Opinion
No. 3-159 / 02-0833.
Filed March 12, 2003.
Appeal from the Iowa District Court for Polk County, GEORGE BERGESON, Judge.
Jon Payton appeals from the district court's denial of his second application for postconviction relief from his convictions for sexual abuse and assault with intent to commit sexual abuse. AFFIRMED.
Paul Rosenberg of Paul Rosenberg Associates, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Jon Payton appeals from the district court's denial of his second application for postconviction relief from his convictions for sexual abuse and assault with intent to commit sexual abuse. Generally, we review an appeal from the denial of an application for postconviction relief for errors of law. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). Where a defendant claims he is entitled to a new trial based on witness recantation, we will not interfere unless there is a clear abuse of discretion. Jones v. State, 479 N.W.2d 265, 275 (Iowa 1991).
Payton's three children testified at his December 1990 trial that he sexually abused them. Payton's conviction was upheld by our supreme court in State v. Payton, 481 N.W.2d 325 (Iowa 1992). In his first postconviction relief hearing held in May 1997, Payton's two daughters testified and recanted their trial testimony. The district court denied relief, finding the circumstances surrounding the recantations made them suspect. Our court affirmed. In 1999, Payton's son also recanted his claim that his father sexually abused him. This is the basis for Payton's second application for postconviction relief.
Payton contends he is entitled to a new trial based on newly discovered evidence. Although the recantations on which motions for new trial are based are frequently referred to as newly discovered evidence, the claim is actually that the defendant was denied a fair trial because of false testimony. State v. Taylor, 287 N.W.2d 576, 578 (Iowa 1980). Motions for new trial based on recantations are to be carefully scrutinized and, even if true, do not necessarily entitle a defendant to a new trial. Id. Furthermore, recantations are looked upon with suspicion. Id. The trial court is not required to believe the recantation. Id.
The district court did not find the son's recantation to be credible. The court reviewed the evidence and transcript from the original trial and deemed the son's original testimony to be more credible. At Payton's trial, the testimony of his three children regarding his abuse was consistent. The testimony was corroborated by forensic medical testimony. Payton's son recanted his testimony after his sisters pressured him, and as his father neared release from prison. One sister told him that she "knew it didn't happen to him also and that it would feel better to get it off his chest." His other sister told him "the truth would come out." We give weight to the lower court's finding of witness credibility. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Because the son's recantation is not credible, Payton is not entitled to a new trial based upon it.