                     IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0562
                                 Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RUBEN DEASES,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Story County, Bethany J. Currie,

Judge.



       Ruben Deases, initially sentenced as a minor for first-degree murder,

appeals his re-sentencing of life in prison with the possibility of parole after serving

a minimum of forty years in prison. AFFIRMED.




       John L. Dirks of Dirks Law Firm, Ames, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




       Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
                                         2


VAITHESWARAN, Presiding Judge.

       A jury found Ruben Deases guilty of first-degree murder in connection with

the 1989 death of his brother’s girlfriend. Deases “was seventeen when the

murder occurred.” See State v. Deases, 476 N.W.2d 91, 94 (Iowa Ct. App. 1991).

Under then-existing law, Deases was committed to life in prison without parole.

This court affirmed his judgment and sentence. Id. at 98. The sentencing laws for

juveniles convicted of first-degree murder evolved over time, and Deases was

eventually re-sentenced to life with the possibility of parole after forty years. On

appeal, Deases contends the district court abused its discretion in imposing a term

of years prior to parole eligibility rather than granting him immediate parole

eligibility as he requested.

I.     Background Law and Proceedings

       In 2012, the United States Supreme Court held “the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without possibility of

parole for juvenile offenders.” See Miller v. Alabama, 567 U.S. 460, 479 (2012).

The court did not consider whether “the Eighth Amendment requires a categorical

ban on life without parole for juveniles” but stated the court was required “to take

into account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Id. In response, Iowa’s

governor commuted Deases’ sentence to life in prison with the possibility of parole

after sixty years.

       Deases filed a motion to correct an illegal sentence.       He alleged the

commuted sentence also was unconstitutional.        The district court stayed the

proceedings until the issue could be resolved by the Iowa Supreme Court in
                                             3


pending appeals.         The supreme court held the commuted sentence

unconstitutional. See State v. Ragland, 836 N.W.2d 107, 121 (Iowa 2013) (“[T]he

unconstitutional imposition of a mandatory life-without-parole sentence is not fixed

by substituting it with a sentence with parole that is the practical equivalent of a life

sentence without parole.”). The court later held life without parole for juveniles

categorically unconstitutional under the Iowa Constitution. See State v. Sweet,

879 N.W.2d 811, 839 (Iowa 2016) (“[W]e adopt a categorical rule that juvenile

offenders may not be sentenced to life without the possibility of parole under article

I, section 17 of the Iowa Constitution.”).

       Then came State v. Lyle 854 N.W.2d 378, 400 (Iowa 2014), as amended

(Sept. 30, 2014). The court there held “all mandatory minimum sentences of

imprisonment for youthful offenders . . . unconstitutional under the cruel and

unusual punishment clause in article I, section 17 of our constitution.” Id. The

court enumerated several factors “to be used by the district court . . . on

resentencing”:

       (1) the age of the offender and the features of youthful behavior, such
       as “immaturity, impetuosity, and failure to appreciate risks and
       consequences”; (2) the particular “family and home environment”
       that surround the youth; (3) the circumstances of the particular crime
       and all circumstances relating to youth that may have played a role
       in the commission of the crime; (4) the challenges for youthful
       offenders in navigating through the criminal process; and (5) the
       possibility of rehabilitation and the capacity for change.

Id. at 404 n.10 (citations omitted). The court emphasized that they were “all

mitigating factors, and they cannot be used to justify a harsher sentence.” Id. at

402 n.8; see also State v. Roby, 897 N.W.2d 127, 144 (Iowa 2017) (“First, the

factors generally serve to mitigate punishment, not aggravate punishment.”); State
                                          4

v. Seats, 865 N.W.2d 545, 556 (Iowa 2015), holding modified by State v. Roby,

897 N.W.2d 127 (Iowa 2017) (“The sentencing judge should consider these family

and home environment vulnerabilities together with the juvenile’s lack of maturity,

underdeveloped sense of responsibility, and vulnerability to peer pressure as

mitigating, not aggravating, factors.”); State v. Null, 836 N.W.2d 41, 75 (Iowa 2013)

(“[T]he typical characteristics of youth, which include immaturity, impetuosity, and

poor risk assessment, are to be regarded as mitigating, not aggravating factors.”).

