                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1266
                              Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK LAVERN HOLT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, James M.

Drew, Judge.



      Patrick Holt appeals his conviction and sentence for lascivious acts with a

child. AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Robert P.

Ranschau, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.
                                             2


GREER, Judge.

        Patrick Holt appeals his conviction and sentence for lascivious acts with a

child. He raises four arguments on appeal: (1) the court erred in overruling his

motion for new trial; (2) his counsel was ineffective for failing to object to an expert

witness’ improper vouching testimony; (3) the court erred by instructing the jury on

general and specific intent; and (4) the court abused its discretion in issuing his

sentence. On our review, we affirm.

        I. Background Facts and Proceedings.

        In 2018, Patrick Holt was charged with one count of lascivious acts with a

child in violation of Iowa Code section 709.8(1), (2)(a) (2013). The case proceeded

to a jury trial.

        At trial, the evidence established that almost every day during the summer

of 2014, eleven-year-old L.K. and her mother, A.K., spent time at Holt’s house in

Mason City, Iowa.1 Holt often bought L.K. clothing and toys, and he took L.K. and

her mother on trips to the Grotto of the Redemption in West Bend and an Iowa

Cubs baseball game in Des Moines.

        During one of the summer visits, A.K. left L.K. at Holt’s house and went to

a gas station nearby. According to L.K., while her mother was gone, L.K. and Holt

were in an upstairs bedroom called the “girl’s room,”2 sitting in front of a desk with

a computer. Holt pulled up a pornographic video on the computer, began rubbing




1
  At the time of trial, A.K. was jailed on a drug charge and had not seen L.K. for three
years.
2
  Holt’s house had three bedrooms: his room, a “girl’s room,” and a “boy’s room.” The
girl’s room had girls’ clothing and toys, and the boy’s room had boys’ clothing and toys.
Holt has a son and a daughter, both of whom were in their late twenties at the time of trial.
                                          3


his penis, and then touched L.K.’s vagina on top of and under her clothing. This

continued for about a minute until L.K. heard her mother return to the house and

she ran downstairs to meet her. L.K. testified that she was glad and relieved when

her mother returned to the house. They left soon after, but L.K. remembers having

to go back with her mother to Holt’s house on other occasions later that summer.

Holt denies all of these allegations.

       As further support for L.K.’s version, A.K. testified that when she returned,

L.K. met her at the door, hysterical, sobbing, and upset. L.K. immediately told her

that Holt had tried to make her touch him and that he had touched her. A.K.

testified that they left right away and never spoke to Holt again.

       Trial testimony of A.K. and L.K. highlighted other troubling interactions with

Holt. For example, he once bought L.K. a two-piece swimsuit and wanted her to

try it on and show him. L.K. felt uncomfortable and refused. On another occasion,

L.K. testified that Holt once gave her a gift bag and asked her to sit on his lap while

she opened it. A.K. once saw Holt brush his arm briefly across L.K.’s chest and,

more than once, he patted L.K. on the bottom when he gave her hugs. More

troubling, A.K. also testified that she had seen pornographic pictures and videos

on the computer in the girl’s room and had seen pornographic magazines around

the house.

       For expert testimony, the State called Miranda Kracke, a forensic

interviewer with the Allen Child Protection Center. Kracke had interviewed L.K. as

part of the investigation for this case. Before trial, Holt moved to limit Kracke’s

testimony to avoid improper vouching for L.K.’s credibility. The court ruled that

Kracke could testify generally but could not testify about L.K.’s case specifically.
                                           4


The court cautioned Holt’s counsel to object if she believed Kracke’s testimony

was crossing the line into improper vouching.

        Limiting her testimony, Kracke did testify that it is common for children who

have experienced sexual abuse not to report the abuse right away and not to

disclose all of the abuse at once. She discussed reasons children wait to report,

including having parents who are not supportive.

        Kracke also testified about “grooming,” which she described as “a

desensitization process, . . . a process of gaining trust to eventually gain access,

in this case—in the case of grooming as we’re talking about it, for sexual access

to a child.” She also described common grooming tactics:

                So sometimes in cases where then an investigative team is
        concerned that grooming may have occurred, children have talked
        to me about either being shown pornography as a way to normalize
        sex or talking about sex, just to make it seem like it’s something that’s
        okay to discuss. Sometimes children have talked to me about
        receiving gifts or candy, stuffed animals, toys, different things like
        that, just as part of being made to feel special or being singled out in
        some way. Sometimes in cases I’ve had where there, like, are
        multiple siblings, that child felt special or different compared to their
        brothers or sisters, just different ways that they are then feeling
        special. Sometimes it also involves physical contact so lots of kids
        talk with me about wrestling or back rubs that then eventually lead to
        more overt sexual activity.

