                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0912
                               Filed July 22, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID E. WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.



      David Williams appeals his convictions of first-degree sexual abuse, third-

degree sexual abuse, and incest. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., May, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

       David Williams appeals his convictions of first-degree sexual abuse, third-

degree sexual abuse, and incest. As to all three convictions, Williams argues the

district court allowed the State to elicit impermissible vouching testimony from two

professionals who interviewed the alleged victim.        He also challenges the

sufficiency of the evidence supporting the serious injury element of his conviction

of first-degree sexual abuse. Finally, Williams argues the court erred in failing to

merge his dual convictions of sexual abuse.

I.     Background Facts and Proceedings

       R.W. is Williams’s family member. She grew up in Oklahoma. R.W. moved

to Iowa with her mother in March 2015, when she was twelve. They moved in with

Williams. Also residing in the home were Williams’s wife and son. At trial, R.W.

testified to numerous instances of sexual abuse at the hands of Williams between

March 2015 and July 2016, during which she was twelve and thirteen years old,

including groping; manual penetration of her vagina; oral, vaginal, and anal sex.

On one occasion of abuse in Williams’s bedroom, R.W. tried to escape from the

situation. Williams responded by putting a lit cigarette against R.W.’s face. The

cigarette left a mark, which developed into a scar. According to R.W.’s trial

testimony, the scar was faint, but she could still see it when she looked at herself

in the mirror.

       R.W. and her mother continued to reside with Williams until late December

2015, when they moved into an apartment. R.W. continued to variously see

Williams on the weekends and during the summer. Toward the end of the summer,

R.W. began advising Williams she was going to tell someone about his conduct.
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Williams would become angry and slap R.W. or grab her by the throat. Ultimately,

the abuse ended in or around July 2016. As noted, all of the abuse occurred while

R.W. was twelve and thirteen years old.

       In March 2017, R.W. was sent to a juvenile detention center. While residing

at the juvenile detention center, Williams, his wife, and his son visited R.W., but

R.W. declined to see them. A few days later, on April 24, a clinical psychologist at

the detention center, Dr. Christine Guevara, conducted a structured interview of

R.W., during which R.W. disclosed allegations of sexual abuse at the hands of

Williams. R.W. testified she did not report the abuse earlier because Williams

advised her to not tell anyone and it was their secret and she felt threatened by

Williams, noting there were times he would slap her when she screamed, and, on

the one occasion, he burned her face with a cigarette. The allegations were

relayed to the Iowa Department of Human Services (DHS). DHS alerted law

enforcement, and an investigation ensued. On April 28, R.W. also underwent a

forensic interview at a child protection center, which was conducted by Miranda

Kracke.

       Williams was charged by trial information with first-degree sexual abuse,

third-degree sexual abuse, and incest. The matter proceeded to a jury trial.

Following the State’s case-in-chief, Williams moved for judgement of acquittal. As

to the charge of first-degree sexual abuse, Williams argued, among other things,

the State failed to establish the serious injury element. The court denied the

motion, reasoning the evidence was sufficient to engender a question for the jury.

The jury found Williams guilty as charged. The court denied Williams’s post-trial
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motion for a new trial and in arrest of judgment. Williams appealed following the

imposition of sentence.

II.      Analysis

         A.     Vouching

         Williams claims the court erred in allowing expert testimony that improperly

vouched for the credibility of R.W.’s allegations. Specifically, he complains of

Dr. Guevara’s testimony concerning delayed disclosures of sexual abuse and

emotional responses to abuse and Kracke’s testimony concerning grooming,

delayed disclosure, and varying accounts of the allegations. Our review is for

discretionary abuse. See State v. Juste, 939 N.W.2d 664, 672 (Iowa Ct. App.

2019). This is our most deferential standard of review. State v. Roby, 897 N.W.2d

127, 137 (Iowa 2017). “When the district court exercises its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable, an abuse of

discretion occurs.” Juste, 939 N.W.2d at 672 (quoting State v. Dudley, 856 N.W.2d

668, 675 (Iowa 2014)).

         At trial, defense counsel had lodged a preliminary objection to any testimony

on the issue of delayed disclosure as improper vouching testimony. 1 The court

noted it would deal with the vouching objection as it arose but advised it would

allow testimony on delayed disclosure so long as it did not specifically bolster

R.W.’s credibility.

         At trial, Dr. Guevara was questioned about delayed disclosure of allegations

of sexual abuse. Counsel renewed her objection during Dr. Guevara’s testimony.



1   The defense had also raised this issue in a pretrial motion in limine.
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The court overruled the objection.     Dr. Guevara went on to testify regarding

delayed disclosure as to children in general. She stated children commonly delay

disclosure because they do not always feel safe in their environment, and

disclosure in a juvenile detention center is common because children feel safe in

such an environment. She also testified it is common for frequent abuse to become

normalized for children. She additionally stated some children do not report abuse

because of Stockholm syndrome—attachment to their abuser.