       The legislature subsequently enacted Iowa Code section 902.1(2)(a)

(2019), prescribing the following sentences for juvenile defendants convicted of

first-degree murder:

              (1) Commitment to the director of the department of
       corrections for the rest of the defendant’s life with no possibility of
       parole unless the governor commutes the sentence to a term of
       years.
              (2) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life with the
       possibility of parole after serving a minimum term of confinement as
       determined by the court.
              (3) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life with the
       possibility of parole.

The supreme court held the first option unconstitutional. See State v. Zarate, 908

N.W.2d 831, 843 (Iowa 2018) (“[W]e hold that Iowa Code section 902.1(2)(a)(1),

which allows the sentencing court to sentence a juvenile offender to life

imprisonment without the possibility of parole is unconstitutional.”). The court

found “the rest of Iowa Code section 902.1(2)(a) . . . constitutional,” reasoning that

the second and third options “allow[] sentencing courts to craft individualized

sentences for each juvenile offender so long as the juvenile offender is first

sentenced to life imprisonment with some option for parole eligibility.” Id. at 844–
                                            5


46.      The court also upheld the constitutionality of legislatively-prescribed

sentencing factors. Id. at 849; see Iowa Code § 902.1(2)(b)(2)(a)–(v).1 However,



1   The provision states:
                (2) In determining which sentence to impose, the court shall
         consider all circumstances including but not limited to the following:
                        (a) The impact of the offense on each victim, as defined
                in section 915.10, through the use of a victim impact
                statement, as defined in section 915.10, under any format
                permitted by section 915.13. The victim impact statement
                may include comment on the sentence of the defendant.
                        (b) The impact of the offense on the community.
                        (c) The threat to the safety of the public or any
                individual posed by the defendant.
                        (d) The degree of participation in the murder by the
                defendant.
                        (e) The nature of the offense.
                        (f) The defendant’s remorse.
                        (g) The defendant’s acceptance of responsibility.
                        (h) The severity of the offense, including any of the
                following:
                                (i) The commission of the murder while
                        participating in another felony.
                                (ii) The number of victims.
                                (iii) The heinous, brutal, cruel manner of the
                        murder, including whether the murder was the result of
                        torture.
                        (i) The capacity of the defendant to appreciate the
                criminality of the conduct.
                        (j) Whether the ability to conform the defendant’s
                conduct with the requirements of the law was substantially
                impaired.
                        (k) The level of maturity of the defendant.
                        (l) The intellectual and mental capacity of the
                defendant.
                        (m) The nature and extent of any prior juvenile
                delinquency or criminal history of the defendant, including the
                success or failure of previous attempts at rehabilitation.
                        (n) The mental health history of the defendant.
                        (o) The level of compulsion, duress, or influence
                exerted upon the defendant, but not to such an extent as to
                constitute a defense.
                        (p) The likelihood of the commission of further offenses
                by the defendant.
                                          6


the court agreed with the defendant that “the district court’s consideration of any

potential aggravating factors set forth in section 902.1(2)(b)(2)(a)–(v) shall align

with our juvenile sentencing jurisprudence so as not to overwhelm the mitigating

factors associated with youth, especially the five factors of youth set forth in Lyle.”

Zarate, 908 N.W.2d at 849.

       At the end of 2018, Deases contacted the district court to determine the

status of his previously stayed resentencing request. The court scheduled and

held an evidentiary hearing at which the State and defense each called an expert



                      (q) The chronological age of the defendant and the
              features of youth, including immaturity, impetuosity, and
              failure to appreciate risks and consequences.
                      (r) The family and home environment that surrounded
              the defendant.
                      (s) The circumstances of the murder including the
              extent of the defendant’s participation in the conduct and the
              way familial and peer pressure may have affected the
              defendant.
                      (t) The competencies associated with youth, including
              but not limited to the defendant’s inability to deal with peace
              officers or the prosecution or the defendant’s incapacity to
              assist the defendant’s attorney in the defendant’s defense.
                      (u) The possibility of rehabilitation.
                      (v) Any other information considered relevant by the
              sentencing court.
Iowa Code § 902.1(2)(b)(2)(a)–(v). Section 902.1(3)(a) further provides:
       3. a. Notwithstanding subsections 1 and 2, a defendant convicted of
       a class “A” felony, other than murder in the first degree in violation of
       section 707.2, and who was under the age of eighteen at the time
       the offense was committed shall receive one of the following
       sentences:
              (1) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life with the
       possibility of parole after serving a minimum term of confinement as
       determined by the court.
              (2) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life with the
       possibility of parole.
Id. § 902.1(3)(a)(1)–(2).
                                          7


