January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
JILL TJERNAGEL, Defendant-Appellant.
from the Iowa District Court for Hamilton County, James A.
Tjernagel appeals her conviction and sentence for sexual
abuse in the second degree following a jury trial. REVERSED
Brandon J. Brown, Robert P. Montgomery, and Adam C. Witosky
of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Mullins, J., and Scott, S.J.
Tjernagel appeals her conviction and sentence for sexual
abuse in the second degree following a jury trial. She argues
(1) trial counsel rendered ineffective assistance resulting
in prejudice by failing to object to (a) impermissible expert
testimony consisting of vouching for the credibility of the
victim, using statistics to imply guilt, profiling the
defendant, and giving information that was within the common
knowledge of the jurors, and (b) misconduct by the prosecutor
in soliciting expert vouching testimony; (2) the district
court erred in denying her motion for new trial based on her
claims of impermissible vouching testimony by expert
witnesses; (3) the jury wrongfully considered extraneous and
inaccurate information regarding punishment; (4) her rights
to compulsory process and due process were violated when the
district court quashed subpoenas for prosecutor testimony in
relation to her claims of prosecutorial misconduct; and (5)
cumulative evidentiary and constitutional errors violated her
rights to a fair trial and due process. Upon our review, we
reverse Tjernagel's conviction and remand for new trial
based on her claim trial counsel was ineffective in failing
to object to expert witness testimony vouching for the
credibility of the child victim. Because we expect testimony
regarding statistics, profiling, and common knowledge to be
issues that will be presented again on retrial, we will
address them. We do not reach Tjernagel's other claims.
Background Facts and Proceedings
2014, the State charged Tjernagel with the crime of sexual
abuse in the second degree, in violation of Iowa Code
sections 709.1(3) and .3(2) (2013), stemming from allegations
Tjernagel sexually abused her step-grandson, L.K., when she
babysat him at her home sometime before February 20, 2013.
The testimony at trial alleged the conduct occurred when L.K.
was between four and six years old.
April 2015, a jury found Tjernagel guilty of second-degree
sexual abuse. Tjernagel filed numerous posttrial motions
raising several grounds for new trial and requesting
reconsideration of her claims. After a hearing on the
motions, the district court denied Tjernagel's motions
and preserved her claims of ineffective assistance of counsel
for postconviction relief.
district court entered judgment of conviction and sentenced
Tjernagel to a term of imprisonment for no more than
twenty-five years, carrying a mandatory minimum of seventy
percent, and a lifetime special sentence pursuant to Iowa
Code section 903B.1. Tjernagel appeals.
Scope and Standard of Review
review claims of ineffective assistance of counsel de novo
because the claims implicate the defendant's Sixth
Amendment right to counsel. State v. Thorndike, 860
N.W.2d 316, 319 (Iowa 2015).
"Ineffective-assistance-of-counsel claims are an
exception to the traditional error-preservation rules."
State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).
An ineffective-assistance-of- counsel claim may be raised and
decided on direct appeal when the record is adequate to
address the claim. Iowa Code § 814.7(2), (3); see
also Fountain, 786 N.W.2d at 263.
maintains her trial counsel rendered ineffective assistance
by failing to object to testimony by expert witnesses (1)
indirectly vouching for the credibility of the complaining
child witness, (2) providing statistics regarding child
sexual abuse, (3) profiling Tjernagel as a sexual offender,
and (4) explaining topics of child sexual abuse that are
within the common knowledge of the jury. The State urges us
to preserve Tjernagel's claims for postconviction
proceedings. Because we find the record adequate in this
case, we consider the merits of Tjernagel's claims.
See Fountain, 786 N.W.2d at 263.
succeed on a claim of ineffective assistance of counsel,
Tjernagel must show by a preponderance of the evidence:
"(1) [her] trial counsel failed to perform an essential
duty, and (2) this failure resulted in prejudice."
Thorndike, 860 N.W.2d at 320 (quoting State v.
Adams, 810 N.W.2d 365, 372 (Iowa 2012)); accord
Strickland v. Washington, 466 U.S. 668, 687 (1984).
