from the Iowa District Court for Black Hawk County, Joel A.
appeals his convictions for sexual abuse in the second degree
and incest. AFFIRMED.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., McDonald, J., and Blane, S.J.
Shaun Simonich appeals his convictions and judgment following
a bench trial and verdict finding him guilty of sexual abuse
in the second degree, a class "B" felony, in
violation of Iowa Code section 709.3 (2015); and incest, a
class "D" felony, in violation of Iowa Code section
726.2. On appeal he asserts the verdicts are not supported by
substantial evidence and his trial counsel was ineffective in
numerous ways, including failing to file a motion for new
trial challenging the trial court's findings as to
credibility and DNA evidence, failing to object to claimed
vouching testimony of two witnesses, and failing to object to
the trial judge's questioning of two witnesses. Simonich
asserts there was cumulative error. For reasons discussed
below, we find sufficient evidence supports the guilty
verdicts, defense counsel was not ineffective, and there was
not cumulative error. We therefore affirm the convictions and
March 10, 2015, the State charged Simonich with sexual abuse
in the second degree and incest. Simonich was arraigned and
entered a plea of not guilty. On June 24, 2016, Simonich
filed a written waiver of his right to a jury trial. After
confirming the waiver of a jury on the record, the court held
a bench trial on July 6 and 7. The matter was submitted to
the district court for ruling. On September 6, the district
court issued written findings of fact and verdicts finding
Simonich guilty as charged. The court sentenced Simonich on
October 31. Simonich timely filed a notice of appeal on
the son of Simonich, was born in January of 2005. On February
16, 2015, L.S. was at home, where he lived with his mother
and Simonich. L.S. came into the living room to talk to his
father. Simonich was sitting in a rocking chair. After
talking, Simonich pulled down his own pants and then pulled
down L.S.'s pants, picked L.S. up and placed him on his
lap, with L.S. facing away from Simonich. Simonich's
hands were on L.S.'s waist and he moved L.S. onto his
penis, which he inserted approximately three inches into
L.S.'s anus, hurting L.S. L.S. testified Simonich did not
touch his (L.S.'s) penis or move other than to put L.S.
on Simonich's penis. According to L.S., the incident
lasted approximately fifteen minutes before his mother walked
into the room and saw them.
mother, Carol, had been in the home office. She walked into
the living room and saw Simonich with L.S. on his lap. She
testified that Simonich had been drinking heavily and
refusing to take his medications for several days. She
observed Simonich and L.S. had their pants pulled down and
they appeared to be "having sex." L.S. was sitting
"on top of Shaun with his back facing towards Shaun. And
then he [Simonich] was moving in a motion like a sexual
motion." Carol was shocked and asked what was happening;
Simonich said he was "fucking his son." Simonich
then asked his wife if she "wanted to suck his dick
too." Carol walked outside and called the police to
report that her husband was molesting their son.
to L.S., his mother walked outside to call the police and
Simonich pushed L.S. off of his lap, pulled up his own pants,
and followed her outside. Police officers arrived quickly
afterward. When L.S. initially spoke with an officer, he was
"very scared so I kind of really didn't answer. But
the second time I got calmed down and then I told him."
L.S. was afraid that "[his] dad was going to get in
trouble." Later, when the officer spoke to L.S. again,
L.S. told him that "my dad put his penis into my
collected the clothing worn by Simonich and L.S. that day and
arranged an interview, physical exam, and a sexual assault
kit for L.S. at the Child Protection Center (CPC) that
evening. The CPC forensic interviewer, Katie Strub, testified
L.S. was unemotional and did not offer information to her
unless she asked, but when asked, he answered her questions.
She also testified L.S.'s demeanor during the interview
was "consistent with [her] knowledge and experience in
CPC, a nurse practitioner, Julie Ritland, physically examined
L.S. and completed the sexual assault kit by swabbing L.S.
for DNA testing. At trial, Ritland could not remember how
many swabs she did, but she probably swabbed between
L.S.'s legs, around his anus, and a small amount in the
anus based on the allegations. Contrary to procedure, two
swabs were both placed in the same sleeve, allowing for
possible cross-contamination. Police swabbed Simonich's
penis and obtained a buccal swab from Simonich for DNA
testing. DNA analysis revealed that a profile matching
Simonich's was detected on either L.S.'s inner thigh
or on the outside of L.S.'s anus. Simonich's genetic
profile was also discovered on his son's underwear. In
both instances, the likelihood of another person matching
Simonich's DNA profile was determined to be less than 1
in 100 billion.
Whether the State Presented Substantial Evidence Establishing
that Simonich Sexually Abused L.S.
Standard of Review.
court reviews sufficiency-of-the-evidence challenges for the
correction of errors at law. State v. Meyers, 799
N.W.2d 132, 138 (Iowa 2011). We review a district court's
findings following a bench trial as we would a jury verdict.
State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). A
district court's finding of guilt is binding on the
appellate court unless we determine the record lacked
substantial evidence to support the finding of guilt.
State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).
evaluating challenges to the sufficiency of the evidence, we
review the record in a light most favorable to the State; the
court makes any legitimate inferences and presumptions that
may fairly and reasonably be deduced from the evidence in the
record. State v. Webb, 648 N.W.2d 72, 76 (Iowa
2002). The test for whether the evidence is sufficient to
withstand appellate scrutiny involves an inquiry as to
whether the evidence is "substantial." State v.
Astello, 602 N.W.2d 190, 197 (Iowa Ct. App. 1999).
"Substantial evidence does not, however, denote some
elevated quantity of proof." Id. The findings
of the factfinder are to be broadly and liberally construed,
rather than narrowly, and in cases of ambiguity, they will be
construed to uphold, rather than defeat, the verdict.
State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). It
is necessary to consider all the evidence in the record and
not just the evidence supporting the verdict to determine
whether there is substantial evidence to support the charge.
State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984)
(quoting State v. Blair, 347 N.W.2d 416, 419 (Iowa
meets the threshold criterion of substantiality if it would
convince a rational factfinder that the defendant is guilty
beyond a reasonable doubt. State v. Jorgensen, 758
N.W.2d 830, 834 (Iowa 2008). "The [factfinder] is free
to believe or disbelieve any testimony as it chooses and to
give weight to the evidence as in its judgment such evidence
should receive." State v. Thornton, 498 N.W.2d
670, 673 (Iowa 1993).
case, the only element in dispute at trial for either offense
was whether a sex act occurred. A person who performs a sex
act with a child under twelve years of age commits
second-degree sexual abuse. Iowa Code § 709.3(1)(b). A
person who commits a sex act with another known to be a
"person, either legitimately or illegitimately, as [a]
descendant . . ., commits incest. Incest is a class
'D' felony." Iowa Code § 726.2. A "sex
act" is defined as
[A]ny sexual contact between two or more persons by any of
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact
between the genitalia of one person and the genitalia or anus
of another person.
3. Contact between the finger or hand of one person and the
genitalia or anus of another person, except in the course of