from the Iowa District Court for Scott County, Henry W.
Latham II, Judge.
appeals from the denial of his application for postconviction
J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for
J. Miller, Attorney General, and Kristin Guddall (until
withdrawal) and Kevin Cmelik, Assistant Attorneys General,
for appellee State.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
appeal arises from a postconviction-relief proceeding in
which Victor Pelletier challenged his conviction for sexual
abuse in the third degree. The offense conduct was set forth
in our opinion resolving Pelletier's direct appeal:
Pelletier was charged with sexual abuse based on allegations
he put his mouth on the penis of C.H., the twelve-year-old
neighbor he was babysitting while C.H.'s mother was away
overnight. Another neighbor, Doug Peiffer, testified he was
at home around 5:30 a.m. on a cold winter morning when he
heard C.H. pounding on the door while screaming,
"He's raping me. He's raping me." When Doug
opened the door, a hysterical C.H. darted into the house.
C.H. was carrying his coat and shoes and wearing one sock.
Doug called the victim's mother, who called the police.
Officer Thompson arrived, talked with C.H., and testified to
C.H.'s demeanor-being in shock.
Kathleen Wiseman, Doug's mother, testified she was
sleeping and was awakened by C.H. banging on the door.
Further, C.H. "came running in and crying, 'That man
raped me. That man raped me.'"
Later that morning, Officer Crouch interviewed Pelletier at
the police station. Officer Crouch testified Pelletier stated
he and C.H. were on the couch underneath a blanket watching a
movie and they both fell asleep. Pelletier denied abusing
C.H., and he asserted the incident was C.H.'s dream or
C.H. was just out to get him. Further:
Mr. Pelletier stated . . . he woke up . . . got up to go to
the bathroom, went to the bathroom, got a cigarette, came
back to the living room to where the couch was located,
[C.H.] was gone.
. . . .
C.H. testified to the events at issue. Pelletier watched a
movie with him, and they sat together on the couch. When C.H.
fell asleep on the couch, Pelletier was in another room with
his girlfriend, Heather Anderson. C.H. awoke to Pelletier
lifting up the blanket and "trying to cuddle" with
him. C.H. "just immediately froze" and Pelletier
pulled down C.H.'s pants and underwear. After Pelletier
sucked on C.H.'s penis, Pelletier stood up and walked
into the bathroom. C.H. pulled up his underwear and pants and
ran to the closest neighbor's house-Doug Peiffer's
house. C.H. pounded on the door and "I told him the
babysitter raped me."
A DNA expert, Kristin Evans, testified the enzyme amylase
is found in saliva as well as in minute amounts in other
bodily fluids. She analyzed the physical evidence and
detected a strong presence of amylase on the inside of the
back of C.H.'s underwear. The substance contained a
mixture of DNA from two different sources. Assuming C.H. as
one source, the remaining and major contributor of genetic
material was consistent with the DNA profile of Pelletier.
Because this profile was incomplete, Evans did not testify
to a "match." However, she testified the
likelihood another person would have the same genetic
profile discovered on the inside of C.H.'s underwear
and consistent with Pelletier's DNA profile was 1 in
470 million. Evans stated: "When it is on the inside
of the victim's clothing, then yes, it is
probative." A slightly elevated level of amylase was
also found on the fly and crotch of C.H.'s jeans, but a
profile could not be developed.
Anderson, Pelletier's girlfriend, testified she awoke
during the night and saw Pelletier and C.H. ...