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State v. Vandekieft

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
PERRY DALE VANDEKIEFT, Defendant-Appellant.

          Appeal from the Iowa District Court for Lyon County, Patrick M. Carr, Judge.

         Perry VanDekieft appeals his conviction of sexual abuse in the second degree.

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

          Thomas 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.

          VOGEL, Presiding Judge.

         Perry VanDekieft[1] 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.

         I. Background Facts and Proceedings

         Perry and Tari VanDekieft[2] 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.

         In the 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.

         Beginning 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.

         Sometime 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.

         On the 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.

         Tari 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 "inappropriate" manner.

         Tari 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.

         At 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 developing.

         On 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 molestation."

         The 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.

         Perry 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.

         II. Standard of Review

         We 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)).

         III. Admission of Expert Witness Hilton

         Perry 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.

         As an 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.

         Perry renewed his objection to allowing Hilton to testify prior to the State calling her as a witness, and the district court responded orally:

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 ...

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