                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1719
                            Filed November 25, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES DURRELL CALDWELL,
     Defendant-Appellant.
________________________________________________________________

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

Dalrymple, Judge.



      A defendant convicted of third-degree burglary challenges the district

court’s ruling on his motion for new trial. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Martha E. Trout,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.

          A jury decided James Caldwell committed burglary in the third degree by

entering his neighbor’s home while she was gone camping—without permission

and with the intent to commit theft. On appeal, Caldwell contends the jury’s

verdict was contrary to the weight of the credible evidence. Because the district

court did not abuse its discretion in denying Caldwell’s request for a new trial, we

affirm.

I.        Background Facts and Proceedings

          “What are you doing in my house?” Glenda Husome asked Caldwell, her

next-door neighbor, when she unexpectedly encountered him standing in her

living room when she returned home from a mid-June camping trip. Caldwell,

who was wearing brown gloves, told Husome he saw her front door open and

thought he would ask if she wanted him to mow her lawn. Husome had hired

Caldwell to mow her lawn on one occasion about six weeks earlier. Caldwell

said when he knocked on Husome’s door he saw “two guys that ran out the back

door” and into a “big yellow van,” so he entered the house to see if Husome was

okay.

          Husome was skeptical that Caldwell, while standing at the front door,

could have seen anyone running out her back door or entering a van behind her

house. Husome was nervous to be alone with Caldwell and started backing out

of her house. Caldwell told her he saw “two white boys here on Saturday night

that stole your grill too.” Husome explained her son and his friend had picked up

her grill.
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       After Caldwell returned next door to mow his own lawn, Husome called

her son at work and then the police. As she was talking on the phone, she went

back inside her house and noticed her large-screen television was unplugged

and pulled away from the wall in the living room. Her bedroom was in disarray.

Drawers were dumped onto the bed; jewelry and clothes were strewn all over.

She also found a white trash bag by her back door containing more of her jewelry

and a coin jar.

       When the police arrived a few minutes later, Husome told Officer Timothy

Frisch that her neighbor had seen burglary suspects leaving her house.1 Officer

Frisch went next door to gather more information, but Caldwell was not home.

The officer noticed a little swath of grass cut in his yard. Police learned Caldwell

was driving a silver sports utility vehicle (SUV) and eventually spotted him

parking about a block away behind a school bus. Officer Daniel Frederickson

believed Caldwell had seen squad cars at the burglary scene, and purposefully

tried to avoid contact. When Officer Frederickson approached him, Caldwell said

he was returning from a trip to get gasoline for his lawn mower.

       Because Caldwell had an outstanding warrant for his arrest, Officer

Frederickson placed him in handcuffs.           Caldwell denied burglarizing his

neighbor’s house. When police returned to photograph the parked SUV about

one week later, they did not find a gas can inside.

       On June 23, 2014, the State charged Caldwell with burglary in the second

degree, a class “C” felony, in violation of Iowa Code sections 713.1 and 713.5


1
 Police investigated a yellow rental van parked in the neighborhood, but concluded its
occupant was not involved in the burglary.
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(2013). The State also alleged Caldwell was an habitual offender under section

902.8. A jury trial started on September 2, 2014, and on September 5, 2014, the

jury found Caldwell guilty of the lesser included offense of burglary in the third

degree, in violation of section 713.6A, a class “D” felony.2

       Caldwell’s attorney filed a motion for new trial on October 1, 2014,

alleging, “The evidence presented at the jury trial was insufficient to sustain a

conviction.”   The district court recognized at the sentencing hearing that the

defense motion articulated an incorrect standard for seeking a new trial. See

Iowa R. Crim. P. 2.24(2)(b)(6) (permitting court to grant a new trial when the

verdict is “contrary to law or evidence”).     The court considered the new-trial

motion under the proper standard as described in State v. Ellis, 578 N.W.2d 655

(Iowa 1998):

       Utilizing the Ellis standard, the Court is applying whether or not the
       verdict was contrary to the weight of the evidence, and in
       considering the factors that obviously as the trial court I am fully
       aware of, and the Court finds that the jury’s verdict was not contrary
       to the weight of the evidence and, in fact, that there was ample
       evidence to find the defendant guilty of the offense to which they
       returned a verdict.

       The court highlighted the credible evidence that it believed weighed in

favor of the jury’s verdict:

       I think, frankly, the defendant’s subsequent behavior after the
       burglary is also particularly telling of his involvement in the burglary
       and contrary to the evidence that—or the suggestions that mitigate
       his involvement in a burglary and suggest that he was merely there
       as a good samaritan neighbor to cut grass. And the record
       certainly will reflect his parking the car some distance away from
       his own home, the home of the victim in this case as well; that he


2
  Second-degree burglary has the additional element of one or more persons being
present in the occupied structure during the incident.
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       was hiding and lurking behind a school bus; and his behavior when
       approached by law enforcement are all factors that the jury
       certainly could consider, the Court considers as well, of his guilty
       and criminal behavior.

       The court sentenced Caldwell to an indeterminate sentence of fifteen

years3 with a mandatory minimum term of three years. He now appeals.

