                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1038
                              Filed June 29, 2016


CHARLES BASIL WEST ANDERSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Charles Basil West Anderson appeals the district court’s denial of his

postconviction-relief application. AFFIRMED.



      Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Alexandra Link (until withdrawal)

and Kevin R. Cmelik, Assistant Attorneys General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

          Charles Basil West Anderson appeals the district court’s denial of his

postconviction-relief (PCR) application.        Anderson contends the district court

erred in denying him a new trial based upon newly-discovered evidence. We

affirm.

          I.     Background Facts and Proceedings

          In 1989, Anderson was convicted of one count of first-degree murder and

one count of attempted murder, offenses that occurred in 1986.              On direct

appeal, a panel of this court summarized the underlying facts as follows:

                  The defendant and both victims, Ricky Rollens and Kenneth
          Hunter, had been drinking and doing a variety of drugs during the
          evening preceding the shooting. As the night continued, the
          threesome ran out of money, and the defendant told Hunter and
          Rollens he had a television set which the three of them could pawn.
          They did so and bought cocaine.
                  The three took the cocaine and went driving. At some point
          an argument ensued. Apparently the defendant was convinced
          Hunter and Rollens had stolen a gold chain from his neck while he
          was passed out in the back seat of the car.
                  Eventually the car ran out of gas, and Hunter and Rollens
          left to get more. During this time, the defendant got into a car
          driven by a Duane Smith and he, along with other occupants of the
          car, drove around. The defendant remained with this group until
          Mr. Smith’s car ran out of gas. By this time, Hunter and Rollens
          had returned with gas for their car, and the defendant again joined
          them.
                  As the three drove, Rollens and the defendant began
          arguing again. About this time Smith’s car pulled up behind them
          and began honking. They pulled over and the Smith car parked
          ahead of them. A man from the Smith car came back and asked
          defendant if he still “had the stuff”; the defendant stated he did and
          gathered his belongings and went to the Smith car. Rollens then
          pulled his car forward and said something to the defendant. At
          some point it is alleged Rollens made a statement to the defendant
          with regard to “putting you (the defendant) in Glendale” which is a
          cemetery. The defendant proceeded to the victim’s car, they
          argued for a minute or so, and the defendant shot into the car.
          Rollens was killed and Hunter was injured.
                                         3

State v. Anderson, No. 89-1675, slip op. at 2-3 (Iowa Ct. App. Feb. 26, 1991).

This court affirmed the convictions on direct appeal. Id. at 8.

       In April 2013, Anderson filed the present PCR application, alleging, in

relevant part, newly-discovered evidence warranted a new trial. The district court

denied his application, and Anderson now appeals.

       II.    Standard and Scope of Review

       District court rulings on PCR applications based on newly-discovered

evidence are reviewed for abuse of discretion. See State v. Smith, 573 N.W.2d

14, 17 (Iowa 1997); Jordan v. State, No. 11-0166, 2012 WL 2819356, at *3 (Iowa

Ct. App. July 11, 2012) (noting PCR proceedings are usually reviewed for errors

at law, but, when based upon newly-discovered evidence, are reviewed for

abuse of discretion); Harris v. State, No. 01-0406, 2002 WL 31115246, at *2

(Iowa Ct. App. Sept. 25, 2002) (same). “We find an abuse of discretion only

when discretion is exercised on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Weaver, 554 N.W.2d 240, 244 (Iowa 1996) (citation

omitted), overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 253-

54 (Iowa 1998).

       III.   Analysis

       We employ the same analysis for Anderson’s PCR application as we

would a motion for new trial based on newly-discovered evidence.              See

Schawitsch v. State, No. 11-0743, 2012 WL 1439223, at *3 (Iowa Ct. App. Apr.

