from the Iowa District Court for Fremont County, Susan L.
defendant appeals his convictions for second-degree sexual
abuse and lascivious acts with a child.
C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Tabor, J., and Scott, S.J.
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
Background Facts and Proceedings.
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.
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.
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.
Sufficiency of the Evidence.
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.
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 ...