II.    Standard of Review

       We review for an abuse of discretion when a district court decides a new

trial motion premised on rule 2.24(2)(b)(6). See State v. Thompson, 836 N.W.2d

470, 476 (Iowa 2013). To establish an abuse of discretion, the complaining party

must show “the district court exercised its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” State v. Reeves, 670

N.W.2d 199, 202 (Iowa 2003). Although district courts enjoy wide discretion in

deciding new-trial motions, our supreme court has warned “such discretion must

be exercised ‘carefully and sparingly’ to insure the court does not ‘lessen the role

of the jury as the principal trier of the facts.’” Ellis, 578 N.W.2d at 659. Only

when the evidence “preponderates heavily against the verdict,” should the district

court invoke its power to grant a new trial. State v. Shanahan, 712 N.W.2d 121,

135 (Iowa 2006). In other words, the grant of a new trial should be reserved for

the “exceptional case” where “a miscarriage of justice may have resulted.”

Reeves, 670 N.W.2d at 202. On appeal, our review “is limited to a review of the

exercise of discretion by the trial court, not the underlying question of whether the

verdict is against the weight of the evidence.” Id. at 203.



3
  Caldwell received a concurrent sentence for driving while barred; he does not
challenge that judgment and sentence on appeal.
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III.   Weight-of-the-Evidence Analysis

       In finding Caldwell guilty of third-degree burglary, the jury found the State

proved the following elements:

              1. On or about the 16th day of June, 2014, the defendant
       broke into [a home in] Waterloo, Iowa.
              2. The residence was an occupied structure . . . .
              3. The defendant did not have permission or authority to
       break into the residence.
              4. The defendant did so with the specific intent to commit a
       theft.

       Caldwell contends the district court abused its discretion in denying his

motion for new trial on grounds that the verdict was contrary to the weight of the

evidence. He asserts: “The greater weight of the evidence presented supported

a finding that Caldwell did not burglarize Husome’s home. He merely entered

Husome’s home out of neighborly concern for her welfare.”

       “Contrary to the evidence” in rule 2.24(2)(b)(6) means contrary to the

weight of the evidence. Ellis, 578 N.W.2d at 659. Under this standard, the

district court weighs the evidence and considers credibility as it determines

whether “a greater amount of credible evidence supports one side of an issue . . .

than the other.” Reeves, 670 N.W.2d at 202.

       On appeal, Caldwell tallies facts supporting his version of events:

       It is understandable that Husome was alarmed to find Caldwell in
       her home; however, he was merely checking on her after seeing
       two men flee out her back door. . . . Caldwell had previously
       mowed Husome’s lawn and had left a note in her mailbox to inquire
       about mowing the lawn again. . . . Caldwell was not aggressive or
       threatening towards Husome when she found him in her home. He
       was wearing gloves, which might have seemed suspicious, but he
       was about to mow his own lawn. . . . He was dressed for outdoor
                                           7



         work. . . . The officers failed to do any fingerprinting at the scene,
         having decided that Caldwell was the suspect. When police found
         Caldwell a short distance away, he said he left to obtain more gas
         for his mower. . . . Despite a claim that Caldwell hid his SUV
         behind a bus, no bus appears in the photo taken of his vehicle that
         day. While officers did not find a gas can in his vehicle, they did not
         think to check until an entire week had passed and could not say if
         anyone else had access to his vehicle. . . . Caldwell also had
         reasons to avoid law enforcement—a warrant for his arrest and his
         driving privileges were barred. . . . Caldwell steadfastly maintained
         his innocence despite assurances that he was only facing a
         misdemeanor, which was untrue.

         The State counters with a different slant on the evidence:

         [T]he jury found that Husome caught the defendant burglarizing her
         home. He was in the midst of gathering his ill-gotten gains when
         she interrupted him. He fabricated a story that he was checking on
         her and her house after two men left to explain his presence in the
         house. He also claimed to have been wearing gloves because he
         was going to mow his lawn. Although he did start his mower, he
         left the scene about the time police arrived to question him about
         the incident. He claimed he left to get gas for mower but there
         were no gas cans in his vehicle.

         The existence of two plausible versions of the events for the jury to

choose from does not mean the evidence preponderates heavily against the

verdict.    A jury is uniquely qualified to “sort out the evidence” and “place

credibility where it belongs.” See State v. Thornton, 498 N.W.2d 670, 673 (Iowa

1993).

         The case against Caldwell was not a situation where the testimony of a

witness or several witnesses which would otherwise support the conviction was

“so lacking in credibility that the testimony cannot support a guilty verdict.” See

State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct. App. 2001). Neither was it a

case where the evidence supporting the guilty verdict was “so scanty, or the

evidence opposed to a guilty verdict so compelling, that the verdict can be seen
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as contrary to the evidence.” See id. Husome was a credible witness. Someone

had entered her home with the intent to steal her possessions. She discovered

Caldwell in her home without permission, wearing gloves. The question was

whether Caldwell was the burglar or a witness to the burglary. The jury could

have reasonably viewed his conduct in avoiding the police after Husome returned

home as more consistent with having committed the burglary than having

happened onto the burglary scene.           Caldwell’s prosecution was not the

extraordinary case where the evidence preponderated heavily against the jury’s

verdict. The district court did not abuse its discretion in denying the motion for

new trial.

       AFFIRMED.
