State of Iowa v. Eric Chandler Parmenter ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1997
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ERIC CHANDLER PARMENTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse,
Judge.
Defendant Eric Parmenter appeals from the judgment and sentence
imposed following his conviction on two counts of sexual abuse in the third
degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Matthew M. Boles and Adam C. Witosky of Parrish Kruidenier Dunn Boles
Gribble Gentry Brown & Bergmann, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, Judge.
Defendant Eric Parmenter appeals from the judgment and sentence
imposed following his conviction on two counts of sexual abuse in the third
degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).1 On
appeal, Parmenter argues (1) the State’s abandonment of the charged timeframe
for both counts deprived him of his due process rights; (2) the State committed
prosecutorial misconduct by telling the jury to ignore the dates of the alleged
incidents specified in the jury instructions; (3) Parmenter’s right to a fair trial was
violated when the district court admitted the testimony of a non-sequestered
rebuttal witness; and (4) the verdict was contrary to the weight of the evidence.
I. Factual Background
In 2010, Parmenter lived with his parents and sibling in Perry. He was
twenty-one years old at the time. The complaining witness, K.G., also lived in
Perry with her family. She was seventeen. Parmenter’s father and K.G.’s father
had become friends working together at the local Hy-Vee, and the two families
began spending time together in 2005. These interactions included getting
together to play board games, swimming in the Parmenters’ pool, and having
campfires. Parmenter and K.G. began a dating relationship that lasted from
September 2008 to August 2009. The two kept the relationship a secret because
K.G.’s parents had disapproved K.G. dating an older boy before and they
believed K.G.’s parents would not approve her dating someone four years older
1
Parmenter was also charged with two additional counts of sexual assault in the third
degree in regard to two incidents alleged to have occurred in 2008. The district court
granted the State’s motion to dismiss these two counts at the close of discovery.
3
than her. The relationship “was mostly physical” and ended when Parmenter’s
parents found out about it. The two remained on good terms.
The first alleged sexual assault happened sometime in the summer of
2010. At trial, K.G. testified it happened “sometime in July” because she recalled
her then-boyfriend was away on vacation at the time. Parmenter had asked K.G.
to come over to his parents’ house to talk “in private.” When K.G. arrived at
Parmenter’s parents’ house, he took her to his room in the basement. There, he
laid her on his bed and proceeded to sexually assault her. K.G. testified
Parmenter told her to “at least pretend like I was enjoying myself.”
The second alleged assault occurred later that same summer. K.G. was
working at a Hy-Vee in Perry at the time. Parmenter came into Hy-Vee to speak
with K.G. He handed her a letter and informed her that he was going to hang
himself. K.G. did not act on that information during her shift. After returning
home, K.G. received a text message from Parmenter in which Parmenter stated
he was going to kill himself. K.G. begged him not to, and ran to his house—
which was only a few miles away—to stop him. Parmenter had moved out of his
parents’ house in July 2010 and was in the process of renovating his new home.
She arrived to find him standing on a stool with a noose around his neck. When
Parmenter saw K.G., he kicked the stool out from under his feet. K.G. supported
his legs and talked him into getting back on the stool. Exhausted, K.G. sat down
in Parmenter’s living room. K.G. smelled alcohol on Parmenter’s breath when he
came and sat down next to her. Parmenter proceeded to “d[o] the same thing
that he in . . . the bedroom at his parents’ house.” He again told her to “at least
act like I liked it.”
4
K.G. did not tell anyone about either incident until 2013, when she told a
counselor about both incidents. K.G. told her brother D.G. about the incidents in
late 2016 or early 2017. D.G. decided to confront Parmenter about the
allegations in April 2017. D.G. invited Parmenter to a park in Perry and secretly
recorded Parmenter on his cellphone. A redacted version of the recording was
played for the jury. In the recording, Parmenter does not admit to any
wrongdoing but states at various points “I’m not saying what I did was right” and
when asked about what he believed K.G. told the police said “knowing your
sister, she’d probably say the truth.”