"Under the first prong, 'we measure counsel's
performance against the standard of a reasonably competent
practitioner.'" Thorndike, 860 N.W.2d at
320 (quoting State v. Clay, 824 N.W.2d 488, 495
(Iowa 2012)). "Under the second prong, the [defendant]
must establish that prejudice resulted from counsel's
failure to perform an essential duty." Id.
Failure to prove either prong is fatal to the claim. See
State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006). In
examining Tjernagel's claims, we presume trial counsel
performed his duties competently. See Thorndike, 860
N.W.2d at 320.
supreme court has recently elaborated on what constitutes
vouching for the credibility of a witness, both directly and
indirectly. See State v. Dudley, 856 N.W.2d 668,
676-77 (Iowa 2014); State v. Brown, 856 N.W.2d 685,
689 (Iowa 2014); State v. Jaquez, 856 N.W.2d 663,
665-66 (Iowa 2014). The court has explained:
Although we are committed to the liberal view on the
admission of psychological evidence, we continue to hold
expert testimony is not admissible merely to bolster
credibility. Our system of justice vests the jury with the
function of evaluating a witness's credibility. The
reason for not allowing this testimony is that a
witness's credibility "is not a 'fact in
issue' subject to expert opinion." Such opinions not
only replace the jury's function in determining
credibility, but the jury can employ this type of testimony
as a direct comment on defendant's guilt or innocence.
Moreover, when an expert comments, directly or indirectly, on
a witness's credibility, the expert is giving his or her
scientific certainty stamp of approval on the testimony even
though an expert cannot accurately opine when a witness is
telling the truth. In our system of justice, it is the
jury's function to determine the credibility of a
Dudley, 856 N.W.2d at 676-77; Brown, 856
N.W.2d at 689; Jaquez, 856 N.W.2d at 665.
challenges several statements made by the State's expert
witness, Dr. Anna Salter, a child sexual abuse expert, and
statements made by her own witness, Tammera Bibbins, who
conducted two forensic interviews of L.K. On our review, we
address each statement Tjernagel "claims as
objectionable to determine whether the State crossed the
line." Dudley, 856 N.W.2d at 678.
time of trial, L.K. was eight years old. He testified that on
one occasion Tjernagel took off her clothes and took off his
clothes, made him lie down on her bed, and put her mouth on
his penis. He testified that while this was going on, he
could smell popcorn and SpongeBob was on the television in
Tjernagel's bedroom. L.K. also testified that on another
occasion Tjernagel took off their clothes and began
"playing with" his penis. He testified during this
second incident, Tjernagel also put a green
"bullet" in his butt that hurt when he later
defecated at home and the object came out.
State called Dr. Salter as the final witness for its
case-in-chief. Prior to trial, the parties had agreed to
avoid inadmissible testimony regarding the credibility of
witnesses. During her testimony, Dr. Salter made it clear she
was not allowed to comment on the credibility of any other
witness or opine whether L.K. was sexually abused. Instead,
she explained the purpose of her testimony was to explain to
the jury the general dynamics of child abuse, including child
development, delayed and partial disclosure, suggestibility
and coaching, and grooming techniques employed by sex
On direct examination by the State, Dr. Salter was asked:
Q. What about the details that come from a child. What they
smelled or what was playing on the TV, things like that. If
these are false memories, where are those details coming
from? A. Well, that's a good question. Nobody coaches
SpongeBob, nobody coaches here's where you were,
here's what-what you smelled or here's what you saw.
I mean, I've never had a coaching case where the parent
coached sensory details like that to the child.
contends Dr. Salter's statements, "Nobody coaches
SpongeBob, nobody coaches here's where you were,
here's what-what you smelled or here's what you
saw" and "I've never had a coaching case where
the parent coached sensory details like that to the child,
" implied any time a child provides sensory details-what
the child sees, hears, or smells-the child must be telling
the truth because that level of detail cannot be coached.
Thus, Tjernagel asserts, Dr. Salter's testimony
improperly vouched for L.K.'s credibility regarding the
Salter was also asked on direct examination:
Q. We're going to talk about suggestibility, okay?
Q. What does that mean in this area?
A. The notion is that a child may claim something happened
that didn't happen because it was suggested to them by
someone else and they implanted the idea in the child's
Q. All right. And so under this idea of suggestibility it
means then that there is a false memory because the child now
A. The child now believes it, yes.
Q. Okay. And that is separate from a child coming in and just
making up a story?