witness. Deases also testified briefly. As noted, the court resentenced him to life

in prison “with the possibility of parole after serving a minimum of forty years in

prison.”

II.    Analysis

       Deases asserts “the court placed undue weight on the nature of the crime

and did not adequately balance that with all of the evidence of [his] rehabilitation.”

Our review of the court’s ruling is for an abuse of discretion. See State v. Crooks,

911 N.W.2d 153, 161 (Iowa 2018).

       The district court considered the Lyle factors as well as the twenty-two

factors prescribed by subsection 902.1(2)(b)(2)(a) through (v) and delineated the

factors deemed to be mitigating or aggravating.              The court began by

acknowledging Deases’ age was a mitigating factor notwithstanding his

chronological proximity to adulthood. See Roby, 897 N.W.2d at 145 (“[A]ge is not

a sliding scale that necessarily weighs against mitigation the closer the offender is

to turning eighteen years old at the time of the crime.”). The court next addressed

Deases’ “[i]mmaturity and failure to appreciate risks and consequences.”         After

summarizing the trial testimony concerning Deases’ plan to have a juvenile commit

the crime to avoid the severity of an adult sentence, the court stated,

       The fact the brothers had a conversation about the risks and
       consequences and decided that a brother under age 18 should do it
       certainly appears to the Court that [Deases] did appreciate the
       consequences of his actions, although he may not have known
       specifically what sentence he faced. The Supreme Court has
       directed sentencing courts to consider this as a mitigating factor. The
       Court has trouble considering it in mitigation of the offense but will
       not consider it as an aggravating factor when deciding an appropriate
       sentence.
                                          8


The court also considered Deases’ intellectual and mental capacity “as mitigating

circumstances in this case.”      As for “[d]uress, influence, familial, and peer

pressure,” the court stated,

      The Supreme Court has again directed sentencing judges to
      consider duress, influence, familial, or peer pressure as a mitigating
      factor, but the Court has serious difficulty in finding this to be a
      mitigating factor under the specific circumstances of this particular
      case. Essentially, the Court would have to take [Deases’] self-
      serving trial testimony at face value, which the jury clearly did not and
      which the Court does not, having read the transcript. However, the
      Court will not consider it as an aggravating factor when deciding an
      appropriate sentence.

Turning to “[f]amily and home environment, including abuse, neglect, drug or

alcohol abuse, exposure to violence, lack of supervision, lack of appropriate

education, and mental health history,” the court found “plenty of mitigating

circumstances under this factor.”

      The court proceeded to the “[t]he circumstances of the crime, nature and

severity of the offense, the extent of Mr. Deases’ participation, the heinous, brutal,

or cruel manner of the murder.” After describing the “incredibly horrific” nature of

the crime, the court stated,

      The Supreme Court has directed sentencing courts to not allow the
      aggravating circumstances of the murder overwhelm the mitigating
      factors associated with youth. However, the Supreme Court has also
      held that nothing prevents me from considering additional or
      aggravating factors relevant to the particular case. The Court finds
      it appropriate to consider the sequence of events immediately after
      the murder as aggravating circumstances. [Deases] sexually
      abused [the woman’s] body after she was dead. Although
      [another brother] cut off [the woman’s] head, [Deases] helped clean
      up by placing her head into the garbage bags, going with [the brother]
      to dispose of the head, driving over it, and throwing it into a ditch near
      a gravel road. He also accompanied [the brother] and helped get a
      TV box from a friend to hold the rest of [the woman’s] body, helped
      [his brother] tie her up, wrap her body in garbage bags, tie those
      bags with more ropes, and went with [his brother] to dump [the
                                           9


       woman’s] body in a lake. The head was found and remained
       unidentified for several days before the body was located.