K.G. contacted the Perry Police Department in June 2017. Detectives
interviewed K.G., D.G., their father, Eric. Parmenter and his family declined to
give interviews. During D.G.’s interview with Perry police, he informed them that
he had the recording of the conversation with Parmenter but he had lost it when
he broke his phone. D.G. was able to recover the recording and turned it over to
Perry police in November 2017. Parmenter was arrested in March 2018.
II. Procedural Background
Leading up to the jury trial, Parmenter moved to exclude D.G.’s recording.
He challenged the recording’s foundation and argued it constituted hearsay and
was unfairly prejudicial. The district court denied Parmenter’s motion, instead
redacting the forty-four minute recording to the ten-and-a-half minute clip that
was ultimately played to the jury. Parmenter does not challenge that evidentiary
ruling on appeal.
At trial, Parmenter challenged a number of the details in K.G.’s account of
both sexual assaults including when they allegedly happened. The trial
5
information gave specific date ranges for both sexual assaults: it stated the
sexual assault at Parmenter’s parents’ house happened “between July 15, 2010
and July 31, 2010”; the sexual assault at his house happened “between August
15, 2010 and August 31, 2010.” Parmenter challenged these dates throughout
trial. Parmenter testified that he had moved his bed from his parents’ house to
his house in Perry in early July, and no bed was moved in to replace it,
contradicting K.G.’s allegation that he had laid her down on the bed before
sexually assaulting her at his parents’ house. His account was further
corroborated by his mother, who testified there was no bed in the basement
bedroom after Parmenter moved his bed out. In regard to the second alleged
incident, Parmenter offered evidence about an incident occurring July 29; K.G.
had informed law enforcement. Parmenter was hospitalized as a result. At the
close of the State’s case in chief, Parmenter moved for directed verdict on both
counts, arguing the State had not shown the alleged sexual assaults occurred in
the date ranges specified in the trial information. The district court denied the
motion.
Parmenter further testified K.G. had never seen him with a noose around
his neck and did not talk him into getting back on a stool. He maintained drywall
had been hung in the house, making it impossible for a noose to be hung from
the ceiling. To rebut Parmenter’s testimony, the State called K.G.’s father to
testify. He had not been sequestered and had observed K.G.’s testimony. He
testified he was familiar with Parmenter’s home, and had seen a noose hanging
from the ceiling in a hallway sometime in “late summer of 2010.” Parmenter
preserved an objection to the testimony before K.G.’s father testified.
6
On the third day of trial, the court heard argument related to K.G.’s father’s
testimony and discussed the jury instructions with the parties before closing
arguments. The court first addressed K.G.’s father’s testimony and overruled
Parmenter’s objection:
The rebuttal testimony did not contradict the majority of the
testimony at all except to say that there was a part that he observed
of the house that—where there was an open ceiling, and he saw a
noose hanging there.
I believe, number one, that the state is entitled to put on that
rebuttal testimony; number two, that witness was listed. I believe
that witness had a deposition taken earlier, and I don’t—I believe
that justice required that the state be allowed to present that
evidence, especially given the fact that defendant raised that
particular issue in its own presentation.
Parmenter also renewed his earlier motion for directed verdict arguing again that
the inconsistencies between K.G.’s timeline of events and other testimony and
evidence showed there was insufficient evidence to present either claim to the
jury. The district court denied the motion.
The parties then reviewed the jury instructions, two of which are relevant
on appeal. Jury instruction number sixteen related to the first sexual assault
allegation and specified:
“[T]he State must prove all of the following elements of Sexual
Abuse in the Third Degree:
1. Between July 15 and July 31, 2010, the Defendant . . .
performed a sex act with [K.G.].
2. The Defendant . . . performed the sex act by force or against the
will of [K.G.].”
