Full Opinion

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-1334 Filed November 4, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Wendell Karl Harrington, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Polk County, The Honorable Sarah Crane (continuance), and The Honorable David Nelmark (trial and sentencing), Judges. _______________ AFFIRMED _______________ Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, attorney for appellant. Brenna Bird, Attorney General, and Tessa Register, Assistant Attorney General, attorneys for appellee. _______________ Considered without oral argument by Greer, P.J., and Badding and Sandy, JJ. Opinion by Badding, J. 1 BADDING, Judge. Two homes in Des Moines were burglarized early one morning in June 2024. The owners were gone. But a security system inside one of the homes caught the intruder on camera. Witnesses who were shown the surveillance videos later identified him as Wendell Harrington. Harrington was charged with two counts of third-degree burglary. At his jury trial on the charges, Harrington claimed the man on the videos was not him, testifying “it doesn’t look like me to me.” Rejecting that defense, the jury found Harrington guilty of third-degree burglary for the intrusion into the home with the camera and guilty of trespass for the break-in at the next-door neighbor’s house.1 Harrington appeals, claiming the district court abused its discretion by denying his request to continue the trial so that he could find an expert on eyewitness identification and cross-racial identification. Harrington also claims the jury’s verdicts were inconsistent, the burglary verdict was contrary to the weight of the evidence, and the court abused its discretion by sentencing him to prison for the burglary conviction. We affirm. I. Expert Testimony Ten days before his jury trial—and without waiving his ninety-day right to a speedy trial—Harrington filed a motion to continue, arguing that he needed “additional time to investigate and attempt to retain an expert in cross-racial identification.” The State resisted the motion, asserting that although its witnesses who identified Harrington from the videos were white 1 Harrington was also charged with operating a motor vehicle without the owner’s consent for a truck that was taken from one of the homes. The jury was hung on that charge, which was later dismissed by the State. 2 and Harrington was not, there was no need for an expert because “[w]e literally have a video . . . of the defendant inside the home.” The district court denied the motion because “this trial date’s been set, defense has been aware of that trial date,” and no expert witness was identified. Harrington renewed the motion at the start of the trial and again through a motion for new trial after the jury’s guilty verdicts. The court denied those motions too. Harrington challenges these discretionary rulings on appeal. See State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (reviewing motion to continue for an abuse of discretion); State v. Pirie, 18 N.W.3d 238, 247 (Iowa 2025) (reviewing motion for new trial for an abuse of discretion). He contends the State’s case against him “turned primarily on eyewitness identification, particularly cross-racial identification.” Emphasizing the potential for error that exists with that type of evidence,2 Harrington argues that forcing him to proceed to trial without expert testimony “to educate the jury on well- documented flaws in eyewitness identification” materially impaired his defense. We reject Harrington’s claim for two reasons. First, as the State points out, it rests on a false premise. The witnesses who identified Harrington were not eyewitnesses to his crimes. See Eyewitness, Black’s Law Dictionary (12th ed. 2024) (“Someone who personally sees an event.”); see also Hamilton v. Becker, 86 N.W.2d 142, 144 (Iowa 1957) (noting an eyewitness is “[a] person who could testify as to what he had seen” (citation omitted)). Instead, they knew Harrington and recognized him after being shown the surveillance 2 See State v. Kepner, 27 N.W.3d 545, 548 (Iowa 2025) (noting that “ʻmistaken eyewitness identification’ is ʻthe primary cause for the conviction of innocent people in our criminal justice system’” (citation omitted)); State v. Doolin, 942 N.W.2d 500, 524 (Iowa 2020) (Appel, J., dissenting) (observing that “cross-racial identification is subject to a higher rate of error”). 3 videos.3 Thus, there was no need for an expert to warn the jury about common misconceptions surrounding eyewitness identifications. See State v. Kepner, 27 N.W.3d 545, 556 (Iowa 2025) (discussing those misconceptions). The jury was shown the videos throughout trial and given them to review during deliberations. As the State argues, the “jurors could rewind, pause, and rewatch the videos as often as they needed until they were convinced, or unconvinced, of Harrington’s identity.” Second, Harrington did not have an expert witness secured or even identified. While there was still time left before the speedy-trial deadline expired, the district court’s “proximity to the trial process” placed it in a better position than us “to make a determination in accordance with demands of justice.” State v. Grimme, 338 N.W.2d 142, 144 (Iowa 1983) (citation omitted). We will not interfere with the court’s “very broad” discretion to grant or deny a continuance “unless it clearly appears that the trial court has abused its discretion, and an injustice has resulted therefrom.” Id. (citation omitted). Harrington has not met that burden with his generalized complaints about a hypothetical expert. We accordingly affirm the court’s rulings denying Harrington’s motions to continue and for a new trial. II. Inconsistent Verdicts Harrington next claims the jury’s verdicts finding him guilty of “burglary as to one residence” but “trespassing as to another” were inconsistent because the evidence for “both of them was largely the same.” 3 One witness was Harrington’s parole officer, who had regular, in-person meetings with him for more than a year before the burglaries. The other was a detective who had interviewed Harrington about a stolen vehicle the month before the burglaries. Both were familiar with Harrington and able to identify his facial features. 