from the Iowa District Court for Lucas County, Gary G. Kimes,
defendant appeals from his convictions for sexual abuse in
the third degree and incest.
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Gillson appeals from his convictions, following a bench
trial, for sexual abuse in the third degree and incest.
Gillson maintains he received ineffective assistance from
trial counsel. Specifically, he claims counsel was
ineffective for failing to object to the vouching testimony
of three separate witnesses-the investigating officer, the
forensic interviewer, and the complaining child's
review claims of ineffective assistance de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). "To
establish his claim of ineffective assistance of counsel,
[Gillson] must demonstrate (1) his trial counsel failed to
perform an essential duty, and (2) this failure resulted in
prejudice." Id. (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). To prove
counsel failed to perform an essential duty, he must show
"counsel's representation fell below an objective
standard of reasonableness . . . under prevailing
professional norms." Strickland, 466 U.S. at
688. To establish prejudice, Gillson must demonstrate
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at
694. "The probability of a different result must be
'sufficient to undermine confidence in the
outcome.'" Afinson v. State, 758 N.W.2d
496, 499 (Iowa 2008) (citation omitted). Where, as here, the
defendant makes multiple claims, we "look to the
cumulative effect of counsel's errors to determine
whether the defendant satisfied the prejudice prong of the
Strickland test." Clay, 824 N.W.2d at 500.
courts "are generally committed to a liberal rule which
allows opinion testimony if it will aid the jury in screening
the properly admitted evidence to ascertain the truth."
State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986).
However, this liberal rule does not extend to opinion
testimony that vouches for or bolsters the credibility of
another witness. See, e.g., State v.
Dudley, 856 N.W.2d 668, 676 (Iowa 2014) ("We see no
reason to overturn this well-settled Iowa law prohibiting an
expert witness from commenting on the credibility of a victim
in a criminal sex abuse proceeding."); see also
Iowa R. Evid. 5.701 (limiting the opinion testimony of a lay
witness). "Our system of justice vests the [factfinder]
with the function of evaluating a witness's
credibility." Dudley, 856 N.W.2d at 677 (citing
State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992)).
"[V]eracity is not a 'fact in issue' subject to
expert opinion." Hulbert, 481 N.W.2d at 332.
Gillson focuses on the testimony of three
witnesses whom he claims were allowed to vouch for
the credibility of the complaining witness:
Sheriff Brian Kennedy testified about his investigation of
the charges. He stated that he watched a video of the
complaining witness being interviewed by forensic
interviewer, Tammera Bibbins. At trial, the following
exchange occurred between the prosecutor and Deputy Kennedy:
Q. In reviewing the tape as a whole and the statements of
[Z.G.] in response to questions by Tammera Bibbins did you
form an opinion with respect to whether or not [Z.G.] was the
victim of criminal acts?
A. Yes, I did.
Q. Pardon me?
A. I said yes, I did, and I believe she was the victim of a
sexual assault involving [Gillson] as the perpetrator.
Q: And the crime of incest as well?
Q. And did you continue then to ...