from the Iowa District Court for Mills County, Mark J.
defendant appeals his conviction for second-degree sexual
C. Smith, State Appellate Defender, (until withdrawal), and
Theresa R. Wilson, Assistant Appellate Defender, for
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
Potterfield, Presiding Judge.
Nuno appeals his conviction and sentence for second degree
sexual abuse in violation of Iowa Code sections 709.1,
709.3(1)(b), and 903B.1 (2017). On appeal, Nuno argues his
constitutional right to confront the State's witnesses
were violated, the denial of his motion for new trial applied
the wrong legal standard, and trial counsel was ineffective
for failing to object to hearsay testimony, vouching
testimony, and victim impact statements from non-victims.
Background Facts and Proceedings.
was accused of sexually touching five-year-old H.R. and
eight-year-old L.S. on one occasion in April 2017. H.R. and
L.S. live with their maternal grandparents (the Schoenings);
H.R.'s uncle; and the uncle's fiancée,
Hollingsworth. Nuno was a friend of the children's
mother. Nuno was charged with four counts of sexual abuse,
two charges involving each of the complaining witnesses, in
July 2017. A jury trial was held in September. The district
court allowed the complaining witnesses to testify via
closed-circuit television. The complaining witnesses, one of
Nuno's attorneys, the prosecutor, and the judge were
positioned in a room separate from Nuno, his second attorney,
and the jury during their testimony. Three of the four counts
were submitted to the jury, which returned a guilty verdict
on one count of sexual abuse in the second degree involving
H.R. The court sentenced Nuno in November to the statutory
indeterminate sentence of incarceration for twenty-five years
with a 70% mandatory minimum.
II. Standard of Review.
review for errors at law when determining whether the trial
court erred in granting the State permission to present the
testimony of child witnesses by closed-circuit television.
State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995).
Constitutional claims, including those based on the
Confrontation Clause, are reviewed de novo. State v.
Rogerson, 855 N.W.2d 495 (Iowa 2014).
review a trial court's ruling on a motion for new trial
for an abuse of discretion." State v. Shanahan,
712 N.W.2d 121, 135 (Iowa 2006).
assistance of counsel claims are also reviewed de novo.
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2016).
"The defendant may raise the ineffective assistance
claim on direct appeal if he or she has reasonable grounds to
believe the record is adequate to address the claim on direct
appeal." Id. "Only in rare cases will the
trial record alone be sufficient to resolve the claim on
direct appeal." Id.
Right to Confront Witnesses.
argues his right to confront his accusers was violated when
the district court allowed L.S. and H.R. to testify by
closed-circuit television broadcast from a location separate
from Nuno's location. The Sixth Amendment of the United
States Constitution provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." Iowa Code
section 915.38(1)(a) allows a minor to testify via
closed-circuit television when testifying in the presence of
the defendant would cause trauma and would impair the
minor's ability to communicate.
objected to the State's pre-trial request to use
closed-circuit television for the presentation of the child
witnesses' testimony. Nuno asserts the State did not lay
a sufficient foundation under section 915.38 and Maryland
v. Craig,497 U.S. 83 (1990), to justify the lack of
face-to-face confrontation. Nuno argues the district court
was required, but failed, to make a specific finding that the
complaining witnesses' ability to communicate would be
impaired by his presence in the same room and that the
accommodation was necessary to protect the children from
trauma. See Iowa Code § 915.38(1)(a) ("[A]
court may protect a minor . . . from trauma caused by
testifying in the physical presence of the defendant where it
would impair the minor's ability to communicate . . . .
[S]uch an order shall be entered only upon a specific finding
by the court that such measures are necessary to protect the
minor from trauma."); Maryland v. Craig, 497
U.S. at 857 ("[W]here necessary to protect a child
witness from trauma that would be caused by testifying in the
physical presence of the defendant, at least where such
trauma would impair the child's ability ...