                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1837
                             Filed December 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRITTANY RAE BEEK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland,

Judge.



      Brittany Beek appeals the conviction and sentence entered upon a jury

verdict finding her guilty of third-degree sexual abuse. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant

Appellate Defender, for appellant.

      Brittany R. Beek, Mitchellville, pro se.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       Brittany Beek appeals the conviction and sentence entered upon a jury

verdict finding her guilty of third-degree sexual abuse, a class “C” felony. See

Iowa Code § 709.4(1)(b)(3)(d), (2) (2016). Beek contends (1) the jury’s guilty

verdict “is not supported by the weight of evidence” and (2) the district court erred

in failing to exercise its discretion in sentencing.

I.     Background Facts and Proceedings

       On May 10, 2016, two juvenile girls, S.R. and K.S.-H., respectively sixteen

and fifteen years old at the time, ran away from a youth shelter. The following

day, while they were still on the run, S.R. contacted Beek, a twenty-seven year

old, for a place to stay. Beek picked the girls up and eventually transported them

to her home. That evening, the three of them watched a movie, Fifty Shades of

Grey, in Beek’s bedroom and “hung out until about one or two in the morning.” In

the night, Beek pursued sexual activities with the girls, inserting a dildo into

S.R.’s vagina and using a pink vibrator and glass dildo on K.S.-H. Both girls

unequivocally testified at trial that Beek inserted the various sex toys in their

vaginas.

       The next day, the girl’s contacted S.R.’s ex-boyfriend, Cameron, for a ride

and covertly left Beek’s residence. After picking up the girls, Cameron advised

them he was going to turn them in to law enforcement. After a struggle, the girls

got away from Cameron and “ran through a field.”               When police officers

subsequently found the girls in the field, S.R. was transferred to a detention

facility and K.S.-H. back to the youth shelter.        S.R. advised the staff at her

detention facility of the prior evening’s events. She subsequently relayed the
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same information to a detective with the local sheriff’s office. Both girls were

transported to the hospital for medical examination and forensic interviews. Both

girls advised medical personnel and interviewers that Beek sexually assaulted

them.

        Law enforcement obtained a warrant to search Beek’s residence. Upon a

search of Beek’s bedroom, officers found various sex toys and some of the girls’

clothing.   In a subsequent interview with a police officer, Beek verified the girls

spent the night at her house the prior evening but denied any sexual contact

occurred. The division of criminal investigation performed DNA testing on two of

the sex toys. S.R.’s DNA was found on one of the toys. Two DNA profiles were

found on the other toy, one belonging to Beek. There was an insufficient amount

of DNA present to determine the identity of the second contributor.

        Beek was charged with two counts of third-degree sexual abuse, one

count as to K.S.-H. and one count as to S.R. A jury found Beek guilty of the

count pertaining to K.S.-H.1 The district court denied Beek’s subsequent motion

for a new trial and in arrest of judgment. The court sentenced Beek to a term of

incarceration not to exceed ten years, ordered her to register as a sex offender,

placed her under the supervision of the Iowa Department of Corrections for life,

and imposed a suspended fine, civil penalty, victim restitution, and various

surcharges.    Beek appeals.       Additional facts may be set forth below as are

relevant to the issues raised on appeal.

1
  The statutory formulation under which Beek was convicted provides: “A person
commits sexual abuse in the third degree when the person performs a sex act” on
another, “[t]he other person is fourteen or fifteen years of age,” “[t]he person is four or
more years older than the other person,” and they were “not at the time cohabiting as
husband and wife.” Iowa Code § 709.4(1)(b)(3)(d).
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II.    Weight of the Evidence

       In her motion for a new trial and in arrest of judgment, Beek argued,

among other things, that the jury’s verdict was not supported by the weight of the

evidence. She repeats this argument on appeal. We review the district court’s

denial of a motion for a new trial and a motion in arrest of judgment for an abuse

of discretion.    State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008) (arrest of

judgment); State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (new trial). “An

abuse of discretion will only be found where the trial court’s discretion was

exercised on clearly untenable or unreasonable grounds.” Smith, 753 N.W.2d at

564. Where, as here, a claim is made that the verdict is contrary to the weight of

the evidence, “the verdict may be set aside and a new trial granted” if “the court

reaches the conclusion that the verdict is contrary to the weight of the evidence

and that a miscarriage of justice may have resulted.”        State v. Serrato, 787

N.W.2d 462, 471–72 (Iowa 2010) (quoting State v. Ellis, 578 N.W.2d 655, 658–

59 (Iowa 1998)). “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.’” State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (quoting Ellis,

578 N.W.2d at 658).

       In support of her argument, Beek first points to K.S.-H.’s testimony at trial,

during which she frequently answered questions with the response, “I don’t

remember.”       We interpret this as a challenge to the witness’s credibility.