        To attack L.K.’s credibility, Holt called L.K.’s school guidance counselor,

who met weekly with L.K. in fifth and sixth grade around the time of the alleged

assault. L.K. revealed to the counselor that an unnamed man in the neighborhood

had made her feel uncomfortable. The counselor asked L.K. if this man did

anything to her, and she said no but “she felt creeped out by the way he looked at

her.”
                                            5


       Another defense witness, Marcella Joyce, testified that around the time of

the alleged assault, she and her daughter sometimes stayed at Holt’s house.

Joyce stayed in the boy’s room and her daughter stayed in the girl’s room.

Responding to the existence of pornography on the computer, Joyce testified that

the computer in the girl’s room did not work and did not have a keyboard.

Moreover, Joyce never saw Holt inappropriately touch L.K.

       Holt testified on his own behalf, denying L.K.’s allegations. To challenge

the credibility of L.K.’s version of events, Holt testified he has had a medical

condition called “buried penis syndrome” since 1996.3 According to Holt, during

the summer of 2014, only his urethra was visible as skin had contracted around

the rest of his penis and he could not get an erection.               He underwent an

unsuccessful corrective surgery in 2001. After that failed procedure, the doctor

said he would not attempt surgery again unless Holt lost one hundred pounds.

Although he lost the weight, Holt did not undergo a second surgery until 2017, after

the conduct alleged here.

       Holt also called Dr. Erickson, the surgeon who performed his second

surgery, as a witness. Dr. Erickson testified “the only thing that you could . . .

reasonably see when I first met him [in 2017] was the glans penis, which is the

head of the penis.” Because his treatment occurred later, Dr. Erickson lacked

knowledge of how much of Holt’s penis was visible before 2017. Despite the

condition, Dr. Erickson testified that while only a portion of Holt’s penis was visible,


3
  Dr. Bradley Erickson first examined Holt in 2017. He described Holt’s condition as
follows: “[H]e has morbid obesity, and that led to what we call a pannus, which is a large
amount of skin that hangs off the abdominal wall and in his case over the penis, which will
effectively bury the penis and disallow you from seeing the tip of the penis.”
                                         6


Holt was still able to get erections and would experience the sensation of an

erection.   Likewise, Holt’s medical records also revealed that he could get

erections sometimes.

       A jury convicted Holt of lascivious acts with a child. The district court

sentenced Holt to an indeterminate, ten-year prison sentence as well as a special

lifetime sentence under Iowa Code chapter 903B. As a result of this verdict, Holt

must now register as a sex offender. Holt appeals.

       II. Standard of Review.

       “We generally review rulings on motions for new trial asserting a verdict is

contrary to the weight of the evidence for an abuse of discretion.” State v. Ary,

877 N.W.2d 686, 706 (Iowa 2016). An abuse of discretion exists when the court

“exercises its discretion on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Wickes, 910 N.W.2d 554, 564 (Iowa 2018) (quoting State

v. Hill, 878 N.W. 2d 269, 272 (Iowa 2016)).

       We review ineffective-assistance-of-counsel claims de novo. State v. Lilly,

930 N.W.2d 293, 298 (Iowa 2019). “[W]e review challenges to jury instructions for

correction of errors at law.” State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018)

(quoting Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)). We review

a sentence imposed in a criminal case for correction of errors of law. Iowa R. App.

P. 6.907; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb

a sentence unless the defendant shows an abuse of discretion or a defect in the

sentencing procedure. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).

       III. Analysis.

       We address the four arguments Holt raises on appeal.
                                         7


      A. Motion for New Trial. Holt claims that because of the discrepancies

between L.K.’s testimony and other witnesses’ testimony, L.K.’s testimony was not

credible, the verdict was contrary to the weight of the evidence, and the district

court abused its discretion by refusing to grant a new trial. See Iowa R. Crim. P.

2.24(2)(b)(6). “A verdict is contrary to the weight of the evidence only when ‘a

greater amount of credible evidence supports one side of an issue or cause than

the other.’” Ary, 877 N.W.2d at 706 (quoting State v. Shanahan, 712 N.W.2d 121,

135 (Iowa 2006)).

              The weight-of-the-evidence standard requires the district
      court to consider whether more “credible evidence” supports the
      verdict rendered than supports the alternative verdict. It is broader
      than the sufficiency-of-the-evidence standard in that it permits the
      court to consider the credibility of witnesses. Nonetheless, it is also
      more stringent than the sufficiency-of-the-evidence standard in that
      it allows the court to grant a motion for new trial only if more evidence
      supports the alternative verdict as opposed to the verdict rendered.
      The question for the court is not whether there was sufficient credible
      evidence to support the verdict rendered or an alternative verdict, but
      whether “a greater amount of credible evidence” suggests the verdict
      rendered was a miscarriage of justice.

