                     IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1984
                              Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS AARON INGRAM,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Fremont County, Gregory W.

Steensland, Judge.



       Thomas Ingram appeals from his convictions and sentences for sexual

abuse in the third degree, assault, and lascivious acts with a child following a jury

trial. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Kristin A.

Guddall (until withdrawal), Assistant Attorneys General, for appellee.




       Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       Thomas Ingram appeals from his convictions and sentences for sexual

abuse in the third degree, assault, and lascivious acts with a child following a jury

trial. He argues the district court abused its discretion by admitting the child

victim’s diary into evidence and his trial counsel rendered ineffective assistance

in failing to object to impermissible vouching testimony by the expert witness.

Upon our review, we affirm.

       I.     Background Facts and Proceedings

       In September 2014, the State filed a trial information charging Ingram with

two counts of sexual abuse in the third degree, two counts of lascivious acts with

a child, and two counts of indecent contact with a child, stemming from

allegations Ingram sexually abused his twelve-year-old step-daughter on July 11

and August 29, 2014.       Prior to trial, the State dismissed the two counts of

indecent contact with a child.

       In September 2015, a jury convicted Ingram of one count of sexual abuse

in the third degree, a class “C” felony, in violation of Iowa Code section

709.4(1)(a) (2014), for conduct occurring on July 11; one count of assault (a

lesser-included offense of third-degree sexual abuse), a simple misdemeanor, in

violation of section 708.2(6), regarding conduct occurring on August 29; and

lascivious acts with a child, a class “D” felony, in violation of section 709.8(2)(b),

concerning conduct occurring on July 11. The jury found Ingram not guilty of

lascivious acts with a child for conduct occurring on August 29.

       In October, the district court entered judgment of conviction and

sentenced Ingram to indeterminate terms of imprisonment for no more than ten
                                         3


years on the sexual-abuse charge, no more than five years on the charge of

lascivious acts with a child, and not to exceed thirty days in jail for the assault

charge, with credit for time served. Ingram appeals.

       II.    Scope and Standard of Review

       We review a district court’s evidentiary rulings for an abuse of discretion.

State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). An abuse of discretion

occurs “[w]hen the district court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” State v. Dudley, 856

N.W.2d 668, 675 (Iowa 2014). A ground or reason is untenable if it is “based on

an erroneous application of the law or not supported by substantial evidence.”

Id. Even if there has been an abuse of discretion, we need not reverse if the

inclusion or exclusion was harmless to the defendant. State v. Reynolds, 765

N.W.2d 283, 288 (Iowa 2009), overruled on other grounds by Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 708 (Iowa 2016). “An erroneous evidentiary ruling is

harmless if it does not cause prejudice.” State v. Redmond, 803 N.W.2d 112,

127 (Iowa 2011).      “[U]nder [Iowa Rule of Evidence] 5.103(a) we presume

prejudice—that is, a substantial right of the defendant is affected—and reverse

unless the record affirmatively establishes otherwise.”     State v. Sullivan, 679

N.W.2d 19, 30 (Iowa 2004). Rulings on the admissibility of hearsay evidence are

reviewed for correction of errors at law. State v. Buenaventura, 660 N.W.2d 38,

50 (Iowa 2003).

       We review claims of ineffective assistance of counsel de novo because

the claims implicate the defendant’s Sixth Amendment right to counsel. State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).              Generally, we preserve
                                          4


ineffective-assistance-of-counsel    claims   for   possible   postconviction-relief

proceedings when a more thorough record can be developed and counsel is

given an opportunity to explain his or her conduct. State v. Biddle, 652 N.W.2d

191, 203 (Iowa 2002). However, an ineffective-assistance claim may be raised

and decided on direct appeal when the record is adequate to address the claim.

Iowa Code § 814.7(2), (3).

         III.   Analysis

                A.    Diary

         Ingram claims the district court abused its discretion by admitting M.H.’s

diary into evidence and the error was not harmless. The State contends error

was not preserved on this issue.       Anticipating the State’s argument, Ingram

alternatively claims his trial counsel rendered ineffective assistance in failing to

object to the admission of the diary because it contained hearsay. See Iowa R.

Evid. 5.802. Ingram also complains his trial counsel should have argued that,

even if the evidence was relevant and admissible, the probative value was

substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid.

5.403.

         Ingram has adequately raised this issue under the ineffective-assistance-

of-counsel rubric. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)

(“Ineffective-assistance-of-counsel claims are an exception to the traditional

error-preservation rules.”). The record is adequate to address Ingram’s claims

on direct appeal. See Iowa Code § 814.7(2), (3).

