from the Iowa District Court for Lyon County, Patrick M.
VanDekieft appeals his conviction of sexual abuse in the
C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ. Carr,
S.J., takes no part.
VanDekieft appeals his conviction of sexual abuse in
the second degree for his actions with his stepdaughter, C.L.
He asserts the district court abused its discretion in
allowing testimony from the expert witness, it erred in
allowing hearsay from his wife Tari VanDekieft, and the
prosecutor committed misconduct in his statements, all of
which inappropriately supported the credibility of C.L. He
also asserts his counsel was ineffective for failing to
object to a jury instruction that allowed the jury to use his
out-of-court statements as if they had been made at trial. We
find he did not preserve error on his objection to the expert
witness, and, even if he had preserved error, the expert did
not comment on C.L.'s credibility. We also find the
district court improperly admitted hearsay, but the
inadmissible hearsay did not prejudice Perry's
substantial rights. Additionally, we find he did not preserve
error on his claim of prosecutorial misconduct, and, even if
he had preserved error, the prosecutor's statements do
not rise to the level of misconduct. Finally, we find
Perry's counsel was not ineffective because the jury
instruction correctly states the law, and, even if we were to
find it misstates the law, no prejudice resulted.
Accordingly, we affirm.
Background Facts and Proceedings
and Tari VanDekieft married in September 2009. She called him
her "best friend, " and he considered her the same.
In August 2014, the couple moved into a home in rural Inwood
located in the salvage yard where they worked. The couple
lived in the home with their children, including A.V., their
daughter who was born during the marriage, and C.L.,
Tari's daughter from a previous marriage who was born in
2004. Perry is C.L.'s stepfather.
Inwood home, C.L. shared a bedroom with A.V., who was about
eight years younger than C.L. For about the first year they
lived in the home, the girls slept in bunk beds. C.L slept in
the top bunk, and A.V. slept in the bottom bunk where she
would have had difficulty seeing into the top bunk. In the
summer of 2015, the girls moved from the bunk beds into
separate beds on the floor. During this time, A.V. usually
went to bed around 8:00 or 9:00 p.m. C.L. set her own
bedtime, which was usually around 10:00 or 10:30 p.m. but
occasionally as late as midnight.
in the fall of 2014, C.L.'s bedtime routine included
Perry tucking her into bed. Tari stayed out of the girls'
bedroom during the bedtime routine because Tari wanted C.L.
and Perry to be able to talk openly. Perry spent anywhere
from five to forty-five minutes in the girls' bedroom
during the routine each night. According to Tari, the
forty-five-minute sessions occurred "pretty regularly,
" about a couple of times per week.
in 2015, Perry took C.L. into town to purchase tampons for
her. According to Perry's testimony, C.L mentioned during
the trip that tampons hurt, and Perry told her "a guy is
bigger than a tampon, and to my knowledge sex doesn't
hurt." Tari testified that in the spring of 2016, Perry
said C.L. had asked him about sex and offered to show C.L.
"soft porn" images. Perry acknowledged he offered
to show C.L. something after she asked about sex but
"hadn't found it yet, " and he denied wanting
to show her pornographic images.
afternoon of Sunday, July 31, 2016, Perry and Tari were
working outside while C.L. washed dishes alone inside the
house. At one point, Perry went into the house to refill his
coffee cup. Shortly thereafter, Tari also went inside to grab
a tool. When Tari stepped inside, she saw C.L. standing at
the sink with Perry standing right behind her and their backs
turned to Tari. Perry was surrounding C.L. with his arms and
kissing her on the back of her neck. According to Perry's
testimony, C.L. felt bad about her recent haircut at the
time, so he hugged and kissed her from behind and told her,
"I love you. I think you're pretty." He
testified he only wanted her to feel good about herself, and
he denied wanting any sexual benefit from her. Tari testified
that when Perry heard her shut the front door, he jumped back
seemingly startled, went to the coffee counter, and then went
outside without saying anything.
talked to C.L. about the encounter that afternoon, but she
never talked to Perry about it. Suspicious as to what she had
observed, Tari began paying more attention to Perry's
interactions with C.L. The next evening, on Monday, August 1,
2016, Perry took C.L into the girls' bedroom to tuck her
into bed as usual. Tari soon noticed C.L. had not finished
her chores, and she went to the girls' bedroom to tell
her. From the doorway to the girls' bedroom, Tari saw
C.L. lying in her bed and playing with her phone. Perry was
also lying in her bed with his back to the doorway, his feet
dangling off the bed near C.L.'s head, and his face next
to her hip. Tari testified Perry was using his hand to rub
C.L. over her clothes on her hip and on the front of her
thigh in a "suggestive" and
did not talk to Perry about what she saw that Monday night,
but she tried to keep Perry from being alone with C.L. until
C.L.'s regular counseling appointment on Thursday. At the
Thursday counseling appointment, Tari asked C.L. about the
Monday night incident and if anything else had happened.
