                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1150
                                 Filed June 25, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES SCOTT MUNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey A.

Neary, Judge.



      A defendant appeals from his conviction of sexual abuse in the third

degree and lascivious acts with a child. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Patrick Jennings, County Attorney, and James Loomis, Assistant

County Attorney, for appellee.



      Considered by Tabor, P.J., Bower, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                          2


GOODHUE, S.J.

       James Scott Munson appeals from his conviction of sexual abuse in the

third degree and lascivious acts with a child. He asserts the verdict is contrary to

the weight of the evidence and therefore the trial court erred in not granting him a

new trial. He specifically asserts the trial court did not apply the right standard for

evaluating whether a new trial should have been granted and if so, it did not

appropriately consider the weight of the evidence and credibility of the witnesses.

   I. Background Facts and Proceedings

       Munson was charged by trial information on October 27, 2011, with sexual

abuse in the third degree, which was amended on November 3, 2011, to include

lascivious acts with a child. The acts upon which the trial information was based

were alleged to have taken place between April 1, 2010, and May 20, 2011,

when the victim was twelve and thirteen years of age. She was fourteen, and

Munson was forty-nine at the time of trial. The victim testified as to encounters

with Munson, which included oral sex and the use of his fingers, penis, vibrators,

a cucumber, and a K-Y Jelly bottle to penetrate her vaginally. She also testified

that he played with her breasts.

       When the victim was younger her mother had frequently asked Munson to

babysit her. The victim continued to visit Munson in his home and occasionally in

her home as she grew older. The victim found some of her mother’s sex toys

and asked Munson about them.          Munson told the victim’s mother about her

discovery. The mother ordered the victim not to use the sex toys. Munson’s

sexual encounters with the victim began at about the time of the discussion

between Munson and the victim’s mother.
                                             3


           The State’s case was primarily based on the victim’s testimony, which was

extensive, explicit, and detailed. Munson admitted to the victim’s mother when

confronted, and to law enforcement when interviewed, that he had purchased the

K-Y Jelly and had given it to the victim.           Otherwise, he denied the sexual

encounters with the victim.

           A nurse conducted a physical examination of the victim and testified that

the examination revealed normal development of the victim’s sexual organs and

no indication of physical injury or penetration of her vagina. She further testified

that based on the victim’s rendition of what had taken place, it would not be

unusual that there would be no physical indication of penetration or presence of a

broken hymen.

           There was little direct evidence to corroborate the victim’s testimony, but it

was consistent with surrounding events as to time and contact with Munson.

There was no contention that the victim’s statements to her mother or the

interviewing officers were inconsistent with her testimony at trial. Munson did not

testify.

           Munson appealed, and the State made a motion to conditionally affirm and

remand on the basis that the trial court applied the sufficiency-of-the-evidence

test when considering Munson’s motion for new trial, rather than a weight-of-the-

evidence test as required by State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998).

The motion came before a supreme court panel, and it was granted. On remand

the trial court again denied the motion for a new trial, stating:

           [T]he court has considered the defendant’s motion for a new trial as
           previously submitted and clearly has considered it with the
           prevailing standard set forth in State v. Ellis, and the motion for new
                                           4


         trial is denied. The verdict in this case was not contrary to the
         weight of the evidence.

   II. Standard of Review

         A trial court is granted broad discretion when ruling on a motion for a new

trial and when denied, will be reversed only when its reasons are untenable or to

an extent clearly unreasonable. State v. Reeves, 670 N.W.2d 199, 202 (Iowa

2003).

   III. Error Preservation

         Error preservation is generally considered present when the issues to be

reviewed have been raised and decided by the district court. Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). Munson’s claim for a new trial was properly

raised by a motion and ruled on by the trial court.

   IV. Discussion

         The trial court may grant a new trial when the verdict is contrary to the law

or evidence.     Iowa R. Crim. P. 2.24(2)(6).     Contrary to the evidence means

contrary to the weight of the evidence. Ellis, 578 N.W.2d at 658. A weight-of-

the-evidence determination involves an analysis of the credibility as it relates to

each party.     State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008).           Munson

contends the trial court erred when it made no determination on the record of the

victim’s credibility, and therefore, it did not apply a weight-of-the-evidence test in

denying the motion for a new trial.       Munson contends the matter should be

remanded to the trial court to make a determination using the correct rule, or

alternatively, the matter should be remanded to the trial court for a new trial

based on his motion. When considering the motion for a new trial on remand,
                                          5


the trial court explicitly stated that it had applied the weight-of-the-evidence rule

and specifically cited Ellis.

       Munson asserts further that the trial court did not apply the required test

because it did not announce that it had considered the credibility of the victim’s

testimony. Munson cites no authority for his assumed proposition that the court

must provide a detailed assessment of each witness’s credibility when denying a

motion for a new trial. It is the function of the jury ordinarily to place credibility

where it belongs, and the trial court should not disturb the jury’s finding, even

when the evidence is not balanced, but only when the evidence preponderates

heavily against the verdict.    State v. Shanahan, 712 N.W.2d 121, 135 (Iowa

2006). The record provides little basis for challenging the victim’s testimony or a

need to balance the evidence. It is advisable for a trial court to state its reasons

for denying a motion for new trial, but even when no reasons are given, there has

been no remand when the reasons are evident from the record. Maxwell, 743

N.W.2d at 192-193. As in Maxwell, there is little or nothing in this record to

suggest that the weight of the evidence did not support the jury’s verdict of guilt

or that the testimony of the victim was not credible. See id. at 193. There is a

presumption that the court decided the facts necessary to support its ruling.

State v. Boelman, 330 N.W.2d 794, 795 (Iowa 1983).

       There are numerous factual situations that might give rise to the granting

of a new trial. Even if it is assumed that a trial court must give specific reasons

for denying such a motion beyond stating that the verdict is not contrary to the

weight of the evidence, it is only logical that the motion should directly alert the

court with clarity and specificity as to why the verdict is contrary to the weight of
                                          6


the evidence. Munson’s motion for a new trial primarily relied on the lack of the

State’s evidence and did not specifically raise the credibility of the victim. It is

difficult to find anything in the record in the form of direct or circumstantial

evidence that raised any question as to her credibility.

   V. Conclusion

       Based on the record in this matter, the trial court had no duty to

specifically address the victim’s credibility in denying Munson’s motion for a new

trial. The trial court used the proper test in denying Munson’s motion for a new

trial and did not abuse its discretion in doing so.

       AFFIRMED.
