from the Iowa District Court for Buchanan County, David P.
Banks appeals his conviction for lascivious acts with a
C. Smith, State Appellate Defender, (until withdrawal) and
Robert P. Ranschau, Assistant Appellate Defender, for
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
POTTERFIELD, PRESIDING JUDGE.
bench trial, Joseph Banks was found guilty of lascivious acts
with a child, in violation of Iowa Code sections 709.8(1)(a),
709.8(2)(a), and 903B.1 (2016). He contends the trial court
abused its discretion in denying his motion for new trial,
asserting the verdict is contrary to the weight of the
review the trial court's ruling on a motion for new trial
on the ground the verdict is contrary to the weight of the
evidence for an abuse of discretion. State v. Ary,
877 N.W.2d 686, 706 (Iowa 2016). "[A] district court may
invoke its power to grant a new trial on the ground the
verdict was contrary to the weight of the evidence only in
the extraordinary case in which the evidence preponderates
heavily against the verdict rendered." Id. This
is not an extraordinary case.
November 4, 2016, nine-year-old B.N. was picked up after
school by Banks because she was going to go to his house
overnight and earn money by cleaning. Banks's wife was not
home when they arrived. According to B.N.'s testimony, on
the drive over, "[Banks] said, what we do stays between
[B.N.] and [Banks] and [B.N.] and [Banks] only." After
some time at Banks's home, "He asked [B.N.] for
something to cover [B.N.'s] eyes." When B.N. said
she did not have anything, Banks grabbed some piece of black
clothing from a room and tied it around B.N.'s eyes. B.N.
wanted to go to the bathroom and attempted to take the
blindfold off. Banks "said no." Instead, he helped
her walk to the bathroom, pulled her pants down, and sat her
on the toilet. Banks told B.N., "don't forget to
wipe" but then he wiped her, his hand making contact
with her vagina. He then pulled up her pants.
told Banks she wanted to go to bed. Banks walked her out of
the bathroom and to his daughter's bedroom. He took off
the blindfold, and B.N. brushed her teeth. When she return to
the bedroom, Banks changed her into her pajamas. She was
going to put on her pajama pants but he told her she
"couldn't wear the bottom. He said it gets too
hot." Banks left the room but later returned, told B.N.
to wake up, and began spreading B.N.'s legs apart. B.N.
"could feel his hand on [her] vagina when he was
spreading [her] legs apart." She told him she was too
tired, and Banks said, "We'll try again
tomorrow." In the morning, B.N. got dressed and told
Banks she felt sick and asked to go home. At trial, she said
she was not really sick but "was too scared to stay
again." When asked why she was scared, B.N. testified,
"Because when he said that we'll try again on-when
he said we'll try again tomorrow, I didn't know what
he meant, so I was scared so I said I wanted-I said I was-I
felt sick." She acknowledged she thought he meant he was
going to touch her again. B.N. did not ask for Banks's
help in going to the bathroom or dressing. She did not need
assistance in the bathroom. Nor did she need assistance to
dress or undress.
testified that in the past,  Banks had "licked my
vagina" when they were playing house. B.N. stated Banks
pretended to be her husband and explained "husbands kiss
their wives before bedtime and then . . . he picked a
particular spot to kiss me, like lick me."
mother testified that when B.N. was about seven years old,
B.N. told her mother "she was touched by her Uncle
Joe" but when her mother attempted to follow up, B.N.
"completely shut down." B.N.'s mother
telephoned police after B.N. talked with her about the
earlier incident; she was told that they would need more
details before they could investigate. Her mother continued
to allow Banks to babysit B.N. after B.N.'s report,
testifying "[B.N.] wouldn't tell me any details, so
I never knew-really knew what to think of it or anything.
I've always, you know, wondered, but I thought of that it
was family, that I could trust him."
The court found Banks guilty, making specific credibility
The court notes it found B.N.'s testimony credible given
her demeanor throughout both direct and cross-examination.
The court also found her interview with [the child protection
center] to be credible. Although there may have been some
discrepancies in the way she told her story, the court found
her testimony and interview, viewed as a whole, to be
believable and ...