A. Well, most people don't claim that anymore as a
defense because there's not much-why would a child just
come in and make up a story? So that isn't something
that's gotten a lot of ground. So it's typically
either that the story is accurate or that some of the story
is inaccurate, but that the child believes it. Now sometimes
they accuse kids of lying, but that's fairly rare these
Q. And has there been a lot of research done in that area?
A. There is. I've got about four volumes with me of
research in that area. It's coming out all the time.
contends Dr. Salter's question, "[W]hy would a child
just come in and make up a story?" and her further
reference to "volumes" of research on
suggestibility improperly vouched for L.K.'s credibility
and truthfulness. She asserts Dr. Salter's statements
indirectly told the jury young children do not lie about
sexual abuse and, therefore, L.K. was credible.
State then asked Dr. Salter whether "we need to be
worried about" the details in a child's story
changing over time. Dr. Salter replied:
Any kid that can come into court and face this group of
people is under so much pressure to-it was hard for adults to
come in and talk about their genitals and being raped. We put
eight year olds in that situation because we have to, but
I'm never surprised when we can't get the whole story
out of them because- because it's a very intimidating
place and they're trying their best to remember.
argues Dr. Salter's response again vouches for L.K.'s
credibility. She contends Dr. Salter's statements
indicated L.K.'s testimony about the alleged abuse was
credible regardless of any inconsistencies in his story
because he was willing to testify in court despite his young
State also questioned Dr. Salter about the forensic
interviews performed in this case:
Q. And specifically on the tapes here did you see anything
that was-you said-I think you testified earlier that you did
not see anything inappropriate done in the interview?
A. That's correct.
Q. And would that go for on the child's side as well as
the interviewer's side?
claims Dr. Salter communicated her belief to the jury that
L.K. was telling the truth by stating both L.K. and the
interviewer were appropriate during the interviews.
courts have generally "permitted an expert witness to
testify regarding the 'typical symptoms exhibited by a
[victim of sexual abuse], '" why a "child's
recollection of the events may seem inconsistent, " and
"why child victims may delay reporting their sexual
abuse" because it can "assist the jury in
understanding some of the seemingly unusual behavior child
victims tend to display." Dudley, 856 N.W.2d at
676-77 (citations omitted); see also Iowa R. Evid.
5.702 (permitting expert opinion testimony "if . . .
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue"). But courts should "reject expert testimony
that either directly or indirectly renders an opinion on the
credibility or truthfulness of a witness." State v.
Myers, 382 N.W.2d 91, 97 (Iowa 1986).
Dudley, our supreme court found the testimony of an
expert witness, the child victim's treating therapist,
crossed the "very thin line" when the expert
testified the child's "physical manifestations or
symptoms" were consistent with sexual abuse, and
"indirectly vouch[ed] that the victim was telling the
truth." 856 N.W.2d at 677. The court also found the
forensic interviewer's testimony crossed the line when
she recommended the child victim receive therapy and stay
away from the defendant. Id. at 678. The court noted
the interviewer "based these recommendations on her
opinion that she believed [the defendant] sexually abused
[the child] . . .; thus, indirectly vouching for [the
child's] credibility." Id.
Jaquez, the supreme court held the expert
witness's testimony indirectly vouched for the child
victim's credibility "[b]y opining [the child]'s
demeanor was 'completely consistent with a child who has
been traumatized, particularly multiple times.'" 856
N.W.2d at 665. The court reasoned, "We allow an expert
witness to testify generally that victims of child abuse
display certain demeanors." Id. at 666.
"However, when an expert witness testifies a child's
demeanor or symptoms are consistent with child abuse, the
expert crosses that very thin line and indirectly vouches for
the victim's credibility, thereby commenting on the
defendant's guilt or innocence." Id.
State acknowledges Dr. Salter's "testimony was
almost entirely couched in general terms" and
otherwise "did not exceed permissible bounds by
specifically connecting those behaviors to L.K."