         To succeed on a claim of ineffective assistance of counsel, Ingram must

show by a preponderance of the evidence: “(1) his trial counsel failed to perform
                                        5

an essential duty, and (2) this failure resulted in prejudice.”    Thorndike, 860

N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012));

accord Strickland v. Washington, 466 U.S. 668, 687 (1984). “Under the first

prong, ‘we measure counsel’s performance against the standard of a reasonably

competent practitioner.’” Thorndike, 860 N.W.2d at 320 (quoting State v. Clay,

824 N.W.2d 488, 495 (Iowa 2012)). “Under the second prong, the [defendant]

must establish that prejudice resulted from counsel’s failure to perform an

essential duty.” Id. Failure to prove either prong is fatal to the claim. See State

v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006). In examining Ingram’s claims,

we presume trial counsel performed their duties competently. See Thorndike,

860 N.W.2d at 320.

      The State entered into evidence M.H.’s diary containing entries written by

M.H. on July 10 and July 11, 2014. M.H. testified at trial that she wrote in her

diary immediately after Ingram allegedly abused her. On July 10, M.H. wrote:

               Hey I feel like shit. I hate keeping secrets from my mom.
      Well I don’t know how to put it but here it goes my stepdad has
      been raping me when my mom is at the stores and at the gas
      [stations].
               [A]nd I want to tell my mom but she loves him and she prbly
      thanks Im lying Mom if ur reading this I’m srry I didn’t tell you and I
      love you and Im not lying I woldn’t lyie about this shit yes I’m
      starting to cry. What are we gonna do about this what if he does
      this to my sisters!! There to [young] and I love theme and you and
      if u read this and dont leave him It’s not gonna stop with me Srry
      but its true.
               We can go to the farm or go some where eles I just want to
      leave I dont know were but this what he said if me and your mom
      split up than your Aunt is gonna be the first I kill!!
               Im srry thats all I can say but I wanted to run away sence the
      first time he started touching me but I didn’t cause I couldn’t do that
      to you. Can I run away Ill keep in touch with you I promise and that
      scare you acked about was from me cuting my self so are the other
      scares on my arms.
                                         6


              Some ppl in school know that i cutt my self I just want to
       leave and get away and I Don’t want to see him again the last time
       he raped me was a colp days ago Iv been though a lot and Im still
       here I dont want to be but I’m not gonna do that yet!!! Ill tell you
       befor I do Mom Im srry that you had to find out this way!!! but I
       could tell you no other way!!!

       On July 11, M.H. wrote: “When mom left he raped me again and I was on

my period he isn’t gonna stop….ugh.”

       At trial, thirteen-year-old M.H. testified Ingram had “raped” her at least

twice. When asked to define rape, she stated, “He sexually touched me without

me saying it was okay.” She testified he touched her vagina with his hands and

his penis while she was in her bedroom and it was dark out. She testified she

told him to stop, and he put his hand over her mouth. She testified it hurt her

vagina. She also testified her mother was at the gas station on one occasion and

was sleeping the other time. M.H. testified she could not tell her mother about

the alleged abuse because her mother was in a relationship with Ingram and had

just had a baby with him. She also testified she did not tell her mother because

she was scared and Ingram had threatened to kill her family, starting with her

aunt, if M.H. told anyone. She further testified she did not think anyone would

believe her if she told.

       Ingram contends his trial counsel should have objected to M.H.’s diary as

hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial . . . , offered in evidence to prove the truth of the matter

asserted.” Iowa R. Evid. 5.801(c). Hearsay is not admissible, unless it fits within

one of the recognized exceptions.      Iowa R. Evid. 5.802; Buenaventura, 660

N.W.2d at 51. Under Iowa Rule of Evidence 5.803(3), a hearsay statement is
                                         7


admissible when it reflects on “the declarant’s then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan, motive, design,

mental feeling, pain, and bodily health),” but not when it’s “a statement of

memory or belief to prove the fact remembered or believed unless it relates to

the execution, revocation, identification, or terms of declarant’s will.”      “The

admission of such evidence under this exception is dependent upon the

relevancy of the declarant’s then existing state of mind, emotion, sensation, or

physical condition.”    State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (citing

Buenaventura, 660 N.W.2d at 51).

       M.H.’s diary entries demonstrate her “[t]hen existing mental, emotional, or

physical condition” at the time she wrote them—that she was scared of Ingram,

she feared for the safety of her family and herself, she wanted to run away from

home to get away from Ingram, and she was afraid Ingram would sexually abuse

her younger sisters. Her state of mind was relevant to show she did not consent

to the sex act, but rather, “[t]he act [was] done by force or against [her] will.”

