IN THE COURT OF APPEALS OF IOWA

No. 22-0276

Filed January 11, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

MIKE FIDENCIO PEREZ JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Jeffrey D. Bert, 

Judge.

Mike Perez appeals his guilty verdicts for assault with intent to inflict serious 

injury and two counts of willful injury. AFFIRMED.

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

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

BOWER, Chief Judge.

Mike Perez Jr. appeals his guilty verdicts for assault with intent to inflict 

serious injury and two counts of willful injury. Perez challenges the admission of 

certain photographs into evidence and asserts substantial evidence does not 

support the jury’s findings of serious injury. We affirm.

I. Background Facts & Proceedings.

Early in the morning of May 15, 2021, Ashlee Hayes and Alon Berry went

to a party in Muscatine hosted by an acquaintance of Hayes. They parked their 

car in the backyard of the house, and Hayes got out and hugged the host. As she 

spoke with the host, Berry got out of the car.

Three other men Hayes knew stood near the car: Perez, Miguel Aguilar, 

and Jaime Gomez. Aguilar asked Hayes who Berry was “and if he was from 

anything.” Hayes saw the three men approach Berry and turned back to the host 

and said maybe they should leave. Berry saw the men between him and Hayes 

and heard a man yell at him. Perez punched Berry in the face. Hayes heard 

rustling behind her and, when she turned back around, she saw Perez, Aguilar, 

and Gomez “beating [Berry], kicking him, throwing . . . pieces of cement on top of 

him.” They pushed him out into the alley, punching him in the face and chest. 

Berry fell, and the men started kicking him. Berry saw blood on his hand from 

where he’d been hit in the cheek and then blacked out. Hayes ran toward the 

group, where Berry was on his back on the ground with the three men standing 

over him, still punching and kicking him. Hayes screamed at the men, dove 

between Perez and Aguilar, and tried to push them away from Berry. Gomez hit 

Hayes on the back of her head, and the men punched Hayes in the face several
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more times. Perez picked up a concrete chunk and struck Hayes with it. Hayes 

then pulled out a pocketknife and “stabbed whoever was above [her]”—which 

turned out to be Perez and Gomez. Perez and Gomez continued screaming at 

her, Perez telling Gomez to get his gun, and they ran off. Hayes, not knowing 

where Berry was, got in her car and drove down the street to safety. Hayes called 

911, and got out of her car to try to find Berry. She worried the trio would find her 

again. Once she encountered law enforcement, an ambulance took her to the 

hospital.

Berry woke up outside a different house, but he did not know how he got 

there. Berry saw Perez, Aguilar, and Gomez throwing bricks on him, hitting his 

head, chest, stomach, and legs. Berry blacked out again. He woke up again 

outside a third house, alone. Berry called 911 for help and was found by law 

enforcement.

The Muscatine hospital initially treated Hayes, suturing wounds and

wrapping her face. She was transferred to the University of Iowa Hospitals for 

further care. Once there, her sutures were replaced, and she consulted with an 

eye specialist and a plastic surgeon. Hayes needed multiple surgeries to remove 

glass and debris from her face. Hayes had four “very severe” lacerations several 

centimeters long across her forehead and above one eye; some were down to the 

bone and required layers of sutures. She also had two smaller lacerations inside 

her lower eyelid. At the time of trial, Hayes had three visible scars on her forehead 
4

and left eyelid.

1 Hayes testified she has short-term memory loss, some bleeding 

on her brain from the head trauma, and seizures.

Berry was examined at the Muscatine hospital, then transported to the 

University of Iowa Hospitals for additional care. He sustained broken bones in his 

left cheek and jaw, a back injury, internal bruising of his ribs, and significant 

bruising and contusions all over his body. He could not feel his leg due to a 

pinched vein in his back that would require surgery to fix. Berry testified he was 

bed-ridden at home for six weeks after the assault and needed help to move 

around. He had significant cuts, bruising, and swelling to his face and large bruises 

on his legs.

On May 26, 2021, the State charged Perez with attempted murder, two 

counts of willful injury, criminal gang participation, and going armed with intent.2 

Perez sought to exclude some photo exhibits of the victims’ injuries as “too 

gruesome,” but the district court denied the request. On August 13, a jury found 

Perez guilty of the two counts of willful injury and assault with intent to commit 

serious injury (a lesser-included offense to attempted murder) but acquitted him of 

going armed with intent.

1 The jury was able to see Hayes’s scars at trial. The record does not contain a 

post-healing photograph of Hayes’s scars, though there is a photo of her with

sutures and bruises from the assault. 

2 Jaime Gomez was charged along with Perez. Miguel Aguilar was added as 

codefendant two weeks later. Aguilar and Perez went to trial together on all 

charges except the criminal gang participation charge, which was severed for a 

later trial. Trial on the gang participation charge did not occur within the speedytrial window and was dismissed with prejudice.
5

Perez appeals, asserting the photos of the victims’ injuries were more 

prejudicial than probative and there is insufficient evidence to support a finding 

either victim sustained a serious injury.

II. Standard of Review.

“We review evidentiary rulings for an abuse of discretion. An abuse of 

discretion occurs when a district court exercises its discretion on grounds or for 

reasons clearly untenable or to an extent clearly unreasonable.” State v. Wilson, 

878 N.W.2d 203, 210–11 (Iowa 2016) (internal citation omitted). “We review 

challenges to the sufficiency of the evidence for correction of errors at law.” State 

v. Niederbach, 837 N.W.2d 180, 190 (Iowa 2013).