Jury instruction number seventeen stated the elements for the second alleged
sexual assault at Parmenter’s house later in the summer. The only difference
between the two instructions is the date range in the first element: for the first
element, jury instruction number seventeen states, “Between August 15 and
7
August 31, 2010, the Defendant . . . performed a sex act with [K.G.].” Neither
party objected to either instruction. All of the instructions were read to the jury.
Finally, the parties gave their closing arguments. The following exchange
happened during the State’s rebuttal argument when the State discussed its
burden to show whether the sexual assaults occurred during the time periods
specified in the jury instructions:
[The State:] The state doesn’t have to prove the dates of
these offenses to you. Those aren’t the elements of the offense.
The dates are there to provide reference, to separate the incidents,
and [K.G.] admits it’s possible she got the dates wrong, that she
doesn’t know for sure. She remembers it was the summer. She
tries to tie them to the specific incidences.
[Defense Counsel]: Your Honor, I’m going to object to these
lines. There’s nothing in the instructions that say that dates don’t
matter.
THE COURT: Counsel, we won’t be making any arguments
outside of your closing summations. Counsel, approach the bench.
You will disregard the statements that counsel for the defendant
has just made at this point in time, unless I tell you different after
this.
The court did not further instruct the jury after an unreported sidebar
conversation with counsel. The State did not repeat its argument about the
timeframes after this exchange.
The jury convicted Parmenter of both counts of sexual assault in the third
degree. Parmenter moved for a new trial, arguing he did not receive a fair trial
due to the State’s abandonment of the timelines and its use of K.G.’s father’s
testimony to rebut his own, in violation of his due process rights under the United
States Constitution and the Iowa Constitution. He argued the prosecutor’s
direction to the jury to ignore the charged timeframes constituted prosecutorial
misconduct and that the jury verdict was against the weight of the evidence. The
8
district court denied the motion, analyzing the claimed misconduct under State v.
Graves, 668 N.W.2d 860 (Iowa 2003). The court stated that the prosecutor’s
statements were “contrary to the court’s instructions on the law” but that
marshalling instructions numbers sixteen and seventeen, in conjunction with the
court’s instructions that arguments of counsel were not evidence, were sufficient
to countermand any prejudice to Parmenter. The court stated it had considered
the possible effect of a cautionary instruction following the prosecutor’s
statements and determined the court’s instructions to the jury were sufficient.
The court sentenced Parmenter to two concurrent sentences of ten years
in prison. Parmenter appeals.
III. Standard of Review
“We review constitutional issues de novo.” State v. Lilly, 930 N.W.2d 293,
298 (Iowa 2019). “We review a district court’s ruling on claims of prosecutorial
misconduct for abuse of discretion, which occurs when ‘a court acts on grounds
clearly untenable or to an extent clearly unreasonable.’” State v. Coleman, 907
N.W.2d 124, 134 (Iowa 2018) (quoting State v. Krogmann, 804 N.W.2d 518, 523
(Iowa 2011)). Decisions to sequester witnesses and decisions on rebuttal
testimony are reviewed for abuse of discretion. State v. Agent, 443 N.W.2d 701,
704 (Iowa 1989); see State v. Sharkey, 311 N.W.2d 68, 70 (Iowa 1981)
(reviewing the district court’s denial of the defendant’s motion to exclude the
State’s witnesses from the courtroom when not testifying under the abuse-of-
discretion standard). “We review a district court's ruling as to whether a verdict
was contrary to the weight of the evidence for abuse of discretion.” State v.
Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). “We will find an abuse of
9
discretion when ‘the district court exercises its discretion on grounds or for
reasons that were clearly untenable or unreasonable.’” State v. Headley, 926
N.W.2d 545, 550 (Iowa 2019) (quoting In re J.A.L., 694 N.W.2d 748, 751 (Iowa
2005)). “[A]ppellate review is limited to a review of the exercise of discretion by
the trial court, not of 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).
