                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1874
                            Filed November 12, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN J. BUTLER,
     Defendant-Appellant.
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      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      Justin Butler appeals from judgment entered upon his conviction for

second-degree burglary. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Alexandra Link, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

      Justin Butler appeals from judgment entered upon his conviction for

second-degree burglary, contending the jury’s finding that he was the perpetrator

is contrary to the weight of the evidence. See Iowa R. Crim. P. 2.24(2)(b)(6)

(allowing trial court to grant a new trial “[w]hen the verdict is contrary to law or

evidence”).

      Our review of the district court’s denial of Butler’s motion for new trial is for

an abuse of discretion. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

District courts are to use this discretion sparingly and in a manner that preserves

the jury as the principal trier of fact. Id. The question for the district court is

whether the evidence is “contrary to the weight of the evidence.” State v.

Reeves, 670 N.W.2d 199, 201 (Iowa 2003). On appeal, however, we are limited

to reviewing the district court’s exercise of discretion and may not review “the

underlying question of whether the verdict is against the weight of the

evidence.” Id. at 203.

      Here, the verdict is based upon the identification of Butler by Karl and

Margaret Hickerson.      At about 2:00 a.m. on May 27, 2013, Karl had come

downstairs and found the back door propped open and basketball shoes in the

hallway. He awakened Margaret and began searching the house, turning on all

the lights and making sure all the doors were locked. When no intruder was

found, Margaret took the family dog and went back upstairs to their bedroom.

She then heard a noise from another room and called to Karl. As she opened

the bedroom door, a young man ran out the adjacent room and down the stairs.

Karl was coming up the stairs at the time and the intruder ran past him. The
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intruder put on the basketball shoes and tried to leave the house but was unable

to because he could not get the door unlocked. Karl then confronted the intruder

and after some discussion let him out of the house.1 The Hickersons then called

the police and gave a description of the intruder. The couple recognized Butler

as the man in their house when they later came upon his picture online, and

when presented with a photo array, Karl immediately picked Butler’s photo.

       At trial, Karl testified, “I was probably four feet away from him with the light

behind me, so the light was in his face while we were talking there. I got a very

good look at him.” Karl identified Butler and stated he had no doubt: “He has

different hair.   He had short hair, unbraided, no mustache, no beard, clean

shaven, but it’s the same face.” Margaret testified she followed the intruder down

some of the stairs and was able to see him from above and the side while he

talked to Karl. She identified Butler as the intruder. The State also admitted

without objection brief recordings of jail phone conversations during which Butler

stated they could not convict him without proof, and that “by the time we do go to

trial . . . it’ll be like eight months since you know like the crime actually happened

. . . how . . . they going to remember a face they seen one time eight months

ago?” Butler’s mother testified that Butler has always had facial hair and that his

hair in May 2013 was the same as it was at trial. She also testified he was at her

home on May 27 playing video games and “he would never leave.” The jury

found Butler guilty, and the district court overruled the motion for new trial,

1
  Karl testified the intruder had “raised his hands and he said, I have nothing of yours.
You want me to leave and I want to leave . . . . I can’t because you’ve locked all the
doors.” The next day, Karl realized three or four twenty-dollar bills were missing from his
wallet in the sitting room adjacent to their bedroom. Karl reported the missing money to
the police.
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stating: “[T]he weight of the credible evidence, after the verdict—is indicating to

the Court that there was adequate evidence under that standard to allow the jury

to convict Mr. Butler based on the facts as elicited by the State through the

witnesses . . . .” Finding no abuse of discretion, we affirm.

       AFFIRMED.
