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Simpson v. State

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.

         Christopher Simpson appeals the denial of his postconviction relief application. REVERSED AND REMANDED.

          R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.


         A jury found Christopher Simpson guilty of four counts of third-degree sexual abuse in connection with acts he committed on two boys, ages fourteen and fifteen. This court affirmed his judgment and sentences, which, with enhancements, resulted in four life terms. State v. Simpson, No. 10-1554, 2011 WL 3117888, at *3 (Iowa Ct. App. July 27, 2011).

         Simpson filed a postconviction relief application. The district court denied the application following an evidentiary hearing. On appeal, Simpson contends his attorneys were ineffective in failing to: (1) object to expert testimony arguably vouching for the teens' credibility and the State's comments about the expert during closing argument; (2) challenge the prosecutor's questioning about a witness' invocation of his Fifth Amendment right against self-incrimination; (3) seek a jury instruction on assault with intent to commit sexual abuse as a lesser included offense; and (4) challenge the admission of an un-redacted text message that implied he had a criminal record. We find the first issue dispositive.

         I. Vouching

         Simpson contends an expert witness called by the State impermissibly vouched for the credibility of the teens who testified against him. He specifically argues the State, through its expert, "engaged in point-by-point reinforcing of [one victim's] prior testimony, as well as foreshadowing [the other victim's] anticipated future testimony" and his "trial lawyer failed to object to the continuous and cumulative inadmissible testimony as it happened, and then failed to object as the State, during closing, brought home to the jury the vouching power of its expert witness to compel a guilty verdict."

         Simpson's postconviction attorney raised the issue at the postconviction hearing and in a post-hearing brief. The postconviction court characterized the "general gist of" Simpson's claims as "ineffective assistance of counsel, " including a claim "that trial counsel failed to object to the State's closing arguments suggesting that 'grooming' had been done of the victims for sexual purposes." The court summarily rejected the issue after concluding Simpson "had a full and fair opportunity to cross-examine" the expert and the State's closing argument did not suggest Simpson committed "prior bad acts." We conclude Simpson preserved error on his claim that trial counsel was ineffective in failing to object to expert testimony vouching for the credibility of the complaining witnesses and in failing to object to that portion of the prosecutor's closing argument addressing the expert testimony. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) ("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." (citing Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002))). But, even assuming the only issue preserved is Simpson's ineffective assistance claim relating to the prosecutor's closing comments about the expert testimony, that issue cannot be addressed without first examining the expert testimony. Accordingly, we begin our discussion of this issue with the pertinent facts and proceedings.

         The State listed an expert witness to testify to perpetrators' sexual grooming behaviors and efforts to desensitize victims. Simpson filed a motion in limine seeking to exclude the expert testimony in its entirety. The district court denied the motion.

         At trial, the State called Lana Herteen to testify to "child sexual abuse dynamics." Simpson objected to the "line of questioning." The district court reaffirmed its prior ruling.

         The prosecutor asked Herteen about delayed disclosure of sex abuse by teens. She cited statistics finding "about 86 percent of adolescents who have been sexually abused do not tell right away, if ever, though that has to be couched in the ones that they can confirm."

         The prosecutor proceeded to question Herteen about "grooming, " which she defined as "a gradual sexualizing of the relationship between an adult" and a child. She also questioned Herteen about "sexualization" of victims. In the course of this questioning, the prosecutor asked Herteen about "hypothetical" facts that focused on "teenagers specifically" and "male teenagers specifically." These facts mirrored the narratives of the two boys.

         For example, the teens testified to an incident at Simpson's pool in which Simpson "pulled down [one of the teen's] swimming trunks and threw them out of the pool." The prosecutor asked Herteen to address a hypothetical set of facts that included "depantsing":

Q. All right. Say, hypothetically speaking, depantsing somebody in a swimming pool, if that's done by an adult and that's the only thing that happens, it's a joke and whatever, that can be viewed one way; but if it's followed by more sexualization, could it be pretty much the beginning of the grooming?
A. It could be.

         The teens also testified that Simpson showed them websites with sexual content, as well as pornographic DVDs. The prosecutor pursued this testimony with Herteen, asking her to provide other examples of types of "sexualization" activity. Herteen responded:

[I]t can begin with like watching R-rated movies . . . [with] lighter sexual themes. It might then progress to some talk or discussion about sex and sexuality. And then it may progress to exposure to pornography. . . . It can be photographs; it can be something that's on the computer; it can be videos.

         In the same vein, the teens testified about a video they were shown involving sexual activity by Simpson's roommate. The prosecutor pursued these facts with Herteen as follows:

Q. Hypothetically speaking, say a teenager is shown a video of other children, pornography, child pornography, basically, if that person that is seeing it knows one of the people in that video, can that make it seem even more normal to the person? Does that make sense?
A. Yes. I would say whether they know them or not, there might be an increased value if they did know them because there can be that sense of "Well, this person did this or that and, therefore, that is something that can be done, um, something that can go on or occur."

         The teens testified Simpson sat down with the boys as they watched pornographic videos and he touched himself. The prosecutor proceeded to a question about masturbation, asking, "[H]ypothetically, if an adult male was to walk in while . . . a teenager was masturbating, " would a healthy response be to "sit down and join in?" Herteen replied, "Absolutely not."

         The teens testified Simpson offered them memberships for an online game in exchange for oral sex. Herteen discussed children's "tendency to . . . focus on the positive aspects of the relationship, " ...

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