IV. Discussion
a. Error Preservation
The State challenges error preservation for each of Parmenter’s claims on
appeal except his weight of the evidence claim. “[E]rror preservation is based on
fairness.” DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). “[O]ne party should
not ambush another by raising issues on appeal, which that party did not raise in
the district court.” Id.
It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we
will decide them on appeal. When a district court fails to rule on an
issue properly raised by a party, the party who raised the issue
must file a motion requesting a ruling in order to preserve error for
appeal.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “If the court’s ruling
indicates that the court considered the issue and necessarily ruled on it, even if
the court’s reasoning is ‘incomplete or sparse,’ the issue has been preserved.”
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (quoting Meier, 641
N.W.2d at 540). Errors in closing arguments and constitutional errors must be
preserved in the same manner as any other issue. State v. Johnson, 272
N.W.2d 480, 484 (Iowa 1978).
10
Parmenter argues he preserved error on all of his claims by raising each
of them in his motion for new trial. However, a “[m]otion for new trial ordinarily is
not sufficient to preserve error where proper objections were not made at trial.”
State v. Seltzer, 288 N.W.2d 557, 559 (Iowa 1980). The question is then
whether objections alerting the court to the issues were made at trial. In regard
to Parmenter’s due process and prosecutorial misconduct claims, we conclude
Parmenter did preserve error on prosecutorial misconduct but did not preserve
his due process claim. Both claims stem from the State’s assertion during its
rebuttal argument that it did not need to prove the alleged sexual assaults
happened in the timeframes specified in the trial information. The district court
seemed to overrule defense counsel’s objection to the prosecutor’s statement
when it was made during rebuttal argument telling the jury “to disregard the
statements that counsel for the defendant has just made.”2 At this point,
Parmenter did not need to move for a mistrial to preserve error. Krogmann, 804
N.W.2d at 526. Cf. Neiderbach, 837 N.W.2d at 209 (discussing Krogmann and
noting its “rationale does not apply when the defendant’s objection is overruled . .
. . A motion for mistrial would be futile when the district court has overruled the
objection to the statements giving rise to the grounds for a mistrial”). We address
the merits of Parmenter’s prosecutorial misconduct claim. There is no indication,
2
The district court’s statements during the sentencing hearing suggest the court
misspoke in directing the jury to disregard defense counsel’s objection, rather than the
prosecutor’s statements. At that hearing, the district court noted the court “instructed the
prosecutor not to continue that argument” concerning the dates during the off-record
sidebar, apparently agreeing with defense counsel. The record does not reflect whether
the district court expressly sustained defense counsel’s objection at the sidebar, but to
the extent the jury was instructed to disregard defense counsel’s statement, the
objection preserved error.
11
however, that the district court considered whether the prosecutor’s statement
violated Parmenter’s due process rights by creating a fatal variance between the
trial information and the evidence offered at trial which deprived him of the ability
to prepare his defense. That argument was first raised in Parmenter’s motion for
new trial. As such, we conclude Parmenter has not preserved that claim.
The State also disputes error preservation on Parmenter’s fair trial claim
relating to the admission of K.G.’s father’s testimony. Primarily, the State argues
error was not preserved because Parmenter did not expressly invoke Iowa Rule
of Evidence 5.615. See Iowa R. Evid. 5.615 (“At a party’s request the court may
order witnesses excluded so that they cannot hear other witnesses’ testimony.
Or the court may do so on its own.”). We note, however, that a reference to a
specific rule is not necessary; “[i]f the court’s ruling indicates that the court
considered the issue and necessarily ruled on it, even if the court’s reasoning is
‘incomplete or sparse,’ the issue has been preserved.” Lamasters, 821 N.W.2d
at 864. Here, Parmenter objected to the admission of K.G.’s father’s rebuttal
testimony at trial, and the district court overruled his objection. We conclude
Parmenter has preserved error on this issue as well and will address the merits
of this claim.
