                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1193
                           Filed September 26, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENITH LEWIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.



      A defendant challenges his convictions for burglary in the first degree and

sexual abuse in the third degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                              2


TABOR, Judge.

          The key 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 degree.

          I.     Facts and Prior Proceedings

          The 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 upstairs.1

          E.B. 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



1
    E.B.’s adult brother was also at the house.
                                           3


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.

       Despite 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).2 Nurse Grier recalled E.B.

was “tearful” and “withdrawn.” Grier performed vaginal and perianal swabs to

collect potential evidence of a sexual assault.

       The 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.


2
  Grier testified that in addition to ensuring the patient is “medically stable,” “in our
emergency department as SANE nurses, we offer evidence collection, we offer
photographic evidence collection, we offer STD prophylaxis, emergency contraception,
and then we do do HIV and hepatitis testing as well.”
                                           4


       But 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.

       The 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)3 and sexual abuse in

the third degree, a class “C” felony, in violation of section 709.4(1)(a).4 The State

later amended the trial information to add a sentencing enhancement under

section 902.145 based on Lewis’s two second-degree-sexual-abuse convictions




3
  Iowa Code section 713.1 provides:
       Any person, having the intent to commit a felony, assault or theft therein,
       who, having no right, license or privilege to do so, enters an occupied
       structure, such occupied structure not being open to the public, or who
       remains therein after it is closed to the public or after the person’s right,
       license or privilege to be there has expired, or any person having such
       intent who breaks an occupied structure, commits burglary.
Burglary is enhanced to first degree if “the person performs or participates in a sex act
with any person which would constitute sexual abuse under section 709.1.” Iowa Code §
713.3(1)(d).
4
  Iowa Code section 709.4(1)(a) provides:
       A person commits sexual abuse in the third degree when the person
       performs a sex act under any of the following circumstances: . . . The act
       is done by force or against the will of the other person, whether or not the
       other person is the person's spouse or is cohabiting with the person.
5
  Iowa Code section 902.14(1) provides:
                                          5


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 appeals.

      II.    Scope and Standards of Review

      Because 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 sufficiency

of the State’s evidence, we review for errors at law. See State v. Kelso-Christy,

911 N.W.2d 663, 666 (Iowa 2018).

      III.   Analysis

      A.     Ineffective Assistance of Counsel

      To prevail on his constitutional claim, Lewis must prove, by a

preponderance of the evidence, trial counsel breached an essential duty resulting

in actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). On

the duty prong, Lewis must prove “counsel’s representation fell below an objective



             A person commits a class ‘A’ felony if the person commits a second
      or subsequent offense involving any combination of the following offenses:
             a. Sexual abuse in the second degree in violation of section 709.3.
             b. Sexual abuse in the third degree in violation of section 709.4.
             c. Lascivious acts with a child in violation of section 709.8,
      subsection 1, paragraph ‘a’ or ‘b’.
                                               6

standard of reasonableness” considering all the circumstances. See id. at 688.

On the prejudice prong, he must establish but for counsel’s unprofessional errors,

a reasonable probability existed the outcome of the proceeding would have been

different. See id. at 694. Inability to satisfy either prong is fatal to Lewis’s claim.

See State v. Neitzel, 801 N.W.2d 612, 624 (Iowa Ct. App. 2011). We often

preserve ineffective-assistance claims for postconviction proceedings, but we will

address them on direct appeal if the record allows. Id. We find the record here

adequate to address both claims of ineffective assistance of trial counsel.

          1.     Expert Testimony of Nurse

          Lewis’s appellate attorney focuses on trial counsel’s handling of Grier’s

testimony. At issue is the following exchange from the nurse’s direct testimony:

                 Q: Based on your training, education, and experience, is there
          a generally-accepted theory, again, based on case studies, that why
          a woman would not fight back or sustain injury during a sexual
          abuse?
                 [Defense Counsel]: Your Honor, I would just renew my
          objection[6] I think that’s outside the scope of her training and
          everything.
                 THE COURT: Well, I think she can answer that question. Go
          ahead.
                 A: So I don’t have specific case studies that I can share with
          you here today off the top of my head; however, in my training,
          especially when we focus on trauma-informed care, it is often that
          the brain cortex just kind of shuts down. Fear kind of drives
          everything. And in my training that I went to back in October of 2014,
          I actually sat in and listened to an interview of a sexual assault victim
          where the fear drove the way that she just completely shut down
          because she was afraid that if she was to yell, if she was to scream,
          if she was to fight, that she would not only be putting herself in
          danger, but her child that was just in the room next door. So you can
          hear interviews from victims in the past, and it’s just from, studies
          have shown, that once fear drives, you have your flight-or-fight,
          which is driven by your epinephrine and norepinephrine, so you’re
          either going to fight or you’re going to, like I said, the whole fight-or-

