from the Iowa District Court for Monona County, Duane E.
Bitzan appeals the denial of his application for
postconviction relief. AFFIRMED.
P. McGuire of McGuire Law, P.L.C., Mason City, for appellant.
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.
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.
found Mark Bitzan guilty of first-degree
kidnapping. 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.
Ineffective Assistance of Counsel
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).
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?
. . . .
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?