from the Iowa District Court for Des Moines County, John G.
defendant appeals his conviction for sexual abuse in the
William Monroe of Law Office of William Monroe, Burlington,
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., Bower, J., and Blane, S.J.
Cagle appeals his conviction of sexual abuse in the second
degree based on error in evidentiary rulings and ineffective
assistance of trial counsel. He asserts the court erroneously
admitted the out-of-court forensic video interview of the
child witness, J.C. Additionally, he maintains his trial
counsel provided ineffective assistance when counsel failed
to object to (1) the prosecutor's alleged misconduct
during the trial, (2) admission into evidence of the
out-of-court forensic video, and (3) claimed improper
evidence of vouching for the credibility of J.C. Upon our
review of the issues, we find neither error by the court nor
ineffective assistance by Cagle's counsel and affirm.
the trial evidence in the light most favorable to the
jury's guilty verdict, the jury could have found the
following facts." State v. Romer, 832 N.W.2d
169, 172-73 (Iowa 2013). Four-year-old J.C. was on
Cagle's bed and wearing his "Batman jammies."
Defendant Cagle showed him a cellphone video depicting a
"big kid" in the rain who took off a girl's
shirt, started "licking her booboos,
" put the "big thing" in the
girl's mouth, then "took it out" and "put
it in her." Then Cagle and J.C. started
"touching" and "wiggling" their
"weewees" "up and down." In J.C.'s
words, Cagle "peed" on J.C.'s hand. The
"pee" was "white" and came out of his
Cagle's "weewee." Afterwards, Cagle was
"angry" and made grunting sounds. Cagle told J.C.
not to tell anyone.
mother picked J.C. up from Cagle's home. She did not
think anything out of the ordinary, except that J.C.
"didn't have any underwear on." Cagle told her
that J.C. had wet the bed. A few days later, J.C. spoke with
a forensic interviewer at the Mississippi Valley Child
Protection Center (CPC). The interview was recorded. J.C.
recounted the above-described event in age-appropriate
vocabulary: "Q. When [Cagle] peed on your hand, were you
touching his weewee? A. Yeah. Q. What were you touching it
with? A. My hand."
trial, J.C. (now five years old) said he did not remember
much about the last time he stayed with Cagle. He did say
that his Cagle "pee[d]" on his hand. There had been
little or no discord between J.C., his mother, and Cagle.
J.C.'s mother said there were no custody issues, that she
and Cagle had remained friends, and she thought they were
both "trying to do what's best for . . .
[J.C.]." According to Cagle's wife, J.C.
"looked up to [Cagle] very much; [Cagle] was his
forensic analysis of Cagle's cell phone revealed
pornographic videos, including one "out in the rain
[that involved] sucking on a female's breasts and then
leading into intercourse." At least one of the videos
also showed oral sex.
September 8, 2016, the Des Moines county attorney filed a
trial information charging Cagle with sexual abuse in the
second degree in violation of Iowa Code sections 709.1(3);
709.3(1)(b); and 709.3(2) (2018), a class "B"
felony. Cagle's counsel filed a written arraignment and
plea of not guilty. A jury trial commenced on August 29,
the jury was selected and sworn and before the opening
statement, the court directed the prosecutor to read to the
jury the trial information and to advise the jury of
Cagle's plea. The prosecutor then read the trial
information, starting with the caption and including the
statement "in the name of and by the authority of the
State of Iowa" and, "This is a true information.
Amy K. Beavers, Des Moines County Attorney, by Todd E. Chelf,
senior assistant county attorney." The prosecutor then
stated to the jury: "To this charge, the defendant has
pled not guilty." Cagle's trial counsel did not
object to these proceedings.
the State's case-in-chief, the prosecution offered, and
the court admitted over a defense hearsay objection, the
video of J.C.'s pretrial forensic interview at CPC. The
State called the forensic interviewer as a witness. Cagle
claims the witness gave "vouching" testimony for
J.C., to which his trial counsel failed to object. During
closing argument, the prosecutor made the statement to the
jury that J.C. testified, "[Cagle] peed on my
hand." Cagle contends this was a misstatement of the
evidence and his trial counsel failed to object to
August 30, the jury returned a guilty verdict. Cagle's
counsel filed a motion for new trial, which was denied. On
October 16, Cagle was sentenced to twenty-five years'
confinement. He filed his notice of appeal on October 19.