6
    Defense counsel’s original objection was “calls for speculation.”
                                           7


       flight concept, that you’re going to flight, I guess you could put it, and
       your body just kind of shuts down. Your brain isn’t connecting
       because you’re so afraid. There’s a lot of women that just—their
       emotions, their feeling—the feeling from here to their toes isn’t
       connecting because they’re afraid that if they were to fight, that
       they’re putting themselves in danger, as well as anybody else that
       could                  be                   around                  them.

       Lewis argues the State impermissibly used the nurse’s expert testimony to

bolster E.B.’s credibility on the non-consensual nature of the sex act. He asserts:

“It was apparent that the State perceived a weakness in the victim’s story that the

sex was against her will because she did not yell for help when there were other

adults in the house.” The State counters that Grier did not impermissibly vouch

for E.B.’s truthfulness because her testimony did not address E.B.’s specific

reaction to the assault.

       The admissibility of expert opinion testimony is governed by Iowa Rule of

Evidence 5.702 and a recent trilogy of cases from our supreme court interpreting

that rule. See, e.g., State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014); State v.

Dudley, 856 N.W.2d 668, 676–77 (Iowa 2014); State v. Jaquez, 856 N.W.2d 663,

666 (Iowa 2014).       Those cases involved experts commenting—directly or

indirectly—on the credibility of accusers in child sexual abuse prosecutions.

Brown, 856 N.W.2d at 689 (holding expert impermissibly vouched for witness’s

credibility by opining that “investigation [was] clearly warranted”); Dudley, 856

N.W.2d at 677 (holding psychologist indirectly vouched for child’s credibility when

expert testified child’s symptoms were consistent with sexual abuse trauma);

Jaquez, 856 N.W.2d at 665 (concluding expert indirectly vouched for witness in

stating child’s demeanor was consistent with being repeatedly traumatized). The

problem in all three cases was the appearance of a scientific “stamp of approval”
                                          8


bestowed upon the version of events offered by the child witness, “even though an

expert cannot accurately opine when a witness is telling the truth.” Dudley, 856

N.W.2d at 677; accord Brown, 856 N.W.2d at 689; Jaquez, 856 N.W.2d at 665.

       What happened here was not impermissible vouching. Nurse Grier did not

testify regarding any statements made by E.B. at the hospital or at trial; in fact, the

record does not indicate Grier was even present for E.B.’s testimony. Rather Grier

explained the impact fear commonly has on a victim’s reaction to being sexually

assaulted and the “fight-or-flight” concept triggered by traumatic situations.

Experts may testify regarding the “typical symptoms exhibited by a person after

being traumatized.” See Dudley, 856 N.W.2d at 676 (citing State v. Gettier, 438

N.W.2d 1, 6 (Iowa 1989)). Such opinion evidence is admissible as long as it avoids

any direct comment on the experience of the witness at issue and only generally

addresses victims of sexual abuse. Id.        Because the nurse’s testimony did not

amount to an improper opinion on E.B.’s credibility, trial counsel had no impetus

to object on different grounds. See State v. Ray, 516 N.W.2d 863, 866 (Iowa 1994)

(“It is axiomatic that ineffectiveness of counsel may not be predicated on the filing

of a meritless motion.”).

       2.     Single-Photo Identification Process

       In his supplemental brief, Lewis argues trial counsel should have objected

to the detective’s testimony recounting E.B.’s positive identification of her attacker

from a single photograph.      Lewis contends the procedure was impermissibly

suggestive under Neil v. Biggers, 409 U.S. 188, 199–200 (1972), and counsel

should have moved to exclude her identification at trial.           We find counsel

appropriately handled the identification issue. Counsel vigorously cross examined
                                           9


E.B. about the fact she did not see her attacker’s face, her original faulty

identification of a different suspect, and the six-month delay before the detectives

showed her the photograph of Lewis. Counsel also cross examined the detective

about E.B.’s emotional state and the timing or her positive identification of Lewis

from the single photograph. Counsel’s efforts fell within the normal range of

competency. See State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (reiterating

defendants are not entitled to “perfect representation”).

