Opinion
No. 2-105 / 01-1039.
Filed March 13, 2002.
Appeal from the Iowa District Court for Clinton County, DAVID SIVRIGHT, Judge.
Defendant claims his trial counsel was ineffective for failing to file a motion for new trial. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Wolf, County Attorney, and Jennifer Ostergren, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Cecil Hansen claims his trial counsel was ineffective for failing to file a motion for new trial after his conviction for tampering with a witness in violation of Iowa Code section 720.4 (1999). We affirm.
Hansen and Richard McGinnis had a longtime friendship. McGinnis, however, testified before a grand jury concerning the illegal drug activities of David Hansen, the defendant's nephew. McGinnis began hearing the Hansen family was upset about his testimony and feared retaliation. In October 2000 McGinnis and Hansen came face-to-face at a gas station. McGinnis testified that Hansen then:
came up to the driver's side door [of the truck], and what I took as a threat, he said why didn't I have a bunch of broken legs. Indicated about what-about what I said about David.
Hansen denied threatening McGinnis. He did, however, admit to asking him, "What the fuck are you testifying on David for?"
Hansen does not claim any error by the district court. Instead, he claims his trial counsel was ineffective for failing to seek a new trial based upon this conflict in the evidence.
Iowa Rule of Criminal Procedure 2.24(2)(b)(6) provides the district court may grant a new trial "when the verdict is contrary to . . . [the] evidence." The standard of review for granting a new trial is contrary to the "weight of the evidence." State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Our supreme court has stated:
Trial courts have wide discretion in deciding motions for new trial. Nevertheless, we caution trial courts to exercise this discretion carefully and sparingly when deciding motions for new trial based on the ground that the verdict of conviction is contrary to the weight of the evidence. We have confidence in our trial courts that they will heed this admonition; a failure to follow it would lessen the role of the jury as the principal trier of the facts and would enable the trial court to disregard at will the jury's verdict.
Id.(citations omitted).
All trials have conflicts in testimony, and the factual inconsistencies in this case were properly within the province of the jury. The conflict in this case was insufficient to support a grant of a new trial. Accordingly, Hansen's claim that his trial counsel was ineffective must fail.
AFFIRMED.