                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2060
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON RAY BALL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Dale E. Ruigh,

Judge.



      The defendant challenges his sentence for sexual exploitation of a minor,

second offense, a class “D” felony, in violation of Iowa Code section 728.12(3)

(2013).   CONVICTION CONDITIONALLY AFFIRMED, RULING ON MOTION

VACATED, AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       Jason Ball appeals his conviction, sentence, and judgment for sexual

exploitation of a minor, second offense, a class “D” felony, in violation of Iowa

Code section 728.12(3) (2013). Ball contends the district court entered an illegal

sentence by sentencing him as a second offender. Ball further contends the

district court applied the wrong standard of review to his motion for new trial.

                                          I.

       In July 2012, a cell phone was found in a parking lot of a school. The cell

phone was placed in a mailbox inside the school with a note stating the cell

phone was found in the parking lot.            Two school employees, attempting to

ascertain the identity of the phone’s owner, discovered explicit photographs,

including an infant with a naked adult male, on the phone. As a result, the

employees contacted the sheriff’s office.         The sheriff’s office determined the

phone belonged to Ball. A detective met with Ball, and Ball consented to a

search of his cell phone.     The cell phone contained explicit photographs of

children engaged in sexual acts. At the time of these events, Ball was on pretrial

release for a charge of sexual exploitation of a minor. Ball pleaded guilty to

charge in December 2012.

       In May 2014, Ball was charged by trial information with a second offense

of sexual exploitation of a minor arising out of his possession of the explicit

pictures found on his cell phone in July 2012. The matter went to trial, and in

August 2014, a jury found Ball guilty. He filed a motion for a new trial, which was

denied. Judgment was entered against him.
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                                         II.

       Our court may correct an illegal sentence at any time and reviews the

district court’s sentence for correction of errors at law.    State v. Hoeck, 843

N.W.2d 67, 70 (Iowa 2014); State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008).

Our review of questions of statutory interpretation is for corrections of errors at

law. State v. Rhiner, 670 N.W.2d 425, 428 (Iowa 2003). Our court reviews a

district court’s denial of a motion for a new trial for an abuse of discretion. State

v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

                                         III.

       Ball contends the district court imposed an illegal sentence by sentencing

him as a second offender when the offense conduct underlying the second

offense occurred prior to conviction for the first offense. The Iowa Supreme

Court has consistently held “this state follow[s] the general rule that each offense

must be complete as to a conviction and sentencing before commission of the

next in order to qualify for the enhancement of penalty under a habitual offender

statute, unless the legislature expressly provided otherwise.” State v. Freeman,

705 N.W.2d 286, 291 (Iowa 2005) (citing State v. Wade, 467 N.W.2d 283, 285

(Iowa 1991)); State v. Hollins, 310 N.W.2d 216, 217–18 (Iowa 1991); State v.

Clark, 351 N.W.2d 532, 536 (Iowa 1984); State v. Robinson, 262 N.W.2d 270,

271–72 (Iowa 1978); State v. Tillman, 228 N.W.2d 38, 41–42 (Iowa 1975); State

v. Conley, 222 N.W.2d 501, 503 (Iowa 1974)). The court acknowledged in Wade

that the general rule for recidivism statutes is the “second offense must come

after the earlier conviction.” 467 N.W.2d at 285; see also Freeman, 705 N.W.2d

at 291. However, Wade held the general rule was inapplicable in that case due
                                         4

to the express terms of the statute at issue. Wade, 467 N.W.2d at 285. The

court stated the “general rule must yield to specific language in the statute

defining its terms.” Id. “The legislature understood the general rule applicable to

habitual offender statutes and exercised its authority to exclude the application of

the rule by including specific language evidencing its intent to do so in our

enhancement statute” in Wade. Freeman, 705 N.W.2d at 291.

       Here, Iowa Code section 728.12(3) states:

       For purposes of this subsection, an offense is considered a second
       or subsequent offense if, prior to the person’s having been
       convicted under this subsection, any of the following apply:
              a. The person has a prior conviction or deferred judgment
       under this subsection.

The statute is clear—the defendant committed a second offense if he had a prior

conviction at the time of his conviction for the second offense. See, e.g., Wade,

467 N.W.2d at 285 (interpreting the definition of a second or subsequent offense

in section 204.411 as requiring a prior conviction to convict someone as a

second offender and not requiring “the first conviction to precede the commission

of the second offense”); State v. Sanford, No. 11-0581, 2013 WL 264644, at *2

(Iowa Ct. App. Jan. 24, 2013) (interpreting the language of “[e]ach previous

violation on which conviction or deferral of judgment was entered prior to the date

of the offense charged shall be considered and counted as a separate previous

offense” as the legislature exercising its authority to exclude application of the

general rule). Iowa Code section 728.12(3) does not require the first conviction

to precede the commission of the second offense. “When a statute is plain and

its meaning clear, we do not search for some other meaning beyond the express

terms of the statute.” Wade, 467 N.W.2d at 285.
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       Ball is a second offender if he has a prior conviction under Iowa Code

section 728.12(3) at the time of his second conviction under that section. Such is

the case here. Thus, the court did not err when sentencing Ball for a second

offense.

                                        IV.

       Ball contends the district court erred and abused its discretion when using

the wrong standard to deny Ball’s motion for new trial. The district court should

grant a motion for new trial only if the jury’s verdict is contrary to the weight of

evidence. Shanahan, 712 N.W.2d at 135 (citing State v. Ellis, 578 N.W.2d 655,

657–59 (Iowa 1998)). The verdict is contrary to the weight of the evidence when

there is a “greater amount of credible evidence support[ing] one side of an issue

or cause than the other.” Id. (citing Ellis, 578 N.W.2d at 658). The “district court

has considerable discretion when determining a motion for new trial under the

weight-of-the evidence test.” Id.

       Here, the State concedes the district court applied the incorrect standard

when ruling on Ball’s motion for new trial.     The district court considered the

“sufficiency of the evidence” and stated “the weight of the effect of that evidence

is for the jury” to consider. The district court should have applied the weight-of-

the-evidence standard. Id. This case must be remanded for application of the

correct standard. See, e.g., State v. Neufeldt, No. 12-1436, 2013 WL 1457054,

at *2 (Iowa Ct. App. Apr. 10, 2013) (concluding the court applied an incorrect

standard in its ruling on the motion for new trial and vacating the ruling on the

motion for a new trial); State v. Deboer, No. 12-1248, 2013 WL 3457183, at *5

(Iowa Ct. App. July 10, 2013) (holding the district court applied the wrong
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standard to a motion for new trial and remanding for the court to decide the

motion under the Ellis standard).

                                        V.

       We conditionally affirm Ball’s conviction and sentence, vacate the district

court’s ruling on the motion for new trial, and remand for the limited purpose of

having the court determine whether the verdict is contrary to the weight of the

evidence. The court shall do so on the basis of the existing record. If the district

court denies Ball’s motion, our affirmance of his conviction shall stand. If the

district court does not, it must set the conviction aside and order a new trial. We

do not retain jurisdiction.

       CONVICTION CONDITIONALLY AFFIRMED, RULING ON MOTION

VACATED, AND REMANDED WITH DIRECTIONS.