b. Merits
i. Dates of Alleged Sexual Assaults
On appeal, the State maintains that, because the date an assault occurred
is not an element of a sexual abuse charge, State v. Laffey, 600 N.W.2d 57, 60
(Iowa 1999), it did not need to prove the alleged sexual assaults here occurred
within the dates specified in the jury instructions. In support its argument, the
12
State cites the supreme court’s opinion in State v. Rankin, 181 N.W.2d 169, 171
(Iowa 1970), where the court concluded the State was not required to prove the
alleged sexual assault occurred on a certain date to find the defendant guilty. In
Rankin, however, the jury instructions did not specify a date for the alleged
sexual assault. 181 N.W.2d at 171. Rankin does not address a situation where,
as here, the jury instructions require the State to prove the alleged offenses
occurred between specific dates.
The State further cites several published and unpublished decisions of our
court, all of which are similarly distinguishable from the procedural posture in this
case. In State v. Griffin, 386 N.W.2d 529, 531–32 (Iowa Ct. App. 1986), and
State v. Brown, 400 N.W.2d 74, 76–77 (Iowa Ct. App. 1986), panels of our court
concluded the State did not have to prove the alleged crimes occurred on a
specific date where the jury instructions and trial information specified the alleged
crimes occurred “on or about” particular dates. The phrase “on or about” is a
legal term of art that means “[a]pproximately” and is used “to prevent a variance
between the pleading and the proof, usu[ally] when there is any uncertainty about
the exact date of a pivotal event.” On or about, Black’s Law Dictionary (11th ed.
2019). That same phrase was used in the two other cases on which the State
relies, State v. Cain, No. 14-1506, 2015 WL 5285763, at *2–3 (Iowa Ct. App.
Sept. 10, 2015), and State v. Potter, No. 09-0579, 2010 WL 1875649, at *1–2
(Iowa Ct. App. May 12, 2010), two unreported decisions from our court. In Cain
the defendant was charged with assaulting the complaining witness “on or about
January 20, 2013.” 2010 WL 5285763, at *2. During deliberations, the jury
requested clarification on the timeframe of the alleged assault. Id. After
13
conferring with counsel for both parties, the district court provided a supplemental
instruction that noted the date listed in the instructions was “simply a device by
which it alerts an individual to a particular event” and “[i]t is the event and not the
date that controls.” Id. We affirmed, noting the district court’s supplemental
instruction correctly stated the law. Id. A similar fact pattern happened in Potter.
In Potter, the defendant was charged with sexually assaulting three complaining
witnesses in three incidents in 2002, 2004 and 2008. 2010 WL 1875649, at *3.
The jury was instructed that “[t]he State does not have to prove the specific date
on which the crime occurred.” Id. (alteration in original). During closing
arguments, the State told the jury the evidence used to prove the 2004 incident
could be used to prove the 2002 incident, despite a jury instruction specifying the
2002 incident occurred “[o]n or about the 24th day of May 2002.” Id. During
deliberations, the jury asked for clarification about the date, and, after conferring
with counsel, the district court advised them to look at its earlier instruction about
the dates of the alleged offenses. Id. Neither party objected to this
supplementary instruction. Id. Unlike Parmenter, each of these cases involved a
jury instruction directing the jury the dates need not be proven by the State. See
also State v. Juste, No. 18-2083, 2019 WL ______, at *___ (Iowa Ct. App. Dec.
18, 2019) (concluding the district court did not err by giving the jury an instruction
stating the date of the alleged sexual assault “is not legally significant”).
Unlike the cases the State cites, the trial information charged and the jury
here was instructed the alleged sexual assaults occurring during two discrete
ranges of days. “[T]he instruction, right or wrong, becomes the law of the case” if
no objection is made to the instruction. State v. Robinson, 859 N.W.2d 464, 482
14
(Iowa 2015) (quoting State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988)).
