                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2069
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY LEE THOMAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.




      Gary Thomas appeals from his conviction of domestic abuse assault, third

or subsequent offense, following a jury trial. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.




      Considered by Doyle, P.J., Mullins, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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DOYLE, Presiding Judge.

      Following a jury trial, Gary Thomas was found guilty of domestic abuse

assault, third or subsequent offense, in violation of Iowa Code sections 708.1 and

.2A(4) (2013).   He challenges the sufficiency of the evidence to support his

conviction. We affirm.

      “Viewing the trial evidence in the light most favorable to the jury’s guilty

verdict[],” State v. Romer, 832 N.W.2d 169, 172-73 (Iowa 2013), the jury could

have found the following facts. On the evening of July 17, 2014, Merle and Kim

Wilson were watching television in their home, when they heard a man and a

woman start arguing outside—loud enough they could hear their voices inside

their home over the audio of the television.     Merle looked out his patio door

through its blinds and saw two people in the street he had never seen before,

and he was able to observe them from his door without any obstructions. He

could not make out all of their argument, but the “gist [he] got out of it [was the

man] wanted [the woman] to go somewhere she didn’t want to go,” and the man

had brought her shoes. At that point, the man “was grabbing her arm, trying to

pull her with him, to go with him. She was breaking away from him screaming at

him, trying to go the other way.” The man started to walk away, and the woman

threw the shoes at him, though they did not hit him. The man grabbed the shoes,

“picked them up, [and] came back at her.” The woman started to back away, like

she was afraid, and she fell down or tripped on the curb. The woman tried to get

back up, but the man was angry. Merle saw the man push her back down, throw

the shoes at her, and kick “her a couple of times in the leg.” Kim, watching from

a kitchen window, observed the man hitting the woman with the shoes. She also
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saw the man “kick at her,” but she “couldn’t see contact.” The Wilsons called 9-

1-1, fearing for the woman’s safety.

       Law enforcement officers arrived approximately thirty minutes after the 9-

1-1 call was made and spoke to Merle briefly. Merle told the officers the man

had pushed and hit the woman. Merle also believed he told an officer the man

kicked the woman a couple of times, but that officer did not recall Merle telling

him that, and the detail that Merle observed the man kicking the woman was not

in the officer’s report.

       The officers approached and then separated the people.              The man,

identified as Gary Thomas, was detained because he was considered the

primary aggressor through the witnesses’ reports. The woman identified herself

as Thomas’s wife, Pamela Bennett, but she was uncooperative and was also

detained. Both Thomas and Bennett appeared to have been drinking; Bennett’s

blood alcohol level was above the legal limit, and she was subsequently arrested

for public intoxication.   Both Thomas and Bennett told officers they were

wrestling and had had fights in the past, but both denied there was any physical

contact between them, as the Wilsons stated they observed. However, one of

the officers noticed some physical marks on Bennett, that she had “redness to

her arms,” and he documented that in his report.           Neither officer ever saw

Thomas hit, kick, strike, grab, or otherwise injure Bennett.

       Thomas was charged with domestic abuse assault, third or subsequent

offense, and the matter was tried to a jury in October 2014. The Wilsons and the

officers testified consistent with the above-stated facts. Bennett also testified, but
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she denied that Thomas put his hands on her or got loud with her that night. The

jury returned a verdict finding Thomas guilty as charged.

       Thomas now appeals, challenging the sufficiency of the evidence to

support his conviction. He claims the Wilsons did not see what they testified they

saw, pointing out some inconsistencies in their testimony, such as Merle

testifying the incident occurred earlier in the night than the time the officers

testified the call came in, and Merle testifying he told officers Thomas had kicked

Bennett but the officers not recalling Merle told them that information. Thomas

points out the Wilsons were approximately seventy-five to one-hundred yards

away from where they stated the incident occurred. Additionally, he relies upon

Bennett’s testimony that nothing happened, arguing she was “the only individual

qualified to testify to the existence of the elements” of the offense.

       We review sufficiency-of-the-evidence challenges for correction of errors

at law. See State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015).

              A jury verdict finding of guilt will not be disturbed if there is
       substantial evidence to support the finding. We consider all the
       evidence in the record and not just the evidence supporting the
       finding of guilt. The record is viewed in the light most favorable to
       the State. Substantial evidence must do more than raise suspicion
       or speculation, it must convince a rational trier of fact that the
       defendant is guilty beyond a reasonable doubt.

Id. (internal citations and quotation marks omitted). However, it is the province of

the jury to resolve conflicts in the evidence, to pass upon the credibility of

witnesses, to determine the plausibility of explanations, and to weigh the

evidence.    See State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005).                “‘Any

inconsistencies in the testimony of a defense witness are for the jury’s

consideration, and do not justify a court’s usurpation of the [fact-finding] function
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of the jury.’” Id. (citation omitted). Thus, “‘[i]nherent in our standard of review of

jury verdicts in criminal cases is the recognition that the jury [is] free to reject

certain evidence, and credit other evidence.’” State v. Sanford, 814 N.W.2d 611,

615 (Iowa 2012) (citation omitted).

       Here, viewing the record in the light most favorable to the State, we

conclude there was substantial evidence to support the conviction. It was for the

jury to resolve the conflicts between the Wilsons’ trial testimony and Bennett’s

testimony. It was the jury’s job to determine the witnesses’ credibility, and the

jury was free to accept the Wilsons’ testimony and reject Bennett’s testimony,

particularly in light of the red marks on Bennett’s arms constituting corroborative

evidence. The Wilsons testified they saw Thomas hit Bennett. Considering all of

the record evidence and all reasonable inferences that may be fairly drawn from

it, there was substantial evidence for a jury to find beyond a reasonable doubt

that Thomas hit Bennett, supporting that challenged element of the crime.

Accordingly, we affirm his conviction for domestic abuse assault, third or

subsequent offense.

       AFFIRMED.
