                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1977
                                Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOBIE MONTEZ KENNEDY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



       Jacobie Kennedy appeals from his conviction of domestic abuse assault

causing bodily injury. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Alexandra Link

(until withdrawal), Assistant Attorneys General, for appellee.



       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

      Jacobie Kennedy appeals from his conviction of domestic abuse assault

causing bodily injury, contending the trial court erred in allowing hearsay

testimony by medical personnel that he caused injury to the victim because the

victim later recanted her statements given to medical personnel. He also asserts

there is insufficient evidence he caused bodily injury, and the verdict was

contrary to the weight of evidence. We determine the verdict should be affirmed.

      “We review sufficiency-of-the-evidence claims for correction of errors at

law.” State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We consider all of the

record evidence “in the light most favorable to the State . . . . including any

inferences arising from the evidence.” State v. Crone, 545 N.W.2d 267, 270

(Iowa 1996); see also Williams, 695 N.W.2d at 27-28.          We do not resolve

conflicts in the evidence, assess the credibility of witnesses, or weigh evidence.

Williams, 695 N.W.2d at 28. A guilty verdict is binding if supported by substantial

evidence. Iowa R. App. P. 6.904(3)(a).

      Viewing the evidence in the light most favorable to the State, we agree

with the district court there was substantial evidence establishing Kennedy

committed domestic abuse assault causing bodily injury.       On the morning of

September 8, 2013, Jessica Johnson, who was more than seven months

pregnant with Kennedy’s child, went to the hospital emergency room reporting

she had blacked out and was having contractions. While there, she tearfully

informed her attending nurses—only after Kennedy had left the hospital with their

other child—that Kennedy had choked her, causing her to black out and fall to

the bathroom floor. Johnson showed the nurse, Elizabeth Pekarek, marks on her
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neck and expressed concern for her other child’s safety. Pekarek reported the

situation to the nursing supervisor, Jennifer Kulper. Kulper spoke with Johnson,

who repeated Kennedy had been intoxicated, become angry, and choked her

until she blacked out. Kulper discussed her concerns for Johnson and the baby’s

safety if she were to be discharged back to the house. Johnson assured Kulper

she intended to stay with her mother.       Kulper observed the red marks on

Johnson’s neck.

       Johnson also told an off-duty police officer at the hospital that Kennedy

and she had argued about her smoking, there had been a shoving match, and he

had begun to choke her. She did not want to press charges or give a statement,

however. The officer noted red scratch marks on her neck. The officer spoke

with Kennedy, who admitted he had been drinking and said things to Johnson

that had upset her, but denied having had any physical contact with her. The off-

duty officer then reported the situation to other officers, who arrested Kennedy.

       Kennedy was charged with domestic abuse assault, strangulation causing

bodily injury.   Kennedy moved in limine to exclude any statements Johnson

made to Pekarek that were not made for the purpose of medical diagnosis or

treatment. After hearing arguments the morning of trial, the district court found

that the statements were made in the context of explaining what may have

caused the onset of pain that brought her to the hospital, which were admissible

under Iowa Rule of Evidence 5.803(4), and that any delay in reporting was due to

the presence of the defendant. The court specifically refused to rule on the then-

existing record whether the testimony could also be admissible as an excited

utterance.
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      At trial, Johnson testified that she and Kennedy had argued. She also

testified she told the nurse she had blacked out because Kennedy had strangled

her and she had marks on her neck.          However, she then testified she said

Kennedy had choked her to get him into trouble and that she had scratched her

neck when she tore her own necklace off because “he was saying some hurtful

things to me.” Johnson testified she did not remember talking to any police, but

acknowledged an officer asked to look at her neck. Johnson testified that when

she found out her two-year-old child was safe with Johnson’s mother, “I felt that I

didn’t need to lie to protect her anymore.” Johnson testified she and Kennedy

were “going to try to work things out when this is over.” On redirect, Johnson

acknowledged telling two nurses she had been choked and blacked out.

      Nurse Pekarek testified Johnson first reported she believed she was

having labor contractions and that she had blacked out and fallen down.

Pekarek stated she stepped away to do some paper work and when she

returned, the male who had been with Johnson was gone, and Johnson was

crying and upset.    At that time, Johnson reported, “He’s crazy.     He’s crazy.

That’s why we’re here. He choked me.” Pekarek testified she observed three

red marks on Johnson’s neck underneath her jawline. Nurse Kulper testified that

when she was talking to Johnson, Johnson was rubbing her neck and she did

have red marks on her neck.

      Kennedy argues the nurses could not state what caused the marks on

Johnson’s neck and there were no photographs taken of any injuries. He asserts

there is thus insufficient evidence to support the conviction.     The fact-finder

decides which evidence to accept or reject.        Williams, 695 N.W.2d at 28.
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Evidence is not insubstantial merely because the evidence could support

contrary inferences or because the verdict rests on weighing the credibility of

conflicting witness testimony. Id. (holding that there was substantial evidence to

support the jury verdict finding defendant guilty of domestic abuse assault where

“the fighting issue throughout the trial was whether [the defendant] choked [the

complainant] or she falsely accused him of choking her”).

       In the alternative, Kennedy contends the evidence was contrary to the

weight of the evidence, and the district court abused its discretion in denying him

a new trial. In considering the credibility of the evidence and inferences to be

drawn from the evidence, we conclude the weight of the evidence is not against

the verdict. Clearly, the jury concluded Johnson’s statements at the hospital

were more credible and consistent with the evidence than her subsequent

recantation and Johnson’s testimony. We find no abuse of the court’s broad

discretion here. See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (“The

district court has broad discretion in ruling on a motion for new trial.”).

       Kennedy lastly asserts the district court erred in ruling the medical-

diagnosis exception was applicable because the declarant’s motive in making the

statements must be consistent with the purposes of promoting treatment. See

State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992); cf. State v. Smith, ___ N.W.2d

___, ___, 2016 WL 851991, at *7 (Iowa 2016) (rejecting a categorical rule that

statements that identify perpetrators made to medical personnel by victims of

domestic abuse are automatically admissible under rule 5.803(4)). He argues

that because Johnson testified her motive in making the statements was to get

Kennedy in trouble, the court erred in admitting the statements. This argument
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was not made to the district court, however, and thus is not subject to our review.

See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa 1998).

      AFFIRMED.