Because the State failed to object to those instructions, they became the law of
the case. Therefore, the State was required to prove the sexual assaults
occurred between July 15 and July 31 and August 14 and August 31
respectively. We turn next to the question whether the prosecutor’s rebuttal
argument to the jury, while contrary to the law of the case, requires a reversal of
Parmenter’s convictions.
ii. Prosecutorial Misconduct
Parmenter first argues the State’s argument to the jury to disregard the
charged time periods for the two sexual assaults constituted prosecutorial
misconduct. Prosecutors “owe[] a duty to the defendant as well as to the public.
The prosecutor’s duty to the accused is to ‘assure the defendant a fair trial’ by
complying with ‘the requirements of due process throughout the trial.’” Coleman,
907 N.W.2d at 139 (quoting Graves, 668 N.W.2d at 870). Prosecutorial
misconduct occurs where the prosecutor “acted with reckless disregard of this
duty or intentionally made statements in violation of an obvious obligation, legal
standard, or applicable rule that went beyond an exercise of poor judgment.” Id.
Once a defendant shows the prosecutor committed prosecutorial misconduct,
they must still show prejudice to succeed on their claim. Id. at 138.
As discussed above, the State’s failure to object to the inclusion of the
specific dates in the two marshalling instructions or failure to request the jury be
instructed the dates of the offenses need not be proven by the State results in a
requirement the State prove the two sexual assaults occurred in the dates listed
in the jury instructions. Even assuming the prosecutor’s statement was
15
misconduct, however, this claim still fails because Parmenter has not shown
prejudice. We use a five-factor test to assess whether a defendant was
prejudiced by a prosecutor’s misconduct: “(1) the severity and pervasiveness of
the misconduct, (2) the significance of the misconduct to the central issues in the
case, (3) the strength of the State’s evidence, (4) the use of cautionary
instructions or other curative measures, and (5) the extent to which the defense
invited the misconduct.” Graves, 668 N.W.2d at 869 (citations omitted).
Applying these factors, we conclude no prejudice has resulted from the
prosecutor’s statement. At the outset, we note Parmenter’s prosecutorial
misconduct claim relates to one statement made by the prosecutor during the
rebuttal argument. Isolated incidents such as this normally do not rise to the
level of “severe and pervasive” misconduct required to show prejudice.
Coleman, 907 N.W.2d at 140. The prosecutor’s argument was otherwise
professional and “sought to apply the law to the case.” Id.
The factor given the most weight in the analysis is the third factor. Id. As
the district court noted during sentencing “the weight of the evidence was totally
dependent on who the jury believed.” Apart from D.G.’s audiotape and the letter
Parmenter gave to K.G. before the first incident the State relied primarily on
testimony to make its case. Likewise, Parmenter relied primarily on testimony to
defend himself. The jury found K.G.’s account and corroborating evidence more
credible than Parmenter’s account. Although defense counsel did not ask for a
curative measure in regard to the prosecutor’s statement, the district court
admonished the jury immediately before the closing arguments not to construe
counsel’s arguments as either evidence or statements on the law:
16
Counsel for each party will be summarizing the testimony that you
heard and the evidence which was presented during the trial. They
will be recalling the evidence, as you will later. They will not try to
mislead you, and if their recollection of the testimony is not the
same as yours, you must follow and rely on your own recollection.
The summations are merely that, summations. They are not
evidence, and they should not be construed by you as evidence;
and they are not instructions on the law of the case. The
summations are intended to help you understand the contentions of
each party.
Because we cannot say Parmenter was prejudiced by the prosecutor’s statement
during rebuttal argument, his claim of prosecutorial misconduct must fail.
iii. Admission of Non-Sequestered Witness’s Testimony
Next, Parmenter argues the district court erred by permitting the testimony
of K.G.’s father, who had not been sequestered during trial, to rebut Parmenter’s
own testimony. “In Iowa . . . a party is not entitled as a matter of right to
exclusion of witnesses from the courtroom.” State v. Pierce, 287 N.W.2d 570,
574 (Iowa 1980). Either party or the court on its own motion may move to
sequester a witness. See Iowa R. Evid. 5.615. Parmenter never moved to
sequester witnesses, instead relying on an “informal agreement” with the State
not to call K.G.’s father to testify.
