                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1143
                              Filed August 27, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES ANTHONY GALBO,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      James Anthony Galbo appeals from the judgment and sentence entered

following a jury verdict finding him guilty of first-degree arson. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

General, John P. Sarcone, County Attorney, and James P. Ward, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Doyle, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.

       James Anthony Galbo appeals from the judgment and sentence entered

following a jury verdict finding him guilty of first-degree arson, in violation of Iowa

Code sections 712.1 and 712.2A (2011). He contends his trial counsel was

ineffective in failing to move to exclude fingerprint evidence. He also challenges

the sufficiency of the evidence to prove his guilt.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       Pastor David Reasby had owned the Lighthouse Baptist Church in Des

Moines for approximately twenty-five years when a fire destroyed the building on

August 24, 2012.      In addition to hosting church services, Reasby used the

building to provide hot meals and short-term shelter to homeless persons. In

exchange for lodging, those who stayed at the church were expected to volunteer

to serve meals and do other work around the church.

       In 2011, the City of Des Moines had filed for an injunction to stop the

church from being used as a homeless shelter, but had taken no other action. At

the time of the fire, Reasby was in arrears on utility and mortgage payments, and

the insurance on the building had lapsed. Reasby claimed he was planning to

sell the church to another minister.

       The facts viewed in the light most favorable to the verdict show Galbo had

been staying at the church in the days leading up to the fire. On the day of the

fire, he had accepted a food delivery there and had been observed on the

property by several people. Ten minutes before the fire was set, Galbo told

another resident, Sandy Hainline, to get out of the church because “something
                                         3



was going to go down.”      Three hours before the fire, he also told a former

resident of the church, Barbara Brooks, “I’m going to burn down the church.” He

made a similar statement to Juan Segovia on the day of the fire.

       Galbo claimed he left the church after seeing a flash and hearing two

bangs.    He stated he put his backpack and a garbage bag containing his

belongings in an alley near a QuickTrip convenience store. Those items were

later recovered inside the QuickTrip. Steve Howell, who had been getting the oil

in his vehicle changed that afternoon, saw Galbo walk up the alley toward the

QuickTrip with a plastic bag in his hand. Howell recalled hearing a commotion

and seeing a fire in the church minutes later. When Galbo walked back toward

the church, Howell described him as “getting a big kick out of the fire,” stating he

used to live at the church and asking to have his picture taken. Galbo told

Howell he had been inside the church when he heard a candle fall and got out.

Galbo further stated to Howell that he was “glad” the church was burning

because he didn’t like Reasby.

       After an investigation, it was determined the fire started in the southwest

corner of the sanctuary—where Galbo reportedly slept—and was intentionally

set. Although, investigators did not discover an accelerant at the scene, the

amount of water used to extinguish the fire likely would have washed away any

traces.

       A new-appearing lighter-fluid can was discovered in the alley, and a partial

fingerprint from the can was matched to Galbo. Four hours after the fire began, a

medic discovered a military-style water or fuel jug flowing down the stream of
                                        4



water pouring out of the church in the wake of the fire department’s efforts to

extinguish the fire. The container held gasoline.

       When Des Moines Police Officer David Murillo responded to the fire, he

observed Galbo standing on the sidewalk along the church and placed him in

custody.       While being interviewed by detectives, Galbo made disparaging

statements about Reasby’s character and claimed everyone in the neighborhood

wanted to burn the church down. He further claimed he had seen Reasby with a

can of lighter fluid and candles, and that he smelled the odor of gas or kerosene.

Although Galbo’s clothing was collected, it was not tested.

       On October 2, 2012, Galbo was charged with first-degree arson. He was

found guilty at the conclusion of his May 2013 trial and was sentenced to an term

of incarceration of no more than twenty-five years. Galbo has appealed.

       II.      INEFFECTIVE ASSISTANCE OF COUNSEL.

       Galbo first contends his trial counsel was ineffective in failing to move to

exclude the fingerprint evidence. He argues counsel had a duty to move to

exclude the evidence on the basis it does not meet the criteria articulated by the

Supreme Court in Daubert v. Merrell Dow, 509 U.S. 579, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993). He also argues the evidence was both irrelevant and unfairly

prejudicial.

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

Finney, 834 N.W.2d 46, 49 (Iowa 2013). Although we normally preserve such

claims for postconviction-relief proceedings, we will address them on direct
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appeal when the record is sufficient to permit a ruling. Id. Here, both Galbo and

the State concede the issue can be addressed on direct appeal.

