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State v. Kissel

Court of Appeals of Iowa

November 22, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ROGER CRAIG KISSEL, Defendant-Appellant.

         Appeal from the Iowa District Court for Fremont County, Susan L. Christensen, Judge.

         A defendant appeals his convictions for second-degree sexual abuse and lascivious acts with a child. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Tabor, J., and Scott, S.J. [*]

          SCOTT, Senior Judge.

         Following a jury trial, Roger Kissel appeals his convictions for one count of sexual abuse in the second degree and two counts of lascivious acts with a child. See Iowa Code §§ 709.1(3), 709.3(1)(b), 709.8(1), 709.8(2)(a) (2013). He claims his convictions are not supported by sufficient evidence because the child's and the mother's testimony are inconsistent. He asserts his Sixth Amendment right to confrontation was violated when the court permitted the State to introduce the video of the child's forensic interview, and he claims his counsel provided ineffective assistance by failing to request a limiting instruction related to that video. Finally, he claims his counsel was ineffective in failing to object to the court giving the jury an instruction regarding the use of his out-of-court statements that violated his right against self-incrimination.

         I. Background Facts and Proceedings.

         The child and her parents moved into the house Kissel shared with his wife in May 2013, just before child turned five years old. Kissel is the stepfather to the child's stepdad, and the child referred to Kissel as her grandpa. In early July 2013, the child told her mother that Kissel touched her private parts. The child also told the same thing to the mother's friend the next day. After that time, the mother took steps to ensure the child was never left alone with Kissel, and the child reported the touching stopped after she told her mother.

         The mother, stepfather, and child moved out of Kissel's home in September 2013. Shortly after, the mother reported the child's statements to law enforcement. The child was taken to Project Harmony and was interviewed by one of the facility's forensic interviewers. The child disclosed during the interview that Kissel would lick her "private parts" and that she licked his "private." She also described spanking Kissel with a wooden spoon with his pants down and Kissel spanking her.

         Charges were filed against Kissel, and the matter proceeded to trial in March 2016. Both the child and the child's mother testified, as did the Project Harmony interviewer, the medical examiner, the investigating officer, and the mother's friend who heard the child disclose the abuse. The jury was also shown the video of the child's interview at Project Harmony. In his defense, Kissel and his wife testified, along with a family friend. The jury found Kissel guilty as charged. On the sexual-abuse conviction, the court sentenced Kissel to twenty-five years in prison, with a seventy-percent mandatory minimum, and on each lascivious-act conviction, Kissel was sentenced to ten years in prison. The sentences were ordered to run concurrently. Kissel now appeals his convictions.

         II. Sufficiency of the Evidence.

         Kissel asserts the child's testimony offered against him is "riddled with inconsistencies." In addition, he asserts the mother's actions "severely undercut" her testimony that she believed the child had been sexually abused. He notes the mother remained in the home with the child for another two months after the child disclosed the abuse to her before the mother reported the abuse to police, and he claims the mother took no steps to protect the child from contact with him.

         Kissel's challenge to the sufficiency of the evidence is reviewed for the correction of errors at law. See State v. Huser, 894 N.W.2d 472, 490 ...


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