from the Iowa District Court for Scott County, Mark J. Smith,
defendant challenges his convictions for burglary in the
first degree and sexual abuse in the third degree.
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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
Facts and Prior Proceedings
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
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.
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). Nurse Grier recalled E.B.
was "tearful" and "withdrawn." Grier
performed vaginal and perianal swabs to collect potential
evidence of a sexual assault.
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.
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.
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) and sexual abuse in the
third degree, a class "C" felony, in violation of
section 709.4(1)(a). The State later amended the trial
information to add a sentencing enhancement under section
902.14 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
Scope and Standards of Review
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 ...