(Emphasis added.) We agree it was proper for Dr. Salter to
discuss suggestibility and coaching in child sexual abuse
cases in general and opine she did not believe the
interviewer had done anything "inappropriate"
during L.K.'s interviews. However, Dr. Salter's
testimony crossed the line when she stated L.K. was not
"inappropriate" in the forensic interviews and
commented on the specific facts of this particular case. Her
statement that L.K. was not "inappropriate" during
his interviews was akin to saying the child did not appear to
be coached during the interviews, indicating to the jury Dr.
Salter's expert opinion L.K. was telling the truth about
the alleged abuse. Additionally, her statements
"[n]obody coaches SpongeBob" and "I've
never had a coaching case where the parent coached sensory
details like that to the child, " after L.K. testified
SpongeBob was on television and he could smell popcorn during
the alleged abuse, clearly crossed the line. Regardless of
whether the question posed by the State was general and the
witness answered specifically, the expert's testimony
before the jury indicated Dr. Salter believed L.K. was being
truthful and Tjernagel committed the accused acts. Further,
Dr. Salter's statements "why would a child just come
in and make up a story?"; "[a]ny kid that can come
into court and face this group of people"; and
"[w]e put eight year olds in that situation because we
have to, but I'm never surprised when we can't get
the whole story out of them because-because it's a very
intimidating place and they're trying their best to
remember, " implied L.K. was telling the truth about the
alleged abuse simply because he testified in front of the
jury at trial, and thus, the statements improperly vouched
for L.K.'s credibility.
State asserts "the subject of coaching was fair game
given the defense presented." We note that while the
"subject of coaching" may have been "fair
game" and testimony by the expert witnesses on coaching
and suggestibility may have been admissible, see
Dudley, 856 N.W.2d at 678, not all testimony relating to
the subject of coaching is admissible. An expert witness is
not entitled to opine that the child in this case was not
coached simply because the defendant argued coaching as a
theory of defense.
Tjernagel also challenges statements made by her expert
witness, forensic interviewer Bibbins, on cross-examination
by the State as vouching for L.K.'s credibility.
cross-examination, the State questioned Bibbins about
idiosyncratic details. Bibbins responded:
The research shows that when children are able to give just
kind of unique details about a narrative, that it's less
likely that it's coached. Most often if someone is
coaching someone, they're just going to give them the
basic facts. When children come up with just out of the
ordinary details about the event, it indicates that
there's less likely-less likely coaching has happened.
Q. And did some of those facts occur in this case?
Q. Was he able to give you some of those types of facts?
does not object to the initial portion of Bibbins's
answer, but she claims the follow-up questions, asking
whether L.K. was able to provide unique details in this
particular case, crossed the line into vouching territory.
The State then asked Bibbins:
Q. And so would it surprise you or be unusual in any way that
he would not give you all the information about his sexual
abuse that first time? A. The way that children disclose, the
literature-the literature talks about children disclosing
in-I'll say in bits and pieces. Sometimes they'll
disclose a little bit and then later on they maybe disclose
more. That may be because of memory or maybe they're just
kind of testing the waters to see what the reaction to their
disclosure is going to be.
contends Bibbins's response explains away any
inconsistencies between Bibbins's first and second
interviews with L.K. and vouches for his credibility.
Next, the State questioned Bibbins:
Q. So would it be something of concern if he told you that it
happened when he was about four years old and his dates might
A. For a child [L.K.]'s age, for both interviews it's
not unusual that he wouldn't have a good understanding of
time and would not necessarily be able to pinpoint dates and
time when things happened.
Q. Would it surprise you at all if he thought that he met and
spoke with you like two weeks apart? Like he met and spoke
with you and two weeks later he came back and spoke with you
again, when in fact it was months later?
A. It wouldn't be unusual that he would mislabel whatever
that time frame was.
claims Bibbins answered questions regarding specific facts
concerning L.K., conveying to the jury that L.K.'s
inconsistencies were not evidence of lying.
Bibbins was then asked by the State:
Q. Now, you also were told by [L.K.] that he thought his mom
went to a meeting? A. Correct.
Q. If it turned out that she was at a doctor's
appointment, would that bother you at all or be a red flag in
this case? A. It wouldn't be unusual that a child would
just call some kind of appointment a meeting.
asserts Bibbins's statements lend credence to L.K.'s
testimony and provide her opinion regarding whether L.K. was
credible because she stated there were no "red
flags" during his interviews.