       In order to succeed on such a claim, a defendant must prove counsel

failed to perform an essential duty and prejudice resulted. Rhoades v. State, 848

N.W.2d 22, 28 (Iowa 2014). Galbo must prove both by a preponderance of the

evidence. State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). We need not determine

whether counsel’s performance was deficient before examining the prejudice

component of an ineffective-assistance claim. State v. Tate, 710 N.W.2d 237,

240 (Iowa 2006). Because we find the prejudice component is dispositive, we do

not address the adequacy of counsel’s performance.

       Daubert sets forth the following factors to be considered when determining

if expert testimony is admissible: “(1) whether the theory or technique is scientific

knowledge that can and has been tested, (2) whether the theory or technique has

been subjected to peer review or publication, (3) the known or potential rate of

error, or (4) whether it is generally accepted within the relevant scientific

community.” Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 533 (Iowa

1999) (citing Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2797, 125 L. Ed. 2d at

483). Our supreme court held that while the use of these factors may be helpful

to the trial court in assessing the reliability of expert testimony, it is not required.

Id. at 532-33. Rather, the only requirements for admitting expert testimony in

Iowa are as follows: (1) the expert testimony must be relevant, (2) the testimony

must be in the form of “scientific, technical, or other specialized knowledge [that]

will assist the trier of fact to understand the evidence or to determine a fact in
                                         6



issue,” and (3) the expert must be “qualified as an expert by knowledge, skill,

experience, training, or education.” Id.; see also Iowa Rs. Evid. 5.402, 5.702.

       The record sufficiently establishes the requirements for admissibility have

been shown. Although Galbo argues the fingerprint evidence found on a can of

lighter fluid was not relevant because there is no evidence to support the

allegation an accelerant was used, Galbo himself stated to law enforcement that

he had seen Reasby with a can of lighter fluid on the day of the fire and smelled

something like gas or kerosene. Des Moines Police Investigator Tim Briggs’s

testimony regarding the fingerprint evidence was in the form of scientific or

technical knowledge that would assist the jury in understanding the evidence or

determining a fact in issue. Finally, there is ample evidence that Briggs—who

had been the latent fingerprint examiner for the Des Moines Police Department

for seventeen years at the time of trial and who has taken numerous course on

fingerprinting from the FBI, DCI, and Secret Service—is qualified as an expert by

virtue of his experience and training.

       Galbo argues the State failed to establish that the fingerprinting technique

employed in this case is sufficiently reliable.     He notes that during cross-

examination, Briggs did not know of any peer-reviewed study or publication that

validates the technique used, did not have a methodology to calculate his error

rate, and did not employ a blind verification process to ensure the accuracy of the

results. These points go to the weight of Briggs’s testimony, not its admissibility.

Cf. Williams v. Hedican, 561 N.W.2d 817, 827, 830 (Iowa 1997) (noting the lack
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of statistical proof concerning a drug’s effectiveness for treating a condition goes

to the weight of an expert’s testimony and not to its admissibility).

       Because the fingerprint evidence was admissible, Galbo cannot show he

was prejudiced by counsel’s failure to move to exclude it.              Therefore, his

ineffective-assistance claim fails.

       III.   SUFFICIENCY OF THE EVIDENCE.

       Galbo also contends there was insufficient evidence by which the jury

could find him guilty of first-degree arson. We review such claims for correction

of errors at law. See State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We

consider the evidence, including all reasonable inferences that may be fairly

drawn from it, in the light most favorable to the State. Id. at 439-40. We uphold

a verdict if substantial evidence in the record supports it. Id. at 440.

       The evidence supports the jury’s verdict. Galbo told several individuals of

his plan to set fire to the church on the day the fire occurred. He was seen on

the property just before the fire began, admits being inside the church when it

started, and was spotted walking away from the church minutes before the blaze

became visible and emergency vehicles responded. Galbo seemed joyful over

the fire and expressed his dislike of Reasby, who owned the property.             His

fingerprints were found on a lighter-fluid can—a potential accelerant—that was

located near the church after the fire began. The investigation determined that

the fire began in the area where Galbo had been sleeping. However, Galbo had

removed his belongings from the building before they could be damaged.
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      The main thrust of Galbo’s argument is that several witnesses and other

evidence connecting him to the crime are not credible. However, credibility is a

matter for the factfