                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0156
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DIAMOND S. WILSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Lars G.

Anderson, Judge.



      Defendant appeals the denial of his motion for new trial. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

         Following jury trial, Diamond Wilson was convicted of intimidation with a

dangerous weapon, carrying weapons, and unlawful possession of a firearm, in

violation of Iowa Code sections 708.6, 724.4, and 724.26 (2015). On appeal, he

contends the district court abused its discretion in denying his motion for new trial

on the ground the verdict was contrary to the evidence.

         Our review in this case is limited. “A court may grant a new trial where a

verdict rendered by a jury is contrary to law or evidence.” State v. Nitcher, 720

N.W.2d 547, 559 (Iowa 2006). Contrary to the evidence means contrary to the

weight of the evidence. See State v. Reeves, 670 N.W.2d 199, 201 (Iowa 2003).

“The district court has broad discretion in ruling on a motion for new trial.” Id. at

202. Our review is limited to the question of whether the district court abused its

discretion in denying the motion and not a decision on the merits of whether the

verdict is contrary to the weight of the evidence. See id. at 203. To establish an

abuse of discretion, the defendant must show the district court exercised its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable. See id. at 202. Trial courts should exercise the discretion to grant

a new trial “carefully and sparingly.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa

1998).

         The victim testified Wilson confronted her after Wilson came to believe the

victim had been cheating during a card game they were playing at Wilson’s

girlfriend’s apartment. Wilson pulled a handgun and pointed it at the victim and

told her he was going to kill her. The victim testified Wilson’s girlfriend intervened

and pushed Wilson and then the handgun fired. Wilson fled the scene prior to
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law enforcement arriving. The victim testified Wilson called her several days

later and offered her several thousand dollars to tell the police Wilson was not

the shooter. The victim’s testimony was corroborated by forensic evidence. The

investigating officers found a bullet hole in the floor where Wilson had been

standing during the confrontation, a bullet jacket, and a fresh dent in the

ductwork beneath the floor consistent with the trajectory of the bullet.

       Wilson argues the verdict was contrary to the evidence because the victim

was not credible and because no handgun was ever recovered. The credibility

determination was for the jury, and recovery of the handgun was not necessary

to prove the elements of the offenses. Under the circumstances, we cannot

conclude the district court’s denial of Wilson’s motion was unreasonable. See

United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988) (stating appellate

court neither sits to judge credibility of witnesses nor to reweigh the evidence;

rather 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).

       AFFIRMED.