25, 2012) (“It is obvious the legislature intended the sufficiency of the showing

necessary to obtain a new trial based on newly discovered evidence to be the

same whether the ground is raised in a motion for new trial or in a postconviction
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application.” (quoting State v. Sims, 239 N.W.2d 550, 555 (Iowa 1976))). To

prevail on a newly-discovered-evidence claim, Anderson must show the proffered

evidence (1) was discovered after the verdict, (2) could not have been

discovered “earlier in the exercise of reasonable diligence,” (3) “is material to the

issues in the case and not merely cumulative or impeaching,” and (4) “probably

would have changed the result of the trial in which [he] was convicted.” Weaver,

554 N.W.2d at 246; see also State v. Romeo, 542 N.W.2d 543, 550 (Iowa 1996).

       In its ruling, the PCR court provided the following summary of the

evidence presented at the PCR hearing:

              [Anderson] relies solely upon the testimony of [James]
       Bolden as the source of the claimed new evidence. Bolden testified
       in both his deposition and at trial that he was an eyewitness to the
       incident which resulted in the charges and eventual conviction
       against Anderson, and that he observed both gunfire coming from
       the direction of the vehicle in which the victims were as well as
       Anderson being wounded as a result of that gunfire. As Bolden
       described it, Anderson was “spun around” after getting shot.
       Anderson also confirmed this version, testifying that he received a
       “grazing wound” or a “flesh wound” from being shot, and that he
       was cared for by friends or relatives afterwards without formal
       medical treatment.

       In denying Anderson’s application, the PCR court reasoned:

               Among the strategies employed for the benefit of Anderson
       at his criminal trial was the defense of justification or self-defense,
       which was obviously rejected by the jury in that trial. Anderson
       testified at trial, and explained that as he approached the victims’
       vehicle he saw both men brandishing weapons and that he fired out
       of fear for his life before they fired. Nowhere in his trial testimony
       did Anderson mention any shots coming from the victims’ vehicle.
       Even more astonishing, Anderson makes no mention of ever
       having been shot by his victims. While some of the intricate details
       of the incident may have been lost to Anderson’s impairment at the
       time, the court sees no conceivable way for Anderson to have
       omitted the fact that he was shot prior to firing the shots from his
       own weapon. He testified during the postconviction proceeding that
                                         5


       he provided truthful testimony during his criminal trial and did not
       omit any material fact.
               This court, as the trier of fact in this proceeding, has the
       obligation to weigh the credibility of the witnesses offered and
       reconcile any inconsistencies in the evidence. In this role, the court
       has no hesitancy to conclude that the testimony of both Anderson
       and Bolden in this proceeding wholly lacks credibility. If Anderson
       is to be now believed, he sustained a wound (albeit a minor one) for
       which others provided care and treatment. And yet this fact, one
       completely within Anderson’s control and recollection, was never
       mentioned in the criminal trial. There can only be one rational
       explanation for this omission—the claimed shooting never
       occurred. Accordingly, Bolden’s testimony is equally lacking in
       credibility. The court need not decide if the essence of Bolden’s
       evidentiary contribution could have been uncovered prior to the
       criminal trial or that it would have changed the outcome thereof; it is
       enough to conclude that his testimony has no basis in fact and has
       been created out of whole cloth. This postconviction claim
       contemplates the existence of newly discovered evidence, not
       newly created evidence. There is no basis for this court to afford
       Anderson any relief from his criminal conviction and sentence.

       As the reviewing court, we give weight to the PCR court’s determinations

regarding a witness’s credibility. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa

2001). The record and PCR ruling before us establishes the PCR court “gave

careful and thoughtful attention to all of the evidence” Anderson presented at the

PCR hearing. Harris, 2002 WL 31115246, at *3. As in Harris, the PCR court

supported its conclusions with specific findings on the credibility of the

witnesses—here, Anderson and Bolden. See id. That conclusion is supported

by the record before this court on appeal. We conclude the district court did not

abuse its discretion in denying Anderson’s claim as the evidence presented was

inconsistent with Anderson’s testimony at trial and relied upon the testimony of

wholly unreliable witnesses. See State v. Rosales-Martinez, No. 02-0399, 2003

WL 21229134, at *4 (Iowa Ct. App. May 29, 2003) (affirming the district court’s

denial of a motion for new trial noting, in part, “the motion for new trial was based
                                           6


solely on the new statements by [the witness], and consequently depended

greatly on her credibility,” thus, “the court’s determination in this regard is vital”);

State v. Moore, No. 98-1038, 1999 WL 1136569, at *3 (Iowa Ct. App. Dec. 13,

1999) (affirming the district court’s denial of a motion for new trial where, in part,

the district court questioned the witnesses’ credibility, noted inconsistencies in

one witness’s statements when compared to the trial evidence, and noted the

other witness’s testimony was inconsistent with the defendant’s theory of self-

defense).

       AFFIRMED.