Iowa Code § 709.4(a).

       Ingram also complains his trial counsel should have objected to M.H.’s

diary as unfairly prejudicial. “Evidence which is not relevant is not admissible.”

Iowa R. Evid. 5.402. Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Iowa R.

Evid. 5.401. “Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice . . . .” Iowa R. Evid.

5.403. Evidence is unfairly prejudicial if it “appeals to the jury’s sympathies,
                                          8


arouses its sense of horror, provokes its instinct to punish, or triggers other

mainsprings of human action [that] may cause a jury to base its decision on

something other than the established propositions in the case.”            State v.

Henderson, 696 N.W.2d 5, 10–11 (Iowa 2005) (citation omitted).

       Ingram claims the diary was unfairly prejudicial because it was “an overly

dramatic attempt to manipulate . . . M.H’s mother” and contained “extremely

prejudicial statements which resulted in an unfair verdict.” The probative value of

M.H.’s diary was not “substantially outweighed” by any unfair prejudice because

it showed her dislike of the abuse and desire for the abuse to end, allowing the

jury to conclude Ingram sexually abused her by force or against her will. See

Iowa Code § 709.4(a). Furthermore, a victim’s account of sexual abuse is not

unfairly prejudicial simply because the nature of the crime itself is disturbing.

See State v. Putman, No. 12-0022, 2013 WL 3456973, at *4 (Iowa Ct. App. July

10, 2013); State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993). Thus,

Ingram’s trial counsel did not render ineffective assistance in failing to object to

the diary as hearsay or as unfairly prejudicial.

       Moreover, Ingram has failed to show he was prejudiced by any failure of

trial counsel to object to the admission of the diary on grounds of hearsay or

unfair prejudice because the evidence was merely cumulative.          See State v.

Enderle, 745 N.W.2d 438, 441 (Iowa 2007); State v. Hildreth, 582 N.W.2d 167,

170 (Iowa 1998); see also Strickland, 466 U.S. at 694 (holding that, in order to

establish prejudice, a defendant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different”).
                                           9


       Accordingly, we do not find Ingram’s trial counsel rendered ineffective

assistance in failing to object to the admission of M.H.’s diary as hearsay or as

unfairly prejudicial.

               B.       Vouching

       Ingram claims the district court erred in allowing improper testimony by an

expert witness vouching for the credibility of the child victim. He also contends

his trial counsel provided ineffective assistance in failing to object to all of the

improper testimony and prejudice resulted. The record is adequate to address

Ingram’s claim on direct appeal. See Iowa Code § 814.7(2), (3).

       Our supreme court has recently elaborated on what constitutes vouching

for the credibility of a witness, both directly and indirectly.      See Dudley, 856

N.W.2d at 676–77; State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014); State v.

Jaquez, 856 N.W.2d 663, 665–66 (Iowa 2014). The court has explained:

       Although we are committed to the liberal view on the admission of
       psychological evidence, we continue to hold expert testimony is not
       admissible merely to bolster credibility. Our system of justice vests
       the jury with the function of evaluating a witness’s credibility. The
       reason for not allowing this testimony is that a witness’s credibility
       “is not a ‘fact in issue’ subject to expert opinion.” Such opinions not
       only replace the jury’s function in determining credibility, but the jury
       can employ this type of testimony as a direct comment on
       defendant’s guilt or innocence.          Moreover, when an expert
       comments, directly or indirectly, on a witness’s credibility, the
       expert is giving his or her scientific certainty stamp of approval on
       the testimony even though an expert cannot accurately opine when
       a witness is telling the truth. In our system of justice, it is the jury’s
       function to determine the credibility of a witness.

Dudley, 856 N.W.2d at 676–77 (citations omitted); see also Brown, 856 N.W.2d

at 689; Jaquez, 856 N.W.2d at 665.
                                        10


      Ingram challenges statements made by an expert witness during the

State’s direct examination. On our review, we address each statement Ingram

“claims as objectionable to determine whether the State crossed the line.”

Dudley, 856 N.W.2d at 678.

      M.H. did not disclose the alleged abuse to her mother but instead sent a

text message disclosing the allegations to Ingram’s friend. At trial, M.H. testified

she did not tell her mother about the alleged abuse because she was scared and

Ingram had threatened to kill her family if she told anyone. M.H. stated she also

did not tell her mother because her mother was in a relationship with Ingram and

had recently given birth to his child. M.H. testified she did not know if anyone

would believe her. M.H. acknowledged she initially denied the allegations of

abuse when questioned by the police but later admitted them when the officer

asked about the text messages M.H. had sent to Ingram’s friend.

