Opinion
No. 0-653 / 00-286.
Filed December 13, 2000.
Appeal from the Iowa District Court for Wright County, GARY L. McMINIMEE, Judge.
The State appeals from the district court's grant of the defendant's motion for a new trial. AFFIRMED.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Michael E. Houser, County Attorney, for appellant.
Linda Del Gallo, Appellate Defender, and Shellie L. Knipfer, for appellee.
Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
I. Background Facts and Proceedings .
Martin was charged with second-degree criminal mischief following allegations that he threw rocks at his brother's truck with resulting damage to its door and window. Martin denied these allegations and represented himself at trial.
Martin's defense was premised on his assertion that the physical evidence of damage to the truck was incompatible with the State's rock-throwing theory. To that end, he offered the actual "door skin" from the truck to prove that the damage claimed could not have been caused by a rock. On cross-examination by Martin, Jeff Feaster, the person who repaired the truck, testified:
Q. Would you measure the distance between the marks of impact on this door for me? . . .
A. Five inches side to side and probably roughly around six and a quarter up and down.
Q. What about back and forth this way and this way?
A. Three, four, three, looks like about four, too.
Q. It's almost a square pattern. They're almost perfectly square, three by three and a half or four?
A. Pattern?
Q. Am I right?
A. Yeah, roughly makes up a square.
Q. Like you might find on a piece of equipment that had U-bolts sticking out of it; is that right? . . .
A. I'm not going to speculate. I don't know. I'm not an accident reconstructionist. . . .
In the State's closing remarks, the prosecutor told the jury:
Some may even be thinking, wait a second. Didn't we hear something about bolts on a — on a skid loader or on a tractor or something. Where did you hear that? You heard that from Mr. Martin and what do the instructions say, that's not evidence. He didn't take the witness stand and didn't testify under oath and that's fine. The instructions say you don't draw any conclusions from that.
The jury returned a guilty verdict. Martin filed a motion for new trial. At a hearing on this motion, the court admitted testimony from Timothy Bacon, an auto-body repairman, who testified that the damage to the door panel could not have been caused by a rock. The court granted Martin's motion for new trial finding that the verdict was against the weight of the evidence.
On appeal the State argues the court's ruling on Martin's motion was erroneously based on new evidence from Bacon and the impropriety of the prosecutor's remarks during final argument.
T II. The Merits .
We review for an abuse of discretion. Pratt v. Piper, 500 N.W.2d 716, 716 (Iowa App. 1993). In order to show an abuse of discretion, one generally must show that the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. In ruling upon motions for new trial the trial court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R. App. P. 14(f)(3). The court is slower to interfere with the grant of a new trial than with its denial. Iowa R. App. P. 14(f)(4).
The trial court granted Martin's motion based on Iowa Rule of Criminal Procedure 23(b)(6), which provides that a court may grant a new trial "[w]hen the verdict is contrary to law or evidence." A grant of a new trial necessitates a finding that the verdict was contrary to the weight of the evidence, meaning that the court must find that a greater amount of credible evidence supports one side of an issue or cause than the other. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998) (citing Tibbs v. Florida, 457 U.S. 31, 32, 102 S.Ct. 2211, 2213, 72 L.Ed.2d 652, 655 (1982)). In making this determination, the trial court must weigh the evidence and consider the credibility of the witnesses. Id. (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-48 (2d ed. 1982)). If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. Id. While the granting of this motion is within the trial court's discretion, this discretion should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id.
In granting this motion, the trial court stated:
This Court believes that several factors contributed to the verdict in this case. The Defendant did not make effective arguments and did not forcefully argue that the dents in the door could not have been caused by a rock. Secondly, the prosecutor during his initial final argument, at the very time he was discussing the critical causation issue with the jury, commented on the Defendant's failure to testify . . . [T]his Court believes that even though it had also instructed the jury, at the Defendant's request, regarding the Defendant's right not to testify, the timing of the prosecutor's specific remarks about the Defendant's failure to testify, had a substantial impact on the jury that likely contributed to the verdict being against the weight of the evidence.
* * *
The door skin damage consisted not of a large single dent, but rather of four distinct sharp dents of approximately equal severity configured in the shape of a square with no apparent damage within the square. Moreover, the metal appeared to be gouged in the areas of the dents with the gouges running in different directions. This Court is of the view that these are all matters that are observable by a lay person and strongly suggest to the untrained eye that the door damage could not have been caused by a grapefruit sized rock. When this evidence is duly considered with all the other evidence in the case, the verdict is against the weight of the evidence.
After reviewing the record we are unable to say the district court abused its discretion by granting Martin's motion for a new trial. Contrary to the State's contention, the court considered more than Bacon's testimony or the propriety of the prosecutor's remarks during final argument. The foregoing includes the court's express reference to the physical evidence and common sense impressions or inferences to be drawn therefrom. Even if Bacon's testimony was erroneously received or considered, it was merely cumulative of the court's independent assessment of the weight of the evidence. The same is true for the significance of the prosecutor's remarks during final argument.
We accordingly affirm.
AFFIRMED.
MAHAN and VAITHESWARAN, JJ., concur specially.
I concur specially. I believe Bacon's testimony was erroneously received and considered. However, I agree with the majority the district court considered more than Bacon's testimony in deciding to grant the motion for new trial and the testimony was cumulative to the court's assessment of the weight of the evidence.
VAITHESWARAN, J., joins this special concurrence.