Opinion
No. 5-518 / 04-0971
Filed July 27, 2005
Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.
James Junior Whited II appeals following his convictions and sentences for three counts of lascivious acts with a child and two counts of sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
James Junior Whited II, Anamosa, pro se.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Douglas Hammerand, Assistant Attorney General, and Richard Davidson, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
James Junior Whited II appeals following his convictions and sentences for three counts of lascivious acts with a child and two counts of sexual abuse in the third degree. He contends the district court abused its discretion in failing to grant his motion for a new trial. We affirm.
I. Background Facts and Proceedings
James Whited lived with T.R. and her mother, Lisa, during 1997 and 1998. In January 1998, a few days after T.R.'s thirteenth birthday, Lisa was admitted to the hospital. Whited took care of T.R. while Lisa was hospitalized. T.R. testified that during this time period, Whited began sexually abusing her. T.R.'s testimony describing the abuse is detailed in prior opinions of this court and need not be repeated here. See State v. Whited, No. 03-0561 (Iowa Ct.App. July 14, 2004); see also State v. Whited, No. 00-1333 (Iowa Ct.App. Feb. 6, 2002). Whited moved out of the house in October 1998. The sexual abuse was not reported to the Iowa Department of Human Services until April 1999 when the school nurse found a note written by T.R. to a friend that referred to the abuse.
Charges were filed against Whited in August 1999. He was tried, convicted, and sentenced on three counts of lascivious acts with a child and two counts of third-degree sexual abuse in violation of Iowa Code sections 709.8 and 709.4(2) (1997). Whited appealed that conviction, and we reversed and remanded for a new trial because of jury misconduct. State v. Whited, No. 00-1333 (Iowa Ct. App. Feb. 6, 2002).
Whited was tried again and convicted of the same charges. He filed a motion for new trial, which the district court denied. Whited appealed, contending the district court applied the wrong standard in ruling on his motion for new trial. We remanded to the district court to reconsider Whited's motion using the weight-of-the-evidence standard set forth in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). Upon reconsideration, the district court again denied the motion for new trial.
Whited appeals. He contends the court abused its discretion in failing to grant his motion for new trial.
II. Standard of Review
We review a denial of a motion for new trial for abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). The district court has broad discretion in ruling on a motion for new trial. Id.; Iowa R. App. P. 6.14(6)( c). When considering a motion for new trial, the district court must apply the weight-of-the-evidence standard. Ellis, 578 N.W.2d at 659. A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 658. Our supreme court has advised trial courts to use their discretion to grant a new trial "sparingly" for fear of lessening the role of the jury as the principal trier of fact. Id. at 659.
On a weight-of-the-evidence claim, appellate review is limited to a review of the exercise of discretion by the trial court, not of the underlying question of whether the verdict is against the weight of the evidence. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). The appellate court is limited to examining the evidence produced at trial to determine whether the district court's determination that the evidence does or does not "preponderate heavily against the verdict" is a clear and manifest abuse of discretion. Id. To establish such abuse, the defendant must show that the district court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. at 202.
III. Discussion
Whited argues the weight of the evidence did not support a guilty verdict. Therefore, he contends the district court abused its discretion in denying his motion for new trial. He maintains the State's case against him rested solely upon the testimony of T.R. who was not a credible witness.
The State acknowledges there were some inconsistencies between T.R.'s trial testimony and her testimony in a deposition taken in May 2000. However, the State contends that these inconsistencies fall far short of rendering T.R.'s trial testimony incredible as a whole in view of T.R.'s age at the time the abuse occurred and the passage of time since her deposition was taken. State v. Speaks, 576 N.W.2d 629, 632 (Iowa Ct.App. 1998).
In its ruling denying Whited's motion for new trial, the district court stated:
The court has reconsidered its prior ruling under the Ellis standard and finds that the trial record including a consideration of the credibility of the witnesses supports the verdict and that the verdict is not contrary to the weight of the evidence.
Credibility of witnesses is key in a weight-of-the-evidence determination. Reeves, 670 N.W.2d at 207. Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate witnesses. State v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000). We give great weight to a district court's credibility findings. State v. O'Shea, 634 N.W.2d 150, 156 (Iowa Ct.App. 2001). A review of the record provides no reason why that deference should not be granted in this case. We conclude the district court properly considered the weight of credible evidence. We find no abuse of discretion in the court's decision not to grant a new trial.