      Meghan Jones, a mental-health therapist employed by Project Harmony,

testified generally about child sexual abuse. She explained young children might

delay disclosure because they are unable to fully understand the abuse. She

also testified that older children—children ages eleven, twelve, or young teens—

may not disclose abuse right away due to threats made by the abuser toward the

child or other family members.      She testified older children may also delay

disclosure because the abuser threatens to tell others about the abuse and the

victim feels horrific shame or feels responsible for it.        Jones stated that

sometimes the abuser is in a relationship with the child’s caregiver and the child

worries about causing stress to the caregiver, such as loss of child care, financial

support, or other support. She testified it was “a pretty common dynamic” that
                                        11


children would refrain from disclosing abuse because the child is worried his or

her whole life might change. Jones testified a child does not often disclose the

abuse to a nonoffending parent but instead often discloses the abuse to a

teacher or a peer.    Jones also stated children may initially deny any abuse

occurred for various reasons, including fear or feeling overwhelmed by

disclosure. She testified children also worry the person they tell will not believe

them. Jones noted research, and not just experience, supported her testimony.

      Ingram contends Jones’s statements indirectly commented on M.H.’s

credibility because the examples she gave were close to the facts in this case.

At one point, Ingram’s trial counsel objected to the expert’s testimony, stating

they were “getting beyond the Dudley language” and “making it specific to this

case.” The district court overruled the objection and permitted Jones to continue

testifying generally about child sexual abuse. “We allow an expert witness to

testify generally that victims of child abuse display certain demeanors.” Jaquez,

856 N.W.2d at 666 (citing Dudley, 856 N.W.2d at 676; State v. Gettier, 438

N.W.2d 1, 4 (Iowa 1989)). “However, when an expert witness testifies a child’s

demeanor or symptoms are consistent with child abuse, the expert crosses that

very thin line and indirectly vouches for the victim’s credibility, thereby

commenting on the defendant’s guilt or innocence.” Id.

      Our courts have generally “permitted an expert witness to testify regarding

the ‘typical symptoms exhibited by a [victim of sexual abuse],’” why a “child’s

recollection of the events may seem inconsistent,” and “why child[] victims may

delay reporting their sexual abuse” because it can “assist the jury in

understanding some of the seemingly unusual behavior child victims tend to
                                         12

display.” Dudley, 856 N.W.2d at 676–77 (citations omitted); see also Iowa R.

Evid. 5.702 (permitting expert opinion testimony “if . . . specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue”).

But courts should “reject expert testimony that either directly or indirectly renders

an opinion on the credibility or truthfulness of a witness.” State v. Myers, 382

N.W.2d 91, 97 (Iowa 1986).         Indeed, expert witnesses are prohibited from

providing statistics suggesting children do not lie about sexual abuse. Id.; see

also State v. Tracy, 482 N.W.2d 675, 678 (Iowa 1992).

       Here, Jones discussed generally the symptoms or behaviors common to

children who have experienced sexual abuse.              She explained behaviors

exhibited by both young children and young teens. She did not provide an expert

opinion regarding “every significant purported and disputed fact” in this case “as

being consistent with the statistics and reports.” State v. Pitsenbarger, No. 14-

0060, 2015 WL 1815989, at *8 (Iowa Ct. App. Apr. 22, 2015); see also State v.

Tjernagel, No. 15-1519, 2017 WL 108291, at *7–8 (Iowa Ct. App. Jan. 11, 2017).

She did not testify specifically regarding M.H., her statements or her demeanor,

or any facts in this case. Although Jones’s testimony may arguably have “walked

the thin line between proper expert testimony and vouching for the credibility of

the victim[,] [it] did not cross it.” State v. Lusk, No. 15-1294, 2016 WL 4384672,

at *4 (Iowa Ct. App. Aug. 17, 2016) (Danilson, C.J., concurring specially). The

question of M.H.’s credibility was still left to the determination of the jury. Thus,

the district court did not err in admitting, and trial counsel did not render

ineffective assistance in failing to object to, the expert witness’s challenged

testimony. See State v. Shanahan, 712 N.W.2d at 138.
                                         13


       Accordingly, we affirm Ingram’s convictions and sentences for sexual

abuse in the third degree, assault, and lascivious acts with a child.

       AFFIRMED.