Dudley, the supreme court held the forensic
interviewer's testimony that the child's
"statement was consistent throughout the entire
interview process" did not "cross the line"
because the expert "was merely stating the fact that
throughout the interview [the child victim] never changed her
story as to the events with [the defendant]." 856 N.W.2d
at 678. The court reasoned, "The jury is entitled to use
this information to determine the victim's credibility.
This information gives the jury an insight into the
victim's memory and knowledge of the facts."
State v. Huffman, No. 14-1143, 2015 WL 5278980, at
*6 (Iowa Ct. App. Sept. 10, 2015), our court held an expert
witness may testify regarding whether the particular children
in that case "used developmentally appropriate
language" because it "provided the jury some
perception about their knowledge of the facts" and did
"not vouch for the truthfulness of the statements"
but left "the question of credibility to the jury."
we do not find Bibbins's statements that young children
who are victims of sexual abuse do not disclose everything
about an incident at the first opportunity, that young
children are not accurate as to dates and time, or that it
would not be unusual for young children to refer to a
parent's "appointment" as a "meeting,
" cross the line. However, we do find Bibbins's
statement that L.K. was able to give "unique" or
"out of the ordinary details" crosses the line into
vouching for L.K.'s credibility because she previously
testified such "details about the event . . . indicate
that there's less likely-less likely coaching has
happened." While at first blush this testimony may seem
similar to that which was admissible in Huffman, we
note that expert testimony may be necessary to explain to the
jury what constitutes "developmentally appropriate
language" and whether a child used such language, while
an expert is not necessary to explain to a jury what
"unique" or "out of the ordinary details"
are. See Huffman, 2015 WL 5278980, at *6.
Tjernagel contends the State engaged in
L.K.'s testimony with Dr. Salter in violation of our
holding in State v. Pansegrau, 524 N.W.2d 207, 211
(Iowa Ct. App. 1994). In Pansegrau, our court
reversed the defendant's conviction and remanded for a
new trial holding, "The hypothetical question [posed to
the expert witness by the State on rebuttal] outlined all the
events the alleged victim had testified preceded the rape.
This personalized the opinion and conclusion. The court here
admitted testimony beyond the careful exception carved in
[State v. Gettier, 438 N.W.2d 1, 6 (Iowa
1989)]." 524 N.W.2d at 211 (noting, "In
[Gettier], the Iowa court found no abuse of
discretion when the trial court allowed testimony of a
psychologist . . . as to what she considered typical symptoms
exhibited by a person after being traumatized and no more. A
careful review of Gettier instructs that the Iowa
Court has carefully limited the admission of similar
testimony and set guide rules for the credentials of the
expert as well as limiting the testimony only to the reaction
In State v. Pitsenbarger, our court noted:
[T]he supreme court's ruling in Dudley clearly
reflects expert testimony that indirectly or implicitly
attempts to match up behaviors that are observed in known sex
abuse victims with the complainant's behaviors
constitutes vouching for the complainant's credibility.
856 N.W.2d at 677-78. We conclude the State crossed the line
in its direct examination of [the expert witness] and defense
counsel failed to object to the form of questioning.
No. 14-0060, 2015 WL 1815989, at *8 (Iowa Ct. App. Apr. 22,
not binding, we find our court's ruling in
Pitsenbarger instructive. As in
Pitsenbarger, the State in this case methodically
bolstered L.K.'s credibility by soliciting responses from
Dr. Salter conveying opinions regarding L.K.'s behaviors,
actions, and statements as being consistent with the
behaviors, actions, and statements of child victims of sexual
abuse in the "volumes of research" Dr. Salter had
reviewed and brought to trial with her. Based upon our review
of the record, we conclude the State crossed the line in its
direct examination of Dr. Salter.
we find statements made by Dr. Salter on direct examination
by the State and those made by Bibbins on cross-examination
by the State constituted improper vouching testimony, we
examine whether Tjernagel's trial counsel failed in an
essential duty. See Thorndike, 860 N.W.2d at 320.
determining whether an attorney failed in performance of an
essential duty, we avoid second-guessing reasonable trial
strategy." Everett v. State, 789 N.W.2d 151,
158 (Iowa 2010).