III. Analysis.

Photos. Perez asserts photos of Hayes’s and Berry’s injuries were not 

relevant and, alternatively, if relevant, were more prejudicial than probative. He 

claims the photos were meant to ignite the jury’s feelings; unnecessarily 

cumulative; and not probative because Hayes, Berry, and two treating physicians 

were able to testify about the injuries.

Evidence is relevant if it has “any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” Iowa R. Evid. 5.401.

To determine whether evidence should be excluded under [Iowa 

Rule of Evidence] 5.403, we apply a two-part test. First, we consider 

the probative value of the evidence. Second, we balance the 

probative value against the danger of its prejudicial or wrongful effect 

upon the triers of fact. Evidence is unfairly prejudicial when it

appeals to the jury’s sympathies, arouses its sense of 

horror, provokes its instinct to punish, or triggers other 

mainsprings of human action [that] may cause a jury to 
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base its decision on something other than the 

established propositions in the case.

But, in a sense, all powerful evidence is prejudicial to one side. The 

key is whether the danger of unfair prejudice substantially outweighs 

the evidence's probative value.

Niederbach, 837 N.W.2d at 203 (second alteration in original) (internal citations 

and quotation marks omitted).

The objected-to photos included seven photos of Hayes and three of Berry 

while still bloody from the assaults. Perez’s counsel argued the photos did not 

prove anything about the wounds but were meant for an emotional reaction. The 

district court ruled “the photographs are probative to the charges filed by the State.” 

In performing an Iowa Rule of Evidence 5.403 analysis, the court determined “the 

probative value does exceed the danger of unfair prejudice to the defendants.” 

The court noted the defense could mitigate the prejudice by questioning the 

medical witnesses how the initial bloody appearance related to the seriousness of 

the victims’ injuries.

“[P]hotographs are not inadmissible simply because they are ‘gruesome or 

may tend to create sympathy . . . if there is just reason for their admission.’” Id. at

202 (citation omitted). “Trial courts have discretion in determining whether the 

value of pictures as evidence outweighs their grisly nature.” Id. (citation omitted). 

An element the State was required to prove—and Perez disputes—was that both 

Hayes and Berry sustained serious injury. “The prosecution has leeway in what 

evidence to use to prove injuries, subject to the district court’s discretion under rule 

5.403.” Id. The challenged photos showed Hayes’s and Berry’s physical condition 

when found by police and upon entering the hospital, giving the jury a fair depiction 

of their injuries immediately after the assault. The photos were not so unfairly
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prejudicial as to substantially outweigh their probative value. See id. at 203. The 

district court did not abuse its discretion by allowing into evidence photos of Hayes 

and Berry before their injuries were cleaned up by hospital personnel.

Sufficiency of the evidence. Perez also contests the State’s proof on the 

serious-injury element of his willful-injury convictions, asserting the injuries to 

Hayes and Berry “did not rise to the level of serious injury.”3 He states Hayes and 

Berry were not at risk of death and “Hayes did not suffer extended loss or 

impairment.” 

When we review a challenge to the sufficiency of the evidence 

supporting a guilty verdict, we consider all of the evidence in the 

record in [a] light most favorable to the State, including all reasonable 

inferences that may be fairly drawn from the evidence. We uphold 

the verdict if there is substantial evidence in the record supporting it.

Id. at 216 (alteration in original) (internal citations and quotation marks omitted).

Iowa Code section 702.18 establishes three alternatives for “serious 

injury.”4 The applicable alternative here was a “[b]odily injury which does any of 

the following: (1) [c]reates a substantial risk of death[;] (2) [c]auses serious 

permanent disfigurement[; or] (3) [c]auses protracted loss or impairment of the 

function of any bodily member or organ.” 

3 A necessary element in the willful injury instruction was, “The defendant Mike 

Perez’s acts caused serious injury to [the victim] as defined in [a separate 

instruction].”

4 The jury instruction definition of “serious injury” provided:

A serious injury is a disabling mental illness, a condition which 

cripples, incapacitates, weakens or destroys a person’s normal 

mental functions, or a bodily injury which creates a substantial risk of 

death or which causes serious permanent disfigurement or extended 

loss or impairment of the function of any bodily part or organ.
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Hayes underwent multiple surgeries to clean debris from her lacerations 

and had facial scarring at the time of trial. We recognize scarring is not necessarily 

a serious permanent disfigurement; it is left “to the jury to determine whether a scar 

constitutes a serious permanent disfigurement.” State v. Hanes, 790 N.W.2d 545, 

554 (Iowa 2010); see Iowa Code § 702.18(1)(b)(2) (2021). She also testified to 

having short-term memory loss and seizures. Reviewing the record in the light 

most favorable to the State, substantial evidence supports the jury’s finding Hayes 

suffered a serious injury.

As to Berry, Perez only contends he was not at risk of death from his 

injuries; he does not address the permanent disfigurement or protected loss or 

impairment of any bodily member or organ. We need not decide if the evidence 

supported a finding of substantial risk of death, as the evidence of Berry’s broken 

bones and prolonged recovery was certainly sufficient for the jury to conclude 

Berry was seriously injured.

AFFIRMED.