Id. (quoting State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998)). A court should

only grant a motion for new trial on this ground “in the extraordinary case in which

the evidence preponderates heavily against the verdict rendered.” Id.

      In denying the motion for new trial, the district court determined,

              With respect to the motion for new trial, unlike the motions at
      the close of the State’s evidence where evidence must be viewed in
      the light most favorable to the State, the Court applies the weight of
      the evidence standard on a motion for new trial.
              In doing so, I note that the jury obviously believed the
      testimony of [L.K.] during the course of the trial. It was my
      observation while watching her testify that she was appropriately
      emotional given the circumstances, did not appear to be
      manufacturing emotions or overacting, trying to sell anything to the
      Court.
                                            8


              I also recognize that there was evidence presented on behalf
       of the defense regarding Mr. Holt’s physical condition. And to that, I
       would note that first of all, only [L.K.] and Mr. Holt know exactly what
       was seen and what happened on that day. The doctor wasn’t
       present. Perhaps [L.K.] is mistaken in what she believes she saw;
       perhaps not. Whether or not Mr. Holt had an erection at the time is
       not an element of the offense, and so this is merely a matter that
       would go towards credibility. As I’ve indicated, the jury obviously
       believed [L.K.]. And I found her testimony to be convincing as well.
              I would also note that there was evidence presented from
       which the jury could conclude that Mr. Holt was grooming, trying to
       set up this offense, which could also support the jury’s decision.
       Juries are free to accept or reject any evidence that they choose to.
       The mere fact that there are conflicts in the evidence does not require
       a new trial. [L.K.] was credible in the jury’s opinion, as well as the
       Court’s.

       We agree with the district court that the jury’s verdict was not contrary to the

weight of the evidence. The district court did not abuse its discretion by denying

Holt’s motion for a new trial.

       B. Improper Vouching. To prevail on an ineffective-assistance-of-counsel

claim,4 Holt has the burden to prove “(1) counsel failed to perform an essential duty

and (2) prejudice resulted.” Shanahan, 712 N.W.2d at 136 (quoting Bowman v.

State, 710 N.W.2d 200, 203 (Iowa 2006)). Counsel fails an essential duty if their

performance was outside the normal range of competency “measured against the

standard of reasonably competent practitioner with the presumption that the

attorney performed [their] duties in a competent manner.” State v. Begey, 672

N.W.2d 747, 749 (Iowa 2003).


4
  Effective July 1, 2019, the legislature prohibited an appellate court from addressing an
ineffective-assistance-of-counsel claim on direct appeal. 2019 Iowa Acts ch. 140, § 31
(codified at Iowa Code § 814.7 (2019)). The Iowa Supreme Court determined this
statutory amendment applies prospectively only. State v. Macke, ___ N.W.2d ___, ___,
2019 WL 4382985, at *7 (Iowa 2019) (“We conclude the absence of retroactivity language
in sections 814.6 and 814.7 means those provisions apply only prospectively and do not
apply to cases pending on July 1, 2019.”). For that reason, the statutory amendment does
not affect this case.
                                           9


       Holt argues the record on this direct appeal is sufficient to address his

ineffectiveness claim. We agree.

       To illustrate his counsel’s ineffectiveness, Holt claims his trial counsel failed

to object to expert Kracke’s testimony about unsupportive parents being a reason

children delay reporting sexual abuse and about grooming techniques such as

showing pornography, giving gifts, and making physical contact. Exercising legal

competence, Holt’s counsel moved in limine regarding Kracke’s testimony and

other issues, and the district court ruled that Kracke could testify generally but not

specifically about L.K.’s case.     At trial, Holt’s counsel objected once during

Kracke’s testimony but did not object to any of the testimony as improper vouching.

       Iowa Rule of Evidence 5.702 and Iowa Supreme Court precedent govern

the admissibility of expert opinion testimony related to vouching. See State v.

Brown, 856 N.W.2d 685, 688–89 (Iowa 2014) (holding that an expert witness report

impermissibly vouched for the child’s credibility by stating that the child’s disclosure

of abuse was “significant and that an investigation is clearly warranted”); State v.