Our court noted in Pitsenbarger:
We . . . find no solace in the State filing its own motion in
limine contending no witness should speak upon the
credibility of another witness and then proceeding to present
testimony vouching for the credibility of [the child].
Equally unconvincing is the State's effort in direct
examination of [the expert witness] to establish that the
purpose of her testimony was to not "make conclusions
about what the child said or whether or not the abuse
occurred." An expert's own testimony that she is
"neutral" does not make it so. The same is true
concerning the question poised to the expert that the purpose
of the expert's testimony is not to invade the jury's
role-with a corresponding answer by the expert,
"correct." None of these efforts cleanse or
whitewash the improper vouching. We recognize the State's
desire to present expert testimony to support their
prosecution. However, our system of justice does not rely
upon the statistical probabilities of certain conduct absent
scientifically proven principles but rather relies upon the
jury to determine the credibility of witnesses to reach its
2015 WL 1815989, at *8.
to our court in Pitsenbarger, 2015 WL 1815989, at
*2, we cannot excuse trial counsel's failure to object to
the experts' testimony because the State filed a pretrial
motion in limine barring "[a]ny witnesses testifying
about the credibility of other witnesses" or the
following exchange between the State and Dr. Salter on direct
Q. I want to be clear about what the purpose of your
testimony is here today. Are you here today to tell the jury
whether or not this case-whether or not the sexual abuse
Q. Why not?
A. Well, that's not my job. First of all, no witness can
comment on the credibility of any other witness. That's
just the law. So I'm not being asked to comment on the
credibility of any witness today. And the ultimate issue of
whether the child was sexually abused or not isn't up to
me. That's the province of the jury to decide.
stated in Pitsenbarger, "An expert's own
testimony that she is 'neutral' does not make it
so." 2015 WL 1815989, at *8. We also find no solace in
the following exchange between the State and Bibbins on
Q. So making them promise to tell the truth. Giving them the
ability to correct you when they're wrong-or when
you're wrong when you state something. . . .
. . . .
Q. And now, you're not here to say whether or not this
Q. Okay. But did [L.K.] correct you-
Q. -in the interview? Did he promise to tell the truth?
A. Yes, he did.
"[n]one of these efforts cleanse or whitewash the
improper vouching" or counsel's failure to object.
Pitsenbarger, 2015 WL 1815989, at *8, *9.
Furthermore, on the record in this case we find there can be
no reasonable trial strategy for failing to object to the
improper vouching testimony presented by the State in this
case. See id. at *9.
we conclude Tjernagel's trial counsel failed to perform
an essential duty when he failed to object to testimony given
by Dr. Salter and Bibbins indirectly vouching for L.K.'s
credibility and truthfulness.
turn to whether prejudice resulted from trial counsel's
failure to perform an essential duty. Prejudice is the
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
to Brown and Pitsenbarger, the State's
case in this action rested entirely on the credibility of the
witnesses. See Brown, 856 N.W.2d at 689;
Pitsenbarger, 2015 WL 1815989, at *7. There was no
physical evidence of the alleged abuse and no witnesses other
than the complaining witness, L.K. See Pitsenbarger,
2015 WL 1815989, at *7. Furthermore, the expert
witnesses' vouching testimony here "was
pervasive-not just a single statement." Id. at
*10. As our supreme court noted in Brown,
"[t]he expert witness's statement put a stamp of
scientific certainty on [the child victim]'s testimony. A
jury uses this type of expert testimony to bolster the
victim's testimony and tip the scales against the
defendant." 856 N.W.2d at 689.
in Jaquez, the court found the defendant was
prejudiced by the admission of the improper vouching
testimony in part because the State had "emphasized this
wrongly admitted testimony in [its] presentation to the
jury." 856 N.W.2d at 666; see also
Pitsenbarger, 2015 WL 1815989, at *10. Tjernagel's
brief argues each example of vouching as having been
referenced during the State's closing or rebuttal
arguments to the jury. On our review of those arguments, the
references complained of were largely subtle and could have
been mostly references to admissible testimony. Nonetheless,
we conclude the numerous examples of vouching identified
above were pervasive and laid the groundwork for the
State's emphasis on the credibility and believability of
L.K. during closing arguments.
conclude Tjernagel has shown that but for counsel's
unprofessional errors in failing to object to the vouching
testimony, "the probability of a different result is
'sufficient to undermine [our] confidence in the
outcome'" of the proceedings. State v.