4 The State contests error preservation and contends the claim also fails on its merits. We agree on both fronts. Harrington raised the inconsistent-verdict claim in his combined motion for new trial and in arrest of judgment. But that motion was made after the jury was discharged. In State v. Totaye, we held that to pursue an inconsistent-verdicts claim on appeal, a criminal defendant must timely raise the objection before the district court discharges the jury, such that the jury is able to reconsider the verdict as contemplated by Iowa Rule of Criminal Procedure 2.22(6) or the trial court may grant a new trial before jeopardy precludes it. No. 22-1169, 2024 WL 3518074, at *10 (Iowa Ct. App. July 24, 2024). Because Harrington did not raise his objection to the verdicts before the jury was discharged, he did not preserve error on this claim. Even if Harrington had preserved error, we would affirm on the merits. The test to be applied in examining jury verdicts for inconsistency “is whether the verdict is so logically and legally inconsistent as to be irreconcilable within the context of the case.” State v. Montgomery, 966 N.W.2d 641, 651 (Iowa 2021) (citation omitted). In denying Harrington’s claim, the district court found “that the evidence [from] the two residences was different.” As the court noted, the jury found Harrington guilty of burglary for the residence that caught him on camera inside the home. The other residence lacked video footage, and defense counsel impeached that homeowner’s testimony on cross-examination. Given the different evidence on the two counts, the verdicts are not irreconcilable. See State v. Leon, No. 23-1988, 2025 WL 548694, at *2–3 (Iowa Ct. App. Feb. 19, 2025) (rejecting inconsistent-verdict claim in a case with “multiple counts and multiple acts” covering “different times and different places”). 5 III. Weight of the Evidence Returning to his complaint about the lack of expert testimony on eyewitness and cross-racial identification, Harrington claims the jury’s burglary verdict was contrary to the weight of the evidence. He again asserts the “State’s case rested almost entirely on eyewitness identification,” pointing out there was no forensic or physical evidence tying him to the burglary. But, as the district court found in denying Harrington’s new trial motion, there were videos of the burglary. “This is not a case where the evidence supporting the verdict was so scanty and the evidence opposing it was so compelling that the verdict must be considered contrary to the weight of the evidence.” State v. Gilmore, No. 11-0858, 2012 WL 3589810, at *6 (Iowa Ct. App. Aug. 22, 2012). The district court did not abuse its wide discretion in denying Harrington’s motion. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). IV. Sentence Harrington finally asserts the district court abused its discretion in sentencing him to prison for the burglary conviction. He contends the court failed to give appropriate weight to mitigating factors, including his age, family circumstances, employment circumstances, and substance-use issues. The district court considered those factors but found they were outweighed by the need to protect the public. That decision “is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters.” State v. Damme, 944 N.W.2d 98, 105–06 (Iowa 2020) (citation omitted). We will not reweigh the factors on appeal or second-guess the sentencing court’s decision. Id. at 106. Instead, the only question before us is whether the court’s discretion 6 “was exercised on grounds or for reasons that were clearly untenable or unreasonable.” Id. (citation omitted). Harrington has a forty-year career as a burglar, with past stints in prison and on probation. The district court cited that history in sentencing Harrington to prison, explaining that it needed to consider the dual goals of protecting the public [while] also giving Mr. Harrington the maximum opportunity for rehabilitation. The Court has heard Mr. Harrington’s remarks as to the ineffectiveness of prison and rehabilitating him and curing his addiction. The Court believes that factor is essentially a wash in that prison hasn’t worked for rehabilitation but neither has probation. He has been unsuccessful on that twice in the past, the Court notes that he was on parole at the time of the incident offense. As for the second factor in protecting the public, what we know is that while Mr. Harrington is in prison, he cannot burglarize and victimize people, but when he has been given the chance to be out, he has victimized people. Harrington’s argument essentially asks us to reweigh the mitigating factors—a task we cannot do. Id.; see also State v. Gordon, 998 N.W.2d 859, 863 (Iowa 2023) (“The test for whether a sentencing court abused its discretion is not whether we might have weighed the various factors differently.”). He may believe the record justified a more lenient sentence, but “it is equally clear under our standard of review that the district court was justified in imposing incarceration.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). We find no abuse of discretion and affirm Harrington’s sentence. AFFIRMED. 7