Dudley, 856 N.W.2d 668, 676–77 (Iowa 2014) (holding that an expert witness

impermissibly vouched for the credibility of the child when the expert opined that

the child’s “symptoms were consistent with a child dealing with and suffering from

sexual abuse trauma”); see also State v. Jacquez, 856 N.W.2d 663, 666 (Iowa

2014) (holding that the expert impermissibly vouched for the child’s credibility by

testifying that the child’s behavior was consistent with a child who had been

traumatized multiple times).     Experts may “express opinions on matters that

explain relevant mental and psychological symptoms present in sexually abused

children. However, . . . ‘most courts reject expert testimony that either directly or
                                            10


indirectly renders an opinion on the credibility or truthfulness of a witness.’”

Dudley, 856 N.W.2d at 676 (quoting State v. Myers, 382 N.W.2d 91, 97 (Iowa

1986)); see also Myers, 382 N.W.2d at 97–98 (finding a “‘fine but essential’ line

between an ‘opinion which would be truly helpful to the jury and that which merely

conveys a conclusion concerning defendant’s legal guilt” (quoting State v. Horton,

231 N.W.2d 36, 38 (Iowa 1975)).

          Even though Kracke testified generally about grooming behaviors and

reasons children do not report abuse right away, she did not tell the jury that she

had interviewed L.K., nor did she discuss L.K.’s allegations. In the general sense,

she defined grooming as “a process of gaining trust to eventually gain access, in

this case—in the case of grooming as we’re talking about it, for sexual access to

a child.” (Emphasis added.) While she said “in this case,” she did not reference

L.K. specifically, and she clarified that she meant cases of child sexual abuse.

After considering the relevant case law, we conclude Kracke’s testimony did not

constitute improper vouching. For that reason, Holt cannot establish that his

counsel was ineffective for failing to object to this testimony at trial.

          C. Jury Instructions. Holt next argues that the district court erred by

instructing the jury on both general and specific intent. Lascivious acts with a child

is a specific intent crime, and intent is a necessary element of the offense. See

Iowa Code § 709.8(1).

          At trial, the court gave instructions defining both general intent and specific

intent.    To provide further guidance, the district court appropriately gave the

marshaling instruction for lascivious acts with a child, which required the jury to

find beyond a reasonable doubt that Holt fondled or touched L.K.’s genitals or
                                          11

pubes and that he “did so with the specific intent to arouse or satisfy the sexual

desires of the defendant or [L.K.].” (Emphasis added.)

       We must determine “whether the jury instructions ‘convey[ed] the applicable

law in such a way that the jury ha[d] a clear understanding of the issues’ before it.”

Benson, 919 N.W.2d at 245 (quoting Rivera v. Woodward Res. Ctr., 865 N.W.2d

887, 892 (Iowa 2015)). Here, the marshaling instruction explicitly informed the jury

that for Holt to be guilty of the charged offense, the jury had to find that he acted

with specific intent. We conclude it was not error for the district court to include an

instruction defining general intent.

       D. Sentence. Finally, Holt argues the district court erred by considering

improper factors when imposing his sentence. In effect, Holt argues he should

have received a suspended sentence and probation instead of incarceration

because of his age, lack of criminal record, and the fact that he had no issues while

on pretrial release. The sentence must “provide maximum opportunity for the

rehabilitation of the defendant, and for the protection of the community form further

offenses by the defendant and others.” Iowa Code § 901.5. “‘[I]f a court in

determining a sentence uses any improper consideration, resentencing of the

defendant is required,’ even if it were ‘merely a secondary consideration.’” State

v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (quoting State v. Grandberry, 619

N.W.2d 399, 401 (Iowa 2000)).

       At sentencing, the district court considered the goals of rehabilitation,

protection of the community, and deterrence, as well as Holt’s age, criminal history,

employment, family circumstances, the nature of the offense, Holt’s lack of
                                        12


acceptance of responsibility, and information in the presentence investigation

report. Considering all these factors, the court determined,

             I do consider this to be a crime of immense seriousness given
      the vulnerability of children. You’ve not accepted any responsibility
      for the action. The prospects of you being successful on probation
      are remote at best because in the Sex Offender Treatment Program,
      one must admit what they’ve done or there’s no therapeutic value to
      it. And that’s not to say that I would give you probation even if you
      had. I don’t know because we aren’t there.
             But I know this. Until it can be demonstrated that you’ve been
      rehabilitated, I don’t believe it’s safe for you to be in the community.
      And I believe that the State’s recommendation is appropriate.
             And I also think that this sentence is important from a
      deterrence standpoint so that people do understand that when this
      type of thing happens there are serious consequences.

      Having reviewed the record, the district court did not consider any improper

factors and did not abuse its discretion in sentencing Holt to a period of

incarceration.

      IV. Conclusion.

      For all of the above stated reasons, we affirm Holt’s conviction and

sentence.

      AFFIRMED.