       The State also called Kracke as a witness and questioned her about

delayed disclosure of sexual abuse. Defense counsel’s objection to testimony on

the issue was again overruled. Kracke went on to explain children do not report

sexual abuse because they are either told they would not be believed or they

themselves simply think they will not be believed, they have been threatened, or

they believe “someone they loved would be hurt” or get in trouble. Kracke was

also questioned about the commonality of children providing varying allegations to

different people. Defense counsel’s objection to the question was overruled, and

Kracke testified that would depend on a number of dynamics. She also explained

when the abuse is ongoing, it is hard for children to identify specific incidents of

abuse because they all mesh together.

       Williams largely complains the State crafted its examination of these

witnesses to explain the circumstances of R.W.’s report of sexual abuse and her

inconsistent accounts of the allegations. But both witnesses only testified to

children in general; neither referred to R.W. specifically, and neither stated R.W.’s

conduct was consistent with that of other victims of sexual abuse. See State v.

Leedom, 938 N.W.2d 177, 192 (Iowa 2020) (noting, “Experts may express general
                                        6


opinions but may not directly comment on the veracity of the child victim” and

finding testimony that “was general in nature describing why children delay

disclosure, the grooming process, why children have an inability to recall specific

dates” permissible); Dudley, 856 N.W.2d at 676 (noting general testimony about

tendencies of victims of sexual abuse is allowed when “the expert witness avoided

commenting directly on the child at issue”). Thus, we find no abuse of discretion

or resulting cause for reversal. See, e.g., State v. Lindaman, No. 18-1147, 2020

WL 821974, at *6 (Iowa Ct. App. Feb. 19, 2020).

      B.     Sufficiency of the Evidence

      Next, Williams challenges the sufficiency of the evidence supporting the

serious injury element of his conviction of first-degree sexual abuse. Challenges

to the sufficiency of the evidence are reviewed for corrections of errors at law.

State v. Mathias, 936 N.W.2d 222, 226 (Iowa 2019). The court views “the evidence

‘in the light most favorable to the State, including all reasonable inferences that

may be fairly drawn from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa

2017) (quoting State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is

considered, not just that of an inculpatory nature. See Huser, 894 N.W.2d at 490.

“[W]e will uphold a verdict if substantial evidence supports it.” State v. Wickes,

910 N.W.2d 554, 563 (Iowa 2018) (quoting State v. Ramirez, 895 N.W.2d 884, 890

(Iowa 2017)). “Evidence is substantial if, ‘when viewed in the light most favorable

to the State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.’” Id. (quoting Ramirez, 895 N.W.2d at 890). Evidence is not

rendered insubstantial merely because it might support a different conclusion; the

only question is whether the evidence supports the finding actually made. See
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Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010).

In considering a sufficiency-of-the-evidence challenge, “[i]t is not the province of

the court . . . to resolve conflicts in the evidence, to pass upon the credibility of

witnesses, to determine the plausibility of explanations, or to weigh the evidence;

such matters are for the jury.” State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006)

(quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)).

           The State bears the burden of proving every element of a charged offense.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Williams does not

challenge the jury instructions employed at trial. As such, the instructions serve

as the law of the case for purposes of reviewing the sufficiency of the evidence.

See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018). On the charge of

first-degree sexual abuse, the jury was instructed the State must prove, among

other things: “In the course of committing the sexual abuse, David Williams caused

a serious injury to R.W.” See Iowa Code § 709.2(1) (2015). “Serious injury” was

defined as “a bodily injury which causes serious permanent disfigurement.” See

id. § 702.18(1)(b)(2). The jury instructions defined “bodily injury” as “physical pain,

illness or any impairment of physical condition.” Accord State v. McKee, 312

N.W.2d 907, 913 (Iowa 1981) (adopting Model Penal Code definition of bodily

injury).

           Williams claims the evidence was insufficient to show the cigarette burn to

R.W.’s face amounted to a serious permanent disfigurement. He complains no

photographs of the scar were admitted as evidence and R.W. simply pointed to

where it was but the record indicates it could not be seen by the jury. However,

while R.W. testified the scar was faint, she noted she could still see it when she
                                             8


looked at herself in the mirror. Furthermore, when R.W. underwent a second

forensic interview in 2019, years after the incident and shortly before trial, the

interviewing nurse viewed the area where R.W. reported being burnt. She testified,

“It looked like a scar.” Although she acknowledged it could have been caused by

a host of things, the nurse’s testimony that “[i]t looked like a scar,” coupled with

R.W.’s testimony as to how she got it and it was still visible when she looked in the

mirror, and when viewed in the light most favorable to the State, was substantial

evidence that R.W. was still scarred from the cigarette burn. And Williams makes

no claim the scar, if its existence was proven by substantial evidence, could not

amount to a serious permanent disfigurement. Even if he did, while scarring does

not amount to a per se serious permanent disfigurement, whether it does in any

given case is for the jury to decide. State v. Hanes, 790 N.W.2d 545, 554 (Iowa

2010).

