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Bitzan v. State

Court of Appeals of Iowa

January 10, 2018

MARK ALLAN BITZAN, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Monona County, Duane E. Hoffmeyer, Judge.

         Mark Bitzan appeals the denial of his application for postconviction relief. AFFIRMED.

          James P. McGuire of McGuire Law, P.L.C., Mason City, for appellant.

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

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          VAITHESWARAN, Presiding Judge.

         A college student on her way home for winter break stopped at a rest area in Monona County, Iowa. A man in the women's restroom accosted her, forcibly moved her to the handicapped stall, threatened her with a pocket knife, and raped her.

         A jury found Mark Bitzan guilty of first-degree kidnapping.[1] This court affirmed his judgment and sentence of life in prison. See State v. Bitzan, No. 12-0551, 2013 WL 3273813, at *5 (Iowa Ct. App. June 26, 2013). Bitzan filed an application for postconviction relief (PCR) alleging his trial attorneys provided ineffective assistance. The district court denied the application following an evidentiary hearing. Bitzan appealed.

         I. Ineffective Assistance of Counsel

         Bitzan contends his trial attorneys were ineffective in failing to (A) object to a nurse's testimony vouching for the credibility of the student; (B) investigate the case and interview witnesses; (C) advise him of the consequences of his decision not to testify and prepare him to testify; (D) object to or investigate DNA evidence; (E) consult an expert about false allegations of rape; (F) object to alleged prosecutorial misconduct; (G) consult an expert about a vaginal tear sustained by the student; (H) impeach the student and explicate his defense of consensual sex; (I) challenge particular jurors for cause or exercise peremptory strikes; and (J) object to testimony about another assault. To prevail, he must show (1) counsel breached an essential duty and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

         A. Vouching Testimony

         The following evidence is relevant to the vouching claim. After the student was raped, she drove to a hospital, where she was examined by an emergency room nurse with twenty-five years of experience. The defense called the registered nurse as a witness to controvert the student's account of having to stop at the rest area to address stomach issues. On cross-examination, the prosecutor asked the nurse whether the student's demeanor was "consistent with" what she had seen in other women who said they were sexually assaulted. Defense counsel objected on relevancy grounds and on the ground the question was outside the scope of direct examination. The district court overruled the objection and the prosecutor proceeded with the following exchange:

Q. Was there anything about the way she appeared that gave you cause to doubt what she was telling you?

A. No.

. . . .
Q. Did she present in your hospital asking to be treated for a stomach ailment or because she had been sexually assaulted?

A. She presented because she had been sexually assaulted.

Q. I believe it's your testimony that nothing she did made you doubt that, correct?

...


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