       The court also addressed “[t]he possibility of rehabilitation, previous efforts

at rehabilitation, the extent of a juvenile delinquency history, and the likelihood that

[he would] commit further offenses.” The court catalogued the evidence on this

factor including the opinion of the State’s expert that “that Mr. Deases’ behaviors

are consistent with psychopathy which cannot be rehabilitated” and the opinion of

the defense expert that “antisocial personality traits tend to abate in a person’s

40s.” However, the court did not make a credibility finding as to either expert.

       Finally, the court examined, Deases’ “demonstration of remorse and

acceptance of responsibility.” The court stated,

       At the trial, Mr. Deases denied and minimized his involvement. At
       the original sentencing hearing, Mr. Deases again said he had not
       killed or intended to kill [the woman]. He denied responsibility and
       pointed his finger at his brother . . . as the sole person responsible
       for the murder. Mr. Deases has had nearly 30 years to reflect on his
       conduct and his participation. He has had enough time while
       incarcerated to improve himself and he has apparently chosen not to
       do so. Since the U.S. Supreme Court announced the change in the
       law in 2012 or at least since 2013 when the Iowa Supreme Court
       announced that all the juveniles sentenced under the previous
       version of the Code would be resentenced, Mr. Deases has known
       this day was coming, and he could have put himself in the best
       position for the Court’s consideration. The Court can find nothing in
       Mr. Deases’ actions or statements to be a mitigating factor.
       Specifically, he again today denies that he was involved and that he
       was only present and that he was there after the fact. There is no
       remorse in that statement. He stated, I’m the one doing everything
       in a cell, unquote, which shows the Court that he’s sorry that he got
       caught, not that he’s sorry he committed this murder.

       Deases argues the district court’s focus on “the circumstances immediately

following the offense rather than those a few minutes or hours earlier” did not

lessen the concerns expressed by the United States and Iowa Supreme Court in

Roper and Null that the heinous nature of a crime could cause courts to overlook
                                           10

the factors of youth. He notes that “all of the Lyle factors serve to mitigate [his]

proper punishment.”

       We agree Lyle’s direction to treat “the circumstances of the crime” as

mitigating was broad enough to encompass the circumstances immediately

following commission of the crime. Applying these factors in Roby, the court

stressed that the circumstances of the crime “do not necessarily weigh against

mitigation when the crime caused grave harm or involved especially brutal

circumstances.” 897 N.W.2d at 146. The court admonished “judges [not to]

necessarily use the seriousness of a criminal act, such as murder, to conclude the

juvenile falls within the minority of juveniles who will be future offenders or are not

amenable to reform.” Id. The court noted “delinquency is normally transient, and

most juveniles will grow out of it by the time brain development is complete.” Id.

at 147.

       Recently, however, the court applied the circumstances of the crime and

the prospects of rehabilitation as aggravating factors. In Goodwin v. Iowa District

Court for Davis County, 936 N.W.2d 634, 647 (Iowa 2019), the court stated, “Our

sentencing courts can and should consider the heinous nature of the crime in

evaluating whether to impose a mandatory minimum sentence.” With respect to

the prospects of rehabilitation, the court cited an expert opinion that the juvenile

would benefit from rehabilitative programs available in a prison setting. Id.

       We are left with a legal landscape that requires resentencing courts to treat

the Lyle factors, including the circumstances of the crime and the prospect of

rehabilitation, as mitigating, yet allows courts to treat the identical statutory factors

as aggravating. See Iowa Code § 902.1(2)(b)(2)(h), (u). The district court carefully
                                          11


navigated this fraught landscape in addressing the circumstances of the crime.

We conclude the court did not abuse its discretion in evaluating this factor.

       Deases next takes issue with the opinion of the State’s expert. He notes

that “[h]er entire opinion of him was based upon her review of the transcripts of his

trial, which occurred more than 30 years ago,” and “much of her testimony is called

into question by scientific evidence recently cited by the Iowa Supreme Court.”

       Deases’ critique of the expert’s reliance on the trial transcript is well taken.

