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State v. Lewis

Court of Appeals of Iowa

September 26, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
KENITH LEWIS, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

         A defendant challenges his convictions for burglary in the first degree and sexual abuse in the third degree.

          Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          TABOR, JUDGE.

         The key question on appeal is whether a sexual assault nurse examiner impermissibly vouched for the credibility of the State's key witness when the nurse offered theories on "why a woman would not fight back or sustain injury during sexual abuse." Kenith Lewis-through appellate counsel-argues his trial attorney was ineffective for not lodging the proper objection to the nurse's testimony. In a supplemental brief, Lewis-representing himself-raises claims concerning trial counsel's failure to object to identification testimony, the sufficiency of the evidence, the constitutionality of his sentence, and jury selection. Because Lewis fails to show trial counsel's performance fell below professional standards, we reject his ineffective-assistance claims. Finding no other ground for reversal, we affirm Lewis's convictions and sentences for burglary in the first degree and sexual abuse in the third degree.

         I. Facts and Prior Proceedings

         The jury returned guilty verdicts based on the following facts. Tired after a rough week, E.B. fell asleep on the living room couch on a June night in 2015. She awoke early that morning, feeling "somebody on top" of her. The man put his arm over her mouth and whispered: "I don't want to hurt you, but I will." E.B. feared for her mother and teenage daughter who were asleep in the next room, as well as her two younger daughters who were sleeping upstairs.[1]

         E.B. recalled the man lifting up her dress from behind and trying to force his penis inside her vagina, resulting in contact but not penetration. E.B. hoped to move the intruder out of the house to protect her family members as he walked her to the kitchen and again tried to sexually assault her. He then took her to the bathroom where he pushed his penis inside her vagina and ejaculated. After the sex act, the intruder sprayed her with cleaning fluid and turned on the bathtub faucet, telling her to "wash really good down there." As he left, he said he'd be watching her and warned her not to call the police.

         Despite his threats, E.B. called 911 and reported the crime to police. She described the intruder, but E.B. acknowledged she did not see his face because he was always behind her. She also went to the hospital where she met with Jessica Grier, a sexual assault nurse examiner (SANE).[2] Nurse Grier recalled E.B. was "tearful" and "withdrawn." Grier performed vaginal and perianal swabs to collect potential evidence of a sexual assault.

         The next day, E.B. went to her neighborhood bar to do her own investigation. She testified:

I felt like I needed to know who did this to me. I didn't think-I don't know what I was thinking. I walked into the bar. I said, Hey-I was like-you know, I gave him a description that I had of the man that walked in my house. And the bartender that was there gave me a name, and he said, "[T]his guy, it probably is him."

E.B. found a photograph on Facebook of the man named by the bartender, thought it was "definitely" her attacker, and reported the suspect to police. That suspect had an alibi and submitted a DNA sample that did not match the profile developed from the swabs taken as part of E.B.'s examination at the hospital.

         But police soon developed another lead. The Division of Criminal Investigation lab notified detectives of a possible match for the DNA found in E.B.'s sex assault kit. The new suspect, Lewis, lived about two blocks from E.B. at the time of the assault. Lewis left his job at Oscar Mayer five days after the incident and moved to Minnesota. Six months after the assault, a detective showed E.B. a photograph of Lewis. E.B. told the detective: "[T]hat was him. That's the guy that raped me." The detective recalled E.B.'s reaction to seeing Lewis's photograph: "She immediately broke down and started crying; said she made a horrible mistake" in blaming the man named by the bartender. Police obtained a DNA sample from Lewis, which matched the profile developed from E.B.'s rape kit.

         The State charged Lewis with burglary in the first degree, a class "B" felony, in violation of Iowa Code sections 713.1, 713.3(1)(d) (2015)[3] and sexual abuse in the third degree, a class "C" felony, in violation of section 709.4(1)(a).[4] The State later amended the trial information to add a sentencing enhancement under section 902.14[5] based on Lewis's two second-degree-sexual-abuse convictions from 1991. Lewis's first trial ended in a hung jury. In his second trial, the jury found him guilty as charged and decided he was the same person who was convicted in 1991. In July 2017, the district court sentenced Lewis to twenty-five years for second-degree burglary and life in prison for enhanced sexual abuse. He now appeals.

         II. Scope and Standards of Review

         Because claims of ineffective assistance of counsel are rooted in the Sixth Amendment and article I, section 9 of the Iowa Constitution, we review them de novo. See State v. Henderson, 908 N.W.2d 868, 874 (Iowa 2018). We also apply a de novo standard of review to his ex post facto and public trial issues. See State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018); State v. Schultzen, 522 N.W.2d 833, 835-36 (Iowa 1994). When considering Lewis's challenge to the ...


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