Ineffective assistance of counsel.
appeal, Cagle concedes error was not preserved on certain
claims, requiring them to be analyzed as allegations of
ineffective assistance of counsel. Claims of ineffective
assistance are a recognized exception to the error-
preservation rule in direct appeals. State v.
Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). When counsel
fails to preserve error at trial, a defendant can have the
matter reviewed as an ineffective-assistance-of-counsel
claim. State v. Brubaker, 805 N.W.2d 164, 170 (Iowa
2011). We can reach an ineffective-assistance-of-counsel
claim on a direct appeal if the record is sufficient to reach
it. Id. If the record is insufficient to allow for a
review on direct appeal, we do not reach the issue on direct
appeal and allow the defendant to raise the claim in a
separate postconviction-relief action. State v.
Harris, 919 N.W.2d 753 (Iowa 2018).
burden of proof to establish by a preponderance of evidence a
claim of ineffective assistance of counsel is on the
defendant. Ondayog, 722 N.W.2d at 784. Cagle must
show that (1) his attorney failed to perform an essential
duty, and (2) prejudice resulted to the extent that it denied
him a fair trial. See id.; see also Strickland v.
Washington, 466 U.S. 668, 694 (1984). To prevail on a
claim of prosecutorial misconduct, the defendant must show
both the misconduct and resulting prejudice. State v.
Graves, 668 N.W.2d 860, 869 (Iowa 2003).
Standard of review.
claims are reviewed de novo. State v. Virgil, 895
N.W.2d 873, 879 (Iowa 2017).
Whether defense counsel was ineffective for not objecting to
the prosecutor's reading of the trial information and the
manner in which he advised the jury of Cagle's plea of
complains that the assistant county attorney committed not
just prosecutorial error, but prosecutorial
misconduct by reading the entire contents of the
trial information to the jury and the manner in which the
jury was informed of the defendant's not-guilty plea. The
contention is based on Iowa Rule of Criminal Procedure
2.19(1)(a)(1), which provides: "(1) Reading
indictment and plea. The clerk or prosecuting attorney
must read the accusation from the indictment or the
supplemental indictment, as appropriate, and state the
defendant's plea to the jury." (emphasis added).
The issue involves what constitutes the accusation and the
manner in which the prosecutor is to advise the jury of the
the record shows that the prosecutor read the entire trial
information from the caption to the endorsement of "A
True Information" and as signed by the assistant county
attorney. Cagle claims the reading of the entire
trial information was error as it exceeds the
"accusation" called for by the rule. He argues that
the reference to "accusation" limits the county
attorney to reading only the charge against the
defendant-nothing more. Cagle also argues that the county
attorney, in reading the entire trial information, stated it
was a "true" information. He contends that by doing
so, the county attorney impermissibly stated that the
allegation of the charge was "true" and improperly
influenced the jury. In addition, the county attorney stated
to the jury: "To this charge, the defendant has pled not
guilty." Cagle contends that the prosecutor failed to
state that the not guilty plea was "certified true and
correct." Because his trial counsel failed to object to
the county attorney's claimed misconduct, Cagle urges
that his counsel was ineffective and he is entitled to a new
Rules of Criminal Procedure 2.4 and 2.5 regarding indictment
and trial information give us guidance. The trial information
finds its origins in the grand jury indictment. See
Iowa R. Crim. P. 2.5(5). Historically, the Iowa Code required
that "an indictment, when found by the grand jury, and
indorsed 'a true bill,' by the foreman, must be
presented to the court by the foreman, in ...