trial, C.L. testified about her interactions with Perry. The
touching events usually occurred at night. He typically used
his hand to touch her on her legs, thighs, and butt while he
called her terms like "sexy" and
"pretty." He touched her over her clothes and on
her bare skin, occasionally pulling her underpants down to
her knees. On the night of Monday, August 1, 2016, he rubbed
and kissed her legs and told her she was "sexy" and
"pretty" while he laid with her in her bed. He
first touched her when she was in second or third grade, at
which time he rubbed her legs and said "you don't
have to sleep with your clothes on. You can sleep [naked]
like I do." He touched her more frequently at night by
2014, and he touched her almost every night by 2016. One
night around March 2016, he entered her room, pulled down her
pants, kissed and rubbed her bare butt, and rubbed the
outside of her bare vagina with two fingers. A couple of
years earlier, when C.L. was in fifth grade, Perry rubbed her
breasts over her clothes and commented on how they were
Thursday, August 4, 2016, after the counseling appointment,
Tari told Perry via text she was taking the children and
leaving him. She did not mention the touching incidents at
the time. On Sunday, August 7, Lyon County Chief Deputy Jerry
Birkey executed a search warrant of the VanDekieft home along
with four other officers. Perry did not ask about the reason
for the search. He told deputy Birkey that Tari is
"vengeful" and "spiteful, " and he
believed Tari had accused him of "child
State charged Perry with sexual abuse in the second degree.
The parties proceeded to a jury trial. At trial, the State
offered testimony from Tari, C.L., deputy Birkey, and
Victoria Hilton. Hilton is a child forensic interviewer who
interviewed C.L. on August 5, 2016; however, the State
offered her as an expert witness to testify generally about
interviewing children regarding sexual abuse. Hilton did not
testify about C.L. beyond acknowledging her interview. Perry
testified in his defense. He denied ever touching C.L. for
sexual gratification, though he acknowledged he would touch
her on her side and leg and tell her she was pretty "to
reassure her." He denied ever touching C.L.'s
vagina. He testified Tari may have falsely accused him
because he had a strong relationship with C.L. and was
"awful friendly with" her. The jury convicted Perry
of sexual abuse in the second degree in violation of Iowa
Code section 709.3(1)(b) (2016), and the court sentenced him
to twenty-five years imprisonment.
now appeals. He asserts the district court abused its
discretion in allowing testimony from Hilton, the court erred
in allowing Tari to present hearsay testimony, and the
prosecutor committed misconduct. He also asserts his counsel
was ineffective for failing to object to a jury instruction
that allowed the jury to use his out-of-court statements as
if they had been made at trial.
Standard of Review
review the admission of expert testimony for abuse of
discretion. State v. Brown, 856 N.W.2d 685, 688
(Iowa 2014). The admission of hearsay is reviewed for errors
at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa
2006). We review claims of prosecutorial misconduct and
ineffective-assistance-of-counsel de novo. State v.
Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). To the
extent the underlying challenge to the jury instruction
implicates a constitutional right, we review the challenge de
novo. State v. Green, 896 N.W.2d 770, 775 (Iowa
2017). To the extent the underlying challenge to the jury
instruction does not implicate a constitutional right, we
review the challenge for errors at law, and we
"determine whether the challenged instruction accurately
states the law and is supported by substantial
evidence." Id. (quoting State v.
Hanes, 790 N.W.2d 545, 548 (Iowa 2010)).
Admission of Expert Witness Hilton
argues the district court abused its discretion by allowing
Hilton to testify as an expert witness. According to Perry,
Hilton inappropriately bolstered C.L.'s credibility with
her testimony about delayed disclosure among abused children.
initial matter, the State argues Perry has not preserved
error on this argument. Perry objected to the admissibility
of Hilton as an expert witness in a motion in limine. The
district court responded in writing:
After examining the authorities cited, including State v.
Dudley, 856 N.W.2d 668 (Iowa 2014), the Court thinks
that limited testimony concerning grooming is admissible. To
that extent, the Defendant's motion in limine is
overruled. The Court expects that the "grooming"
testimony would be offered in general terms. The Court thinks
it may be admissible, on a proper foundation, to explain
delayed reporting or partial or incomplete reporting.
Testimony that C.L. might suffer child sexual abuse
accommodation syndrome will not be permitted. Testimony that
the Defendant is a groomer and that groomers are molesters
will not be permitted. Testimony that the Defendant and his
conduct fit a profile of child molesters will not be
permitted. Testimony, including opinions, vouching directly
or indirectly for the veracity of C.L. will not be permitted.
renewed his objection to allowing Hilton to testify prior to
the State calling her as a witness, and the district court
You know, we considered this at some length following the
submission of your motion in limine. And it's kind of an
old saw, but I think that the arguments you made should form
part of your cross-examination and argument. I think that,
assuming a proper foundation is laid in open court with
respect to her proposed testimony, then I think that her
testimony is admissible given Iowa- customary Iowa rules on
the admission of expert testimony, and that it will then be
to-the trier of fact will most certainly be instructed to
disregard all, part or none of any expert witness's
testimony just like any other witness. They should consider
the strength of the opinion and qualifications and ...