Even if K.G.’s father had violated a sequestration order by remaining in
the courtroom, Parmenter cannot show the district court abused its discretion by
allowing K.G.’s father to give rebuttal testimony. “Rebuttal evidence is that which
explains, repels, controverts, or disproves evidence produced by the opposing
party.” Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). And we will only
reverse the district court’s decision to admit rebuttal testimony if Parmenter “was
17
substantially prejudiced by the evidence.” State v. Belken, 633 N.W.2d 786, 796
(Iowa 2001).
The district court summarized the impact and extent of K.G.’s father’s
testimony, noting
[K.G.’s father]’s testimony was substantially and limited to
the fact that he observed a noose hanging in the subject house, or
the house that was the subject of the testimony at some point in
time during the summer of 2010.
The only testimony—or the thing that that related to
somewhat during the state’s case was the fact that the complaining
witness testified that she observed the defendant with a noose
around his neck and threatening to kill himself and that following
that then, the defendant put on more than one witness who testified
that the house was finished to the extent that there was drywall on
the ceilings, also to the fact that the ceilings were 7 foot high, also
to the fact that the defendant is almost 6 feet tall, with all of the
direct implications that there was no way, standing on a stool, that
the events could have happened as explained by the complaining
witness.
The rebuttal testimony did not contradict the majority of the
testimony at all except to say that there was a part that he observed
of the house that—where there was an open ceiling, and he saw a
noose hanging there.
While K.G.’s father’s testimony may have prejudiced Parmenter on the one point,
we cannot say the district court exercised its discretion in the context of a trial
determined by the credibility of witnesses “on grounds or for reasons that were
clearly untenable or unreasonable.” Headley, 926 N.W.2d at 549. The district
court did not abuse its discretion in overruling Parmenter’s objection to the
admission of K.G.’s father’s rebuttal testimony.
iv. Weight of the Evidence
Finally, Parmenter argues the district court erred by failing to exercise
discretion in weighing the evidence. The weight-of-the-evidence standard “refers
to a determination that more evidence supports one side than the other.” State v.
18
Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). The district court overruled
Parmenter’s motion for new trial stating:
In this case, the weight of the evidence was totally dependent on
who the jury believed. Thus the defendant is in essence asking the
Court to substitute its judgment for that of the jury with regard to the
credibility of witnesses.
The Court understands, as [defense counsel] has correctly
pointed out, that in its consideration of this motion that the Court
can give further consideration to the credibility of the witnesses.
However, even if the Court would not totally agree with the jury
does not constitute an appropriate reason to question their findings
with regard to credibility, and by making that statement I do not
necessarily indicate that I have any specific problem with the
findings of the jury.
In any event, I am not going to substitute my judgment.
Even if there was a difference, the jury was fully advised with
regard to how to make its decision. The jury was advised with
regard to how to approach determining the facts in light of
conflicting stories and how to determine credibility. The jury
obviously did that. There’s no reason to believe that they did not.
While the district court must exercise its discretion “carefully and sparingly,” State
v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998), it cannot refuse to exercise its
discretion altogether. See State v. Scalise, 660 N.W.2d 58, 65–66 (Iowa 2003)
(“[T]he district court must ‘weigh the evidence and consider the credibility of the
witnesses.’ . . . [T]he court must independently consider whether the verdict is
contrary to the weight of the evidence and that a miscarriage of justice may have
resulted.” (quoting Ellis, 578 N.W.2d at 658)). Because the district court did not
exercise its discretion to weigh the credibility of the witnesses, we reverse the
district court’s ruling denying Parmenter’s motion for new trial and remand the
case to the district court to rule on his motion for new trial under the correct
weight-of-the-evidence standard. See Nitcher, 720 N.W.2d at 560.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.