from the Iowa District Court for Webster County, Thomas J.
Simpson appeals the denial of his postconviction relief
application. REVERSED AND REMANDED.
Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown
& Bergmann L.L.P., Des Moines, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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).
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.
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."
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.
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.
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.
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."
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.
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
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.
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
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."
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."
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, " ...