       Lewis also fails to show he was prejudiced by counsel’s omission. The

State presented strong evidence Lewis committed the crimes—even without E.B.’s

positive identification. In June 2015, Lewis lived and worked just a few blocks from

E.B.’s residence, and her attacker told her that he admired her when he was

walking by the house. Lewis was not at work the night of the crimes. He moved

to Minnesota about a week later. And most significantly, Lewis’s DNA in the form

of seminal fluid with spermatozoa was found in and around E.B.’s vagina. Lewis

cannot show a reasonable probability of a different outcome had trial counsel

objected to her in-court identification.

       B.     Sufficiency of the Evidence

       Lewis contends the State did not present sufficient evidence to prove him

guilty of first-degree burglary and third-degree sexual abuse. When examining his

contention, we decide if the jury’s verdicts are supported by substantial evidence

in the record, viewing the evidence in the light most favorable to the State. See

Kelso-Christy, 911 N.W.2d at 666. To qualify as “substantial,” the evidence must

be capable of convincing rational jurors that Lewis was guilty beyond a reasonable

doubt. See id.
                                        10


      Lewis raises piecemeal complaints about the strength of the State’s case—

mentioning police testimony about E.B.’s description of her attacker, officers’

attempts to collect fingerprints, alleged inconsistencies between E.B.’s testimony

at the first and second trials, and E.B.’s identification of him from “a lone

photograph.” He also asserts the presence of his DNA “is not evidence of a crime.”

      The credibility of E.B.’s identification and any inconsistencies in the

evidence were for the jury to sort out. See State v. Williams, 695 N.W.2d 23, 28

(Iowa 2005). Given the totality of the evidence, the jurors reasonably rejected any

inference the sex act—established by the presence of Lewis’s DNA on the swabs

collected from E.B.—was consensual. The State’s evidence revealed E.B. did not

know Lewis and was shaken by his presence in her home in the early morning

hours. Similarly, the jury was free to believe E.B.’s testimony that Lewis did not

have right, license or privilege to enter her home before committing the sex act.

We find substantial evidence in the record to support Lewis’s convictions.

      C.     Ex Post Facto Challenge to Sentence

      Our federal and state constitutions both forbid ex post facto laws. U.S.

Const. art. I, § 10; Iowa Const. art. I, § 21; See also Lopez, 907 N.W.2d at 122.

Those provisions prevent courts from imposing new or harsher punishment

enacted by the legislature after the defendant already committed the conduct. See

State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005).

      Lewis claims his life sentence under Iowa Code section 902.14 violates the

ex post facto clauses. This kind of illegal sentence challenge may be raised at any

time. See Lopez, 907 N.W.2d at 122. The recidivist statute at issue went into

effect on July 1, 2005, but allows the use of previous offenses which occurred
                                          11

before that date.   See Iowa Code § 902.14(2). Section 902.14 does not punish

Lewis for his 1991 convictions, but instead as a repeat offender for the June 2015

sexual abuse of E.B. See State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999) (“[T]he

enhancement of punishment is for the pending offense, not the previous

offenses.”). Accordingly, Lewis has not suffered an ex post facto violation.

       D.     Jury Selection

       The United States Supreme Court has recognized a right of access to jury

selection proceedings in a criminal trial. Press-Enterprise v. Superior Court, 464

U.S. 501, 510 (1984) (“[T]he primacy of the accused’s right is difficult to separate

from the right of everyone in the community to attend the voir dire which promotes

fairness.”).7 A party may overcome the presumption of openness by showing “an

overriding interest based on findings that closure is essential to preserve higher

values and is narrowly tailored to serve that interest.” Id.

       In his supplemental brief, Lewis argues the district court violated his right to

a public trial by allowing limited voir dire of potential jurors in chambers. Lewis did

not object to this process at trial and does not raise the claim as ineffective

assistance of counsel on appeal. Accordingly, the claim is not properly presented

for our review. See State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (“The rule

of error preservation applies with equal strength to constitutional issues.”).




7
  While a majority of the Supreme Court determined voir dire was included within the
protections provided by the public trial provision of the Sixth Amendment, a special
concurrence explained the right of access being upheld was under the First Amendment.
Press-Enterprise, 464 U.S. at 516 (Stevens, J., concurring).
                                        12




       IV.    Conclusion

       We reject appellate counsel’s claim concerning trial counsel’s failure to

object to expert testimony. We also reject the ineffective-assistance-of-counsel

claim raised by Lewis in his supplemental brief concerning identification testimony.

In addition, we decline to grant relief on his remaining self-represented claims.

       AFFIRMED.
