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State v. Simonich

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
SHAUN SIMONICH, Defendant-Appellant.

         Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.

         Defendant appeals his convictions for sexual abuse in the second degree and incest. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

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

          Considered by Danilson, C.J., McDonald, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Appellant 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 judgment.

         I. Procedural Background.

         On 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 November 7.

         II. Factual Background.

         L.S., 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.

         L.S.'s 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.

         According 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 butt."

         Officers 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 this field."

         At the 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.

         III. Discussion.

         A. Whether the State Presented Substantial Evidence Establishing that Simonich Sexually Abused L.S.

         i. Standard of Review.

         This 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).

         In 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 1984)).

         Evidence 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).

         ii. Merits.

         In this 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 the following:
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 ...

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