Graves, 668 N.W.2d 860, 882 (Iowa 2003) (quoting
Strickland, 466 U.S. at 694). We reverse the
conviction and remand for new trial based on statements made
by the expert witnesses vouching for L.K.'s credibility
contends trial counsel rendered ineffective assistance by
failing to object to Dr. Salter's use of statistics at
well-established in Iowa that expert witnesses are prohibited
from providing statistics suggesting children do not lie
about sexual abuse. Myers, 382 N.W.2d at 97; see
also State v. Tracy, 482 N.W.2d 675, 678 (Iowa 1992). In
Pitsenbarger, our court held the expert
witness's statement "that only five percent of
children lie about sexual abuse and then usually only after
coaching by an adult constitutes indirect vouching for [the
child]'s credibility." 2015 WL 1815989, at *7.
Dr. Salter cited statistics about how likely and at what age
children who are victims of sexual abuse disclose the abuse.
Her use of statistics at trial and comments that "most
disclosures" or "most children do not tell right
away" were not comments on whether children lie about
sexual abuse, but rather, comments about when children
typically disclose sexual abuse. Dr. Salter's testimony
in this regard did not cross the line and bolster L.K.'s
credibility. We find Tjernagel's trial counsel did not
render ineffective assistance in failing to object to Dr.
Salter's use of statistics regarding disclosure at trial.
claims her trial counsel provided ineffective assistance by
failing to object to Dr. Salter's testimony
"profiling" her as a sex offender.
State v. Hulbert, 481 N.W.2d 329, 333 (Iowa 1992),
the supreme court held the district court did not abuse its
discretion in excluding an expert witness's proposed
testimony that the defendant did not fit the profile of a sex
offender because it resembled an "expert opinion on the
ultimate question of guilt or innocence" and would not
have aided the jury.
although Dr. Salter testified women can certainly be sex
offenders, she specifically testified "there's no
profile of either female or male sex offenders." Dr.
Salter also provided examples of cases she had worked on over
the years in which offenders used various methods, including
grooming, to continue to sexually abuse children. She did so
not to show Tjernagel fit any kind of mold as a sex offender
but rather to show there is no mold. We conclude
Tjernagel's trial counsel did not provide ineffective
assistance in failing to object to Dr. Salter's testimony
about grooming and other behaviors or actions by known sex
asserts her trial counsel rendered ineffective assistance by
failing to object to testimony by Dr. Salter and Bibbins that
was in the common knowledge of the jurors. Tjernagel contends
Dr. Salter improperly testified about several topics that
were within the common knowledge of the jury, including a
child's capacity for details, a child's concept of
time, parental responses to allegations of child sexual
abuse, and parental discussions of allegations of abuse with
the child. She also claims Bibbins improperly testified about
topics within the common knowledge of the jury, including
parents escorting their children to forensic interviews and
children using age-appropriate language. She argues the
expert witnesses' testimony on these topics invaded the
province of the jury as the trier of fact.
Rule of Evidence 5.702 provides experts are permitted to
testify "in the form of an opinion or otherwise"
when "scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue." Expert
testimony is admissible in cases involving child sexual abuse
if it will "assist the jury in understanding some of the
seemingly unusual behavior child victims tend to
display." Dudley, 856 N.W.2d at 675.
on our review of the record, we find the expert
witnesses' testimony in this case may have assisted the
jury in "understand[ing] the evidence or determin[ing] a
fact in issue." See Iowa R. Evid. 5.702. Thus,
we cannot find trial counsel was ineffective in failing to
object to the challenged testimony.
reverse Tjernagel's conviction and remand for new trial
based on her claim trial counsel was ineffective in failing
to object to expert witness testimony vouching for L.K.'s
credibility. We do not find trial counsel rendered
ineffective assistance in failing to object to the expert
witnesses' testimony based on claims the experts used
statistics at trial, profiled Tjernagel as a sex offender, or
testified about topics within the common knowledge of the
jurors. We do not reach Tjernagel's other claims.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2017).