Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.
The opinion of the court was delivered by: Doyle, J.
Martin Hiatt appeals his convictions of three counts of sexual abuse in the second degree and four counts of indecent contact with a child. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
I. Background Facts and Proceedings.
Defendant Martin Hiatt was charged by an amended trial information with five counts of sexual abuse in the second degree, in violation of Iowa Code sections 709.1(3) and .3(2) (2011), and four counts of indecent contact with the child, in violation of section 709.12(2). A jury found Hiatt guilty of three counts of second-degree sex abuse and four counts of indecent contact with the child. Thereafter, Hiatt filed a motion for new trial on numerous grounds, which the district court denied. Hiatt was sentenced to concurrent terms of imprisonment.
On appeal, Hiatt contends the district court erred in denying his motion for new trial because it (1) wrongly concluded the evidence weighed in favor of the jury's verdicts, (2) improperly sequestered family witnesses, and (3) improperly responded to a jury question. Additionally, Hiatt asserts his trial counsel rendered ineffective assistance (4) in failing to object to statements made by the prosecutor in her rebuttal closing argument and (5) in failing to object to the court's failure to administer an oath to a witness. We address his arguments in turn.
II. Motion for New Trial.
Generally, we review the denial of a motion for new trial for correction of errors at law. Iowa R. App. P. 6.907; Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). However, if the motion is based on a discretionary ground, we review for abuse of discretion. State v. Serrato, 787 N.W.2d 462, 472 (Iowa 2010). To the extent Hiatt asserts constitutional claims, our review is de novo. See State v. Schaer, 757 N.W.2d 630, 633 (Iowa 2008).
A. Weight of the Evidence.*fn1
When the jury's verdict is contrary to the evidence, Iowa Rule of Criminal Procedure 2.24(2)(b)(6) authorizes the district court to grant a new trial. See State v. Wells, 738 N.W.2d 214, 219 (Iowa 2007). "[A] verdict is contrary to the evidence under this rule if it is contrary to the weight of the evidence." Id. (emphasis added) (internal quotation marks omitted). Unlike the sufficiency-ofthe-evidence standard applied on a review of a motion for judgment of acquittal, the district court, in determining whether a new trial should be granted, has much broader power under the weight-of-the-evidence standard, including the ability to weigh the evidence and consider the credibility of witnesses. Serrato, 787 N.W.2d at 472 (citing State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998)); see also State v. Taylor, 689 N.W.2d 116, 133-34 (Iowa 2004). If the court determines the verdict is contrary to the weight of the evidence "and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted." Ellis, 578 N.W.2d at 658-59. Our review of a weight-of-the-evidence claim on appeal "is limited to a review of the exercise of discretion by the trial court," and we may not review "the underlying question of whether the verdict is against the weight of the evidence." State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
The district court found the jury's verdict was not contradictory to the evidence. The court explained:
The weight of this case clearly fell upon the child witness. There was no physical evidence. And the weight of that evidence could be something that would be and should be determined by the jury in the entire context of the case. This court finds that the weight of the evidence supports each and every count for which a conviction was entered, and very clearly this jury took their obligation seriously because they actually acquitted Mr. Hiatt on two of the counts.
Upon our review, we find the district court applied the correct standard and did not abuse its discretion in determining that the greater weight of the evidence supported the jury's determination of guilt in this case. "Only in the extraordinary case, where the evidence preponderates heavily against the verdict, should a district court lessen the jury's role as the primary trier of fact and invoke its power to grant a new trial." Taylor, 689 N.W.2d at 134; see also State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). "The very function of the jury is to sort out the evidence presented and place credibility where it belongs," and it "is at liberty to believe or disbelieve the testimony of witnesses as it chooses and give such weight to the evidence as in its judgment the evidence was entitled to receive." State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984).
Although no evidence directly corroborates the victim's accounts, a sex abuse victim's accusations do not require corroboration to uphold a verdict. See Iowa R. Crim. P. 2.21(3) ("Corroboration of the testimony of victims shall not be required."); State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995). Here, the victim testified that Hiatt started having inappropriate contact with her when she was around the age of six, and it lasted until she was around ten. She testified that Hiatt touched her with his finger over and under her clothes, and this would happen when the two of them were watching television together. She testified that this happened more than one time but was unable to recall when the first time was. She testified that Hiatt touched her on her thigh, private area, buttock, back, and breasts. The victim testified that Hiatt sometimes went underneath her pants and would start moving his hands around on her thigh and vagina. She testified that Hiatt had licked her vagina on one occasion. There was certainly testimony to support the charges against Hiatt. Although there was also testimony from Hiatt denying the victim's accusations, as well as testimony on Hiatt's behalf that he had not abused others, the jury was free to believe the victim and disbelieve Hiatt. We also agree with the ...