See Roby, 897 N.W.2d at 145 (noting age and features of youthful behavior “is

most meaningfully applied when based on qualified professional assessments of

the offender’s decisional capacity” and citing the use of “validated assessment

methods” and “an expert’s ‘developmental and clinical knowledge and experience

to integrate [the] information’”) (citing Elizabeth Scott et al., Juvenile Sentencing

Reform in a Constitutional Framework, 88 Temp. L. Rev. 675, 696–97(2016)). The

expert, in no uncertain terms, based her opinion on the trial evidence. She stated,

       I did not personally evaluate [Deases], therefore, I cannot provide
       any definitive diagnosis. What I am saying is that the behavior that
       was described at the trial, the behavior described in the trial
       testimony for which he was found guilty by a jury of his peers is very
       consistent with what we see and think about in psychopathy.

She also stated,

       It is my opinion that the severity of the crime and the demonstrated
       lack of remorse and empathy not only for the victim but for other
       people involved in the crime are much more consistent with a
       psychopathic presentation as opposed to . . . an adolescent who is
       at this unbalanced stage of brain development and makes a bad
       choice in the moment.
                                          12


Despite not having performed “standardized tests” on Deases, she said her opinion

“would have been the same” had she performed those tests, “given the severity of

the behaviors.”

       The expert’s focus on the crime as established in the trial transcript appears

at odds with precedent, including the recent case of Bonilla v. Iowa Board of

Parole, 930 N.W.2d 751, 772 (Iowa 2019). There, the court stated, “The focus of

Graham-Miller is on the dynamic evolving character of the juvenile offender, not

on the static characteristic of the offense.” Bonilla, 930 N.W.2d at 772 (citing Miller

v. Alabama, 567 U.S. 460, 471–73 (2012); Graham v. Florida, 560 U.S. 48, 68–69

(2010)). The court further stated, “[T]he focus of the decision whether to release

a juvenile offender on parole under Graham-Miller cannot be the heinousness of

the underlying offense.” Id. Although Bonilla addressed the role of the parole

board rather than the district court on resentencing, the court cited sentencing

precedent, stating, “[F]rom the beginning of the development of its recent

application of cruel and unusual punishment concepts to juveniles, the Supreme

Court has emphasized that ‘[a]n unacceptable likelihood exists that the brutality or

cold blooded nature of any particular crime would overpower mitigating arguments

based on youth.’” Id. (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).

       While we question the propriety of the State’s expert opinion, we note that

the district court did not rely on her testimony to the exclusion of other record

evidence. The court merely summarized her testimony and that of the defense

expert without finding one or the other more credible. And the court independently

weighed the Lyle and statutory factors. Cf. State v. Majors, 897 N.W.2d 124, 127

(Iowa 2017) (noting court misapplied the factors). Under these circumstances, we
                                           13


conclude the court did not abuse its discretion in considering the opinions of the

State expert.

       In sum, we discern no abuse of discretion in the court’s thorough ruling.

See State v. Crooks, 911 N.W.2d 153, 173 (Iowa 2018) (“The record reveals the

sentencing court addressed a variety of factors in response to the evidence and

argument presented by Crooks, including those Miller/Lyle factors identified by

Crooks. We find no abuse of discretion.”). We affirm Deases’ sentence of life with

the possibility of parole after forty years.

       AFFIRMED.

       Doyle, J., concurs; May, J. concurs specially.
                                             14


MAY, Judge. (concurring specially)

          As the majority explains in its detailed and thoughtful opinion, the district

court’s sentence was supported by the record and consistent with existing

precedent. I wholeheartedly agree there was no abuse of discretion and we should

affirm.

