the evidence, we determine whether the finding of guilt is supported 
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by substantial evidence when the evidence is viewed in the light most favorable to 

the State. Id. Evidence is substantial if it would convince a rational fact finder that 

the defendant is guilty beyond a reasonable doubt. Id.

B. Analysis

The marshalling jury instruction required the State to prove:

1. On or about November 11, 2020, the defendant “assaulted” [the 

other patron];

2. The defendant “specifically intended” to cause a “serious injury”

to [the other patron];

3. [The other patron] sustained a “serious injury” as a result of the 

defendant’s actions;

4. The defendant was not justified.

The instructions defined “bodily injury” to mean “physical pain, illness, or any 

impairment of one’s physical condition.” They defined “impairment” to mean “to 

weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect 

in any injurious manner.” They defined “serious injury” to mean “a bodily injury 

that creates a substantial risk of death OR causes serious permanent 

disfigurement OR causes extended loss or impairment of the function of any bodily 

part or organ.” No objection was made to the instructions. Therefore, the 

instructions became the law of the case for purposes of appellate review on 

sufficiency-of-the-evidence challenges. State v. Schiebout, 944 N.W.2d 666, 671 

(Iowa 2020).

Michael challenges sufficiency of the evidence supporting the second and 

third element of the marshalling instruction. We will take the challenges in order.

Michael claims there was insufficient evidence to support a finding that he 

intended to cause serious injury. Viewed in the light most favorable to the verdict, 

the record establishes that Michael, by his own admission, intentionally stuck his 
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thumb in the other patron’s eye during the altercation. The other patron could feel 

Michael’s thumb in his eye socket and could “literally feel [his] eye moving” from 

the force of the gouging. While Michael claims he gouged the other patron’s eye 

to get the other patron to stop biting him, the other patron testified that he bit 

Michael in an effort to get Michael to stop gouging his eye. The jury clearly 

accepted the other patron’s version of events, which it was free to do. See State 

v. Shorter, 945 N.W.2d 1, 10 (Iowa 2020) (noting that the jury can believe some of 

a witness’s story while rejecting other parts and is “free to credit portions of both 

sides’ evidence and conclude the real story is somewhere in the middle”). 

Evidence of Michael sticking his thumb in the other patron’s eye socket out of anger

with such force that the other patron could feel his eyeball moving is sufficient to 

allow a reasonable jury to conclude that Michael intended to cause serious 

permanent disfigurement or extended loss or impairment of the function of the 

other patron’s eye. There is sufficient evidence supporting element two of the 

marshaling instruction.

Michael also contends the evidence was insufficient to prove he caused a 

serious injury. He argues that the other patron did not sustain a serious injury 

because his vision returned two months later, his scarring on his knee is minimal, 

and his shoulder injury does not limit his activity. 

We find it unnecessary to address the injuries to the other patron’s knee or 

shoulder, as the injury to his eye alone is sufficient to find Michael caused serious 

injury. As a result of the altercation, the other patron’s eye was swollen shut. The 

white part of his eye had turned blood red as a result of hemorrhaging. An 

optometrist testified that the gouging of the eye resulted in the worst case of blood 
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behind the white part of the eye he had seen in his thirty-five years of practice. 

The other patron was in pain for weeks, and three months later the eye remained 

tender. For that three-month period, his vision was substantially reduced. At the 

time of trial, about four and one-half months after the altercation, the other patron 

still suffered “a sandy feeling” in that eye. This evidence is sufficient to support the 

jury’s finding that the other patron suffered extended loss or impairment of the 

function of a bodily member or organ, specifically his eye. See State v. Roby, 

No. 13-0166, 2014 WL 465790, at *4–5 (Iowa Ct. App. Feb. 5, 2014) (finding the 

eye is “[u]ndoubtedly” a “bodily member or organ” and evidence was sufficient to 

establish serious injury when the victim could not see out of her swollen eyes for 

more than a day, the orbital blowout fracture she suffered required surgical repair, 

she suffered pain for more than a month after the surgery, and she continued to 

suffer a constant scratching sensation in her eye up to the time of trial).

Substantial evidence supports the jury’s verdict on all elements of the 

offense. Michael’s challenge to the sufficiency of the evidence fails as a result.

VI. New Trial Based on Self-Defense

Michael filed a motion seeking a new trial. He argued the greater weight of 

the evidence shows he acted in self-defense, so he should be granted a new trial. 

The district court denied his motion. Michael reprises the argument on appeal.

A. Standard of Review

The district court may grant a new trial when the verdict rendered is contrary 

to the weight of the evidence. State v. Ernst, 954 N.W.2d 50, 60 (Iowa 2021). A 

ruling on a motion for new trial is reviewed for abuse of discretion. Id. A new trial 

based on a weight-of-the-evidence challenge should only be granted in 
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extraordinary cases “in which the evidence preponderates heavily against the 

verdict rendered.” Id. (quoting State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016)). 

Appellate review of a weight-of-the-evidence challenge is limited to a review of the 

discretion exercised by the district court—it is not an independent review of 

whether the verdict is against the weight of the evidence. State v. Linderman, 958 

N.W.2d 211, 218 (Iowa 2021).

B. Analysis

The district court gave a detailed explanation of why the evidence did not 

preponderate heavily against the verdict that rejected Michael’s claim of selfdefense. That explanation included the district court’s conclusion that Michael 

“clearly continued the incident” by following the other patron out the door, failed to 

follow an alternative course of action by staying in the store or getting into his own 

vehicle, and used unreasonable force by gouging the other patron’s eye with his 

thumb. Based on this evidence, the court not only found the evidence did not 

preponderate heavily against the verdict, it found “the evidence presented actually 

weighs heavily in favor of the verdict that this jury rendered.” We find no abuse of 

discretion in this ruling or the reasoning behind it. 

VII. Conclusion

The district court did not abuse its discretion by refusing to postpone the 

trial. The district court’s finding that the present sense impression exception to the 

hearsay rule did not apply was supported by substantial evidence. As a result, no 

error was committed in excluding the body-camera video of Michael’s statements 

to the investigating officer. Substantial evidence supports the jury’s verdict finding 

that Michael intended to cause serious injury and the other patron suffered a 
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serious injury. Finally, the district court did not abuse its discretion in refusing to 

grant a new trial because the evidence did not preponderate heavily against the 

guilty verdict rejecting Michael’s claim of self-defense. Therefore, we affirm. 

AFFIRMED.