         Viewing the evidence in the light most favorable to the State, as we must,

we conclude the evidence was sufficient to establish the challenged element of

first-degree sexual abuse beyond a reasonable doubt.

         C.     Merger

         Finally, Williams claims the district court erred in failing to merge his sexual-

abuse convictions. Because Williams was sentenced on both convictions, he

characterizes his claim as a challenge to an illegal sentence, which can be raised

at any time. Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 643 (Iowa 2019). The

State claims Williams mischaracterizes his challenge as one to an illegal sentence

and is really a challenge to the sufficiency of evidence to support both charges as

separate events and thus error is not preserved. We disagree. Williams, at least
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partially, bases his argument on lesser-included-offense principles and how the

jury was instructed. See State v. Stewart, 858 N.W.2d 17, 22 (Iowa 2015) (noting

focus of merger analysis “is on the crimes charged in the trial information and for

which the jury was instructed”); State v. Ross, 845 N.W.2d 692, 701 (Iowa 2014)

(noting the merger doctrine involves “double jeopardy claims involving lesser-

included offenses”). We proceed to the merits.

       Iowa Code section 701.9 provides:

       No person shall be convicted of a public offense which is necessarily
       included in another public offense of which the person is convicted.
       If the jury returns a verdict of guilty of more than one offense and
       such verdict conflicts with this section, the court shall enter judgment
       of guilty of the greater of the offenses only.

Simply stated, under the merger doctrine, “if the lesser offense contains an

element that is not part of the greater offense, the lesser cannot be included in the

greater,” and merger is not required. State v. Anderson, 565 N.W.2d 340, 343

(Iowa 1997).    The determination logically begins “with the court’s marshaling

instruction on the greater offense.” Id. (quoting State v. Turecek, 456 N.W.2d 219,

223 (Iowa 1990)). We apply the legal elements test, which, importantly, is “purely

a review of the legal elements and does not consider the facts of a particular case.”

Krogmann v. State, 914 N.W.2d 293, 325 (Iowa 2018) (quoting State v. Love, 858

N.W.2d 721, 725 (Iowa 2015)).

       [U]nder the legal test the lesser offense is necessarily included in the
       greater offense if it is impossible to commit the greater offense
       without also committing the lesser offense. If the lesser offense
       contains an element not required for the greater offense, the lesser
       cannot be included in the greater.

Id. (alternation in original) (quoting State v. Braggs, 784 N.W.2d 31, 35–36 (Iowa

2010)).
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       So, the question before us is whether it was impossible for Williams to

commit first-degree sexual abuse, as instructed, without also committing third-

degree sexual abuse, as instructed. As noted, this is a legal test, and the facts of

the case have no bearing on the determination. As to the charge of sexual abuse

in the first degree, the jury was instructed the State was required to prove the

following elements:

              1. Between March of 2015 and September of 2016, David
       Williams performed a sex act with R.W.
              2. The defendant performed the sex act while R.W. was under
       the age of 14 years.
              3. In the course of committing the sexual abuse, David
       Williams caused serious injury to R.W.

As to third-degree sexual abuse, the jury was instructed the State was required to

prove the following elements:

              1. Between March of 2015 and September of 2016, David
       Williams committed a sex act on R.W.
              2. The sex act occurred while R.W. was 12 or 13 years of age.
              3. The act was between persons who were not at the time
       cohabiting as husband and wife.

       Element one of each charge is virtually identical. It would be impossible for

Williams to commit element one of count one without also committing it as to count

two. Element two of count two is likewise subsumed into element two of count

one, as a twelve- or thirteen-year old is under the age of fourteen years. Element

three of count two requires that the sex act be between persons not cohabiting as

husband and wife. Count one does not require the establishment of that element.

As a result, it would not be impossible for Williams to commit first-degree sexual

abuse without also committing third-degree sexual abuse. Had Williams and R.W.

been cohabiting as husband and wife, he could have been convicted under count
                                         11

one but not count three. As such, merger is not required. See id. While Williams

urges the jury was required to find that two separate sex acts occurred, which it

did not, such is irrelevant to the legal question of whether count two is a lesser-

included offense of count one. See Bryson v. State, 886 N.W.2d 860, 864–65

(Iowa Ct. App. 2016) (“[D]espite our agreement with Bryson’s assertion that merger

would be proper because the jury was not asked to find two, nonsexual assaults,

his merger claim fails because robbery, the lesser offense, contains an element

not required for burglary, the greater offense.”).

III.   Conclusion

       We find no abuse of discretion on Williams’s claim the court allowed

impermissible vouching testimony. We find the evidence sufficient to support the

serious injury element of first-degree sexual abuse. We conclude merger of the

sexual-abuse convictions is not required. We affirm.

       AFFIRMED.