          Still, I respectfully submit we should not question the propriety of the State’s

expert, Dr. Jill Kelderman.         Deases criticizes Dr. Kelderman’s methodology

because, although she reviewed the transcript from Deases’s trial and gained

additional information concerning Deases’s performance in confinement,

Dr. Kelderman did not meet with Deases personally. Yet it is beyond dispute that

Dr. Kelderman is a highly-qualified pediatric neuropsychologist. In her testimony,

Dr. Kelderman was open about her methods and what conclusions those methods

could—or could not—support. For example, on cross-examination, she conceded:

“I did not personally evaluate him, therefore, I cannot provide any definitive

diagnosis.” Still, based on her expertise and the information available to her, she

was able to opine that Deases’s behavior had been “very consistent with what we

see and think about in psychopathy.” And, she explained, her opinions were “not

significantly” affected by the fact she had not conducted a personalized

assessment:

                  Q. Did you perform any standardized tests on Mr. Deases? A.
          I did not. I did not have the opportunity to do that.
                  Q. Do you think that that affects your opinion in this case? A.
          Not significantly. I think it might have fine tuned, maybe refined some
          ideas about his level of intellectual functioning and other aspects of
          cognition. I think at the end of the day—because I did think about
          this issue of not being able to conduct an assessment. I think at the
          end of the day given the severity of the behaviors, multiple
          behaviors—it was pretty profound evidence in my opinion of what we
                                          15


       just talked about in terms of evidence of psychopathy, and so for that
       reason—you know, while the standardized assessment in this
       particular situation may provide a few more refined—more refined
       information about his cognitive profile, at the end of the day I think
       the general opinion would have been the same.

       I have no reservations about the sentencing judge’s ability to analyze this

kind of testimony and determine what weight—if any—it should receive. State v.

Guise, No. 17-0589, 2018 WL 2084846, at *9 (Iowa Ct. App. May 2, 2018)

(McDonald, J., dissenting) (noting “[t]he sentencing court acts within its core

competency in receiving the evidence, determining the appropriate inferences, if

any, to be drawn from the evidence, and determining the weight of the evidence”),

majority decision vacated, 921 N.W.2d 26 (Iowa 2018). And I have found no case

that prescribes any particular methods—such as in-person assessments—

pediatric neuropsychologists must employ before they can testify at a sentencing

hearing. Nor have I found any case that prohibits the use of certain methods—

such as the review of trial transcripts—by testifying pediatric neuropsychologists.

While it is true that State v. Roby, 897 N.W.2d 127, 146–48 (Iowa 2017),

emphasized the value of “expert testimony” in sentencing and, indeed, made

reference to some tools available to experts (e.g., “social maturity scales”), I do not

believe Roby or any other case has dictated what methods a pediatric

neuropsychologist must or must not employ when forming expert opinions.

       Likewise, I have found no case that dictates what opinions a pediatric

neuropsychologist may reach or present in a sentencing hearing. In any event, I

am not concerned by the fact that Dr. Kelderman’s opinions focused substantially

on Deases’s criminal actions. As Goodwin v. Iowa District Court made clear,

“sentencing courts can and should consider the heinous nature of the crime.” 936
                                        16


N.W.2d 634, 647 (Iowa 2019). And I have no fear that evidence of a defendant’s

crime—however heinous—will improperly “overpower mitigating arguments based

on youth,” as the Roper v. Simmons court put it. 543 U.S. 551, 573 (2005). The

Roper court’s concerns were about jurors in death-penalty cases. 543 U.S at 573.

In my view, those concerns have considerably less relevance to our judges.

Iowa’s sentencing judges are regularly called upon to consider all kinds of terrible

circumstances, including the heinous details of defendants’ crimes. And they are

regularly called upon to balance those troubling details against all of the other

evidence and arguments presented—mitigating or otherwise—as they determine

what sentence will “provide maximum opportunity for the rehabilitation of the

defendant” as well as “protection of the community from further offenses by the

defendant and others.” Iowa Code § 901.5 (2019). These are, indeed, central

duties for a sentencing judge. See id. We can and should rely on our judges to

perform these duties properly as they “administer justice according to the law.” Id.

§ 63.6.

       I will end where I should have begun—with the Iowa Constitution itself. As

Justice McDonald recently noted, “There is nothing in the text of the Iowa

Constitution, as originally understood, that prohibits the imposition of a minimum

sentence on a juvenile offender.” Goodwin, 936 N.W.2d at 649 (McDonald, J.,

specially concurring). Likewise, nothing in the text of the Iowa Constitution, as

originally understood, casts doubt on the propriety of Dr. Kelderman’s testimony.

Nor should we.
