IN THE COURT OF APPEALS OF IOWA
No. 18-0731
Filed January 23, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JASIAH THANE FINCK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Patrick W.
Greenwood, Judge.
Jasiah Finck appeals the district court’s denial of his motion for a new trial.
AFFIRMED.
Patrick W. O’Bryan, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
The evidence presented at trial includes the following. Jasiah Finck and
Shawna Davidson1 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.
In or 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
1
Now known as Shawna McDonald.
3
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.
On July 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.
Pursuant to her discussion with Shawna,2 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
2
Shawna did not testify at trial.
4
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 functioning properly.
Finck 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
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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.
In relation to the foregoing events, Finck was charged by trial information
with third-degree kidnapping and violating a custodial order.3 A jury found him
guilty of the latter charge. Finck filed a motion for a new trial, arguing “there was
insufficient evidence to convict.”4 The court denied the motion, and Finck appealed
following the imposition of sentence.
We review the district court’s denial of a motion for a new trial on weight-of-
the-evidence grounds for an abuse of discretion, our most deferential standard of
review. See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013); see also
State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017). An abuse of discretion will only
be found where “the district court exercised its discretion on grounds or for reasons
3
The second count was charged in an amended trial information.
4
In the district court and on appeal, Finck frames his argument as a mixture of the
sufficiency and weight of the evidence. On appeal, the State interprets Finck’s challenge
as one concerning the sufficiency of the evidence and maintains any claim concerning the
weight of the evidence is waived. Because sufficiency- and weight-of-the-evidence claims
are distinct, see State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998), and Finck is
appealing the denial of his motion for a new trial, rather than the court’s denial of his
motions for judgment of acquittal, we interpret his argument as one concerning only the
weight of the evidence, a claim of which the State was given proper notice below.
Compare Iowa R. Crim. P. 2.24(2)(b)(6) (allowing court to grant new trial “when the verdict
is contrary to . . . evidence”); Ellis, 578 N.W.2d at 659 (noting “contrary to . . . the evidence”
means “contrary to the weight of the evidence”), with Iowa R. Crim. P. 2.19(8)(a) (allowing
court to grant a motion for judgment of acquittal “after the evidence on either side is closed
if the evidence is insufficient to sustain a conviction”); cf. Lee v. State, 815 N.W.2d 731,
739 (Iowa 2012) (“We will not exalt form over substance when the objectives of our error
preservation rules have been met.”).
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clearly untenable or to an extent clearly unreasonable.” State v. Reeves, 670
N.W.2d 199, 202 (Iowa 2003).
The jury was instructed the State was required to prove all of the following
elements for the crime of violating a custodial order:
1. On or about the 12th day of July, 2017, Shawna McDonald
had custody or physical care of [C.D.] by court order.
2. Defendant was a relative of the child.
3. The defendant took and concealed [C.D.] from Shawna
McDonald in violation of a court order.
4. [C.D.] was under the age of fourteen.
In his new-trial motion, Finck only challenged the weight of the evidence as to
element three. In ruling on Finck’s motion for a new trial, the district court noted
its consideration of both inculpatory and exculpatory evidence as well as the
credibility of the witnesses. The court concluded the State’s witnesses were
generally credible and implied, as a result of Finck’s demeanor at trial and
motivation to be untruthful, he was not as credible as the State’s witnesses. The
court considered the evidence presented, determined whether it preponderated
heavily against the jury’s affirmative finding on the third element of the crime, and
ultimately concluded it did not.
Our review is limited to “the exercise of discretion by the trial court, not of
the underlying question of whether the verdict is against the weight of the
evidence.” Neiderbach, 837 N.W.2d at 211 (quoting Reeves, 670 N.W.2d at 203).
Here, the district court considered credibility, weighed the evidence, and gave
reasons for its conclusion that the verdict was not contrary to the weight of the
evidence. This is exactly what the court is required to do under the weight-of-the-
evidence standard. See Reeves, 670 N.W.2d at 209. Although this may have
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been a case in which the evidence on the challenged element was “nearly
balanced” or was “such that different minds could fairly arrive at different
conclusions,” the district “court should not disturb the jury’s findings” in such a
case. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). We are unable to
say the district court exercised its discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable. Consequently, we affirm the
district court’s denial of Finck’s motion for a new trial.
AFFIRMED.