from the Iowa District Court for Warren County, Patrick W.
Finck appeals the district court's denial of his motion
for a new trial.
Patrick W. O'Bryan, Des Moines, for appellant.
J. Miller, Attorney General, and Israel Kodiaga, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
evidence presented at trial includes the following. Jasiah
Finck and Shawna Davidson were married in 2006. Their marriage
was dissolved in 2009. The marriage produced one child, C.D.,
born in 2008. The dissolution-of-marriage decree awarded
Shawna sole legal custody and physical care of the child. As
to visitation, the decree ordered:
Jasiah Finck . . . shall have rights of visitation as the
parties may agree. If the parties are unable to agree, Jasiah
will have visitation every Monday (8:00 a.m. until noon) and
every Wednesday (8:00 a.m. until noon). All visitations shall
take place at Shawna's residence or at another mutually
agreeable location until Jasiah Finck has his own suitable
residence. If Jasiah is to transport [C.D.] he shall utilize
a licensed driver or shall show proof to Shawna Davidson that
he has a valid driver's license.
The decree has never been modified.
about 2015, Shawna and C.D. moved to South Carolina and
Shawna remarried. In March 2017, as a result of C.D.'s
school and behavioral issues and some problems between C.D.
and his stepfather, Shawna contacted Finck and proposed C.D.
return to Iowa and live with Finck's parents, Kirk and
Gwen, for approximately six months. Finck forwarded the
proposal to his parents, and they agreed. The arrangement was
for Kirk and Gwen to care for the child in their home, and
the child could potentially be transitioned into Finck's
care after six months if he showed the ability to be a
responsible parent. Finck moved into his parents' home
the same day as C.D. Gwen testified Finck moved in with them
"because he didn't have anyplace else to go at the
time." The arrangement went well for the first few
months but eventually soured as a result of Finck's
lifestyle choices. In early July, Gwen and Kirk asked Finck
to find his own place to live and advised Shawna it would be
in C.D.'s best interests to move back to South Carolina.
Finck was upset about his parents' decision to send C.D.
back to South Carolina. He moved out of his parents' home
on or about July 3.
11, a Tuesday, when Shawna was on her way to Iowa to retrieve
C.D., Finck, unbeknownst to Gwen and Kirk, picked the child
up from his day program shortly after the lunch hour and did
not return him home. Finck text messaged Gwen at 3:30 p.m.
and advised he retrieved the child from school and was taking
him to a friend's overnight. Finck did not advise who the
friend was or where the friend lived. Gwen stated her
disagreement with the same and requested to speak with C.D.;
Finck denied her request. Gwen learned from a third party
that Finck may have taken the child to the Kansas City area.
Gwen conveyed the information to Shawna for the purpose of
letting her decide what should be done about the situation.
to her discussion with Shawna,  Gwen ultimately made contact with
law enforcement and advised C.D. was missing, Finck had taken
him from school, and Finck reported they would be back by
noon on July 12. However, by approximately 1:15 p.m. on July
12, the child had yet to be returned. By this point in time,
neither Finck's parents nor Shawna had been able to reach
Finck to verify his and the child's whereabouts. At
approximately 2:11 p.m., Shawna received the following text
message from Finck: "I'm having car troubles in a
little town on the Iowa border. Getting my car fixed.
I'll be back. [C.D.] will be back in school by
4:30." Gwen was able to make contact with Finck at 2:30
p.m., at which time he advised he would have the child back
in two hours. At roughly 3:00 p.m., law enforcement decided
to triangulate Finck's cell phone to attempt to verify
his location. Records received from the cell phone company
showed Finck was in the Kansas City area from 2:00 a.m. until
3:00 p.m., at which time Finck's phone powered down.
Local law enforcement put a report out to Iowa and Kansas
City law enforcement to be on the lookout for Finck as a
noncustodial child abductor. Finck was apprehended at
approximately 5:15 p.m. in the Kansas City area. The
arresting officer observed Finck's vehicle to be
testified at trial on his own behalf. He testified no
restrictions were placed upon his time with C.D. while the
child was living with Kirk and Gwen. He testified he has
"full rights" to C.D. and he did not believe he had
to ask for anyone's permission to take him somewhere. He
also testified that on the day in question he picked C.D. up
from school shortly after lunch and "left for Kansas
City." He did not immediately advise anyone of his plan
because he "didn't feel that [he] needed to."
Between 3:00 and 4:00 p.m., Finck advised his mother he had
picked C.D. up from the day program, but he did not tell her
he was taking the child to Kansas City; Finck could not
recall during his testimony when he advised Shawna of the
same. Finck testified his intention was to return the
following day or the following night. He also testified he
was in contact with Shawna "probably a half a
dozen" times on July 12. He then testified his phone
died because he was experiencing electrical problems with his
car and could not charge his cell phone. According to Finck,
when he was apprehended by law enforcement, he was preparing
to leave the Kansas City area around "6:30 or 7"
p.m. and return to Iowa with the child. Finck conceded on
cross-examination that he knew Shawna was "upset"
about the situation and that he never contacted Shawna or
Gwen to advise he would not be returning the child on time.
However, he maintained the position that he and Shawna
reached an agreement that he could take C.D. to Kansas City
and his actions were not in violation of that agreement.
relation to the foregoing events, Finck was charged by trial
information with third-degree kidnapping and violating a
custodial order. A jury found him guilty of the latter
charge. Finck filed a motion for a new trial, arguing
"there was insufficient evidence to
convict." The ...