Although it is true K.S.-H. was unable to recall some of the miniscule details

surrounding the evening in question, she was able to unequivocally testify that

Beek sexually assaulted her. This material testimony aligned with that of the
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other alleged victim, as well as most of the other evidence presented by the

State. In any event, “[t]he jury is free to believe or disbelieve any testimony as it

chooses and to give weight to the evidence as in its judgment such evidence

should receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). “In fact,

the very function of the jury is to sort out the evidence and ‘place credibility where

it belongs.’” Id. (quoting State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984)). Beek

next points to the lack of physical evidence linking her to the crime. The law is

clear, however, that a “victim’s accusation need not be corroborated by physical

evidence.” State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); accord State v.

Knox, 536 N.W.2d 735, 742 (Iowa 1995) (noting direct physical evidence is not a

necessary prerequisite to conviction). The lack of physical evidence does not tip

the scales against the jury’s finding of guilt.

       We cannot say the evidence preponderates heavily against the jury’s

finding of guilt.   We therefore conclude the district court did not abuse its

discretion in denying Beek’s motion for a new trial and in arrest of judgment on

weight-of-the-evidence grounds.

III.   Sentencing

       Beek contends the district court improperly failed to exercise its discretion

in sentencing. She specifically argues “[t]he court incorrectly believed that it was

restricted to just two choices under the law, either the maximum of ten years in

prison or no incarceration along with probation” and its failure to consider other

sentencing options amounted to a failure to exercise discretion.            “When a

sentencing court has discretion, it must exercise that discretion,” and “[f]ailure to
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exercise that discretion calls for a vacation of the sentence and a remand for

resentencing.” State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999).

       At the sentencing hearing, the district court solicited sentencing

recommendations      from    the   parties.       The   State,   concurring      with   the

recommendation       contained     in      the    presentence    investigation     report,

recommended a term of imprisonment not to exceed ten years. Beek argued for

a suspended sentence and probation. The court explained:

              So I have considered whether a suspended sentence and
       probation are appropriate. And let me just tell anybody that doesn’t
       know this. I really only have two choices here. Iowa law mandates
       that I sentence Ms. Beek to a ten-year—well, indeterminate up to
       ten years and the parole board would decide if she goes to prison,
       how long that would actually be. I don’t get to choose between now
       and ten. It’s just ten. Or up to ten. And then I decide is it
       suspended and she’s on probation, or is it not suspended and she
       goes to prison. So, Ms. Beek, those are the two choices that I’m
       choosing between.
              I did consider a suspended sentence and whether you could
       be rehabilitated in the community, and I did consider suspended
       sentence and whether we can protect the community members
       while you’re in the community. But your history suggests to me we
       cannot. You have a history of some assaultive behavior that prior
       probations and prison terms have not been able to correct or deter
       you from further criminal activity, and you have been on probation
       that wasn’t successful and just recently convinces me that we
       cannot accommodate what is necessary for your rehabilitation and
       protection in the community.
              So I am imposing an indeterminate term in the Iowa state
       prison system of up to ten years. The term of imprisonment is not
       suspended.

       Beek contends this language reveals “the court incorrectly believed that it

was limited to two options at sentencing, either prison or a suspended sentence

with probation,” and its failure to consider other options, such as probation

coupled with a deferred judgment or suspended sentence, amounted to a failure

to exercise its discretionary authority.
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      We, however, conclude the court’s explanation of its ultimate sentencing

decision makes clear that under the facts of this case it considered two options

worthy of consideration. The court was deciding whether to adopt one of the

parties’ recommendations or impose a sentence that fell somewhere in between.

The legally available alternative sentencing options cited by Beek would have

involved probation. The court explained that neither Beek’s rehabilitation nor the

protection of the community could be accomplished with a suspended sentence

and probation. The record shows the court considered the factually available

options and appropriate factors in concluding a term of imprisonment would be

necessary. We conclude the district court appropriately exercised its discretion

in sentencing and therefore affirm Beek’s sentence.

IV.   Conclusion

      Finding no abuse of discretion in relation to the district court’s denial of

Beek’s motion for a new trial and in arrest of judgment or in sentencing, we affirm

Beek’s conviction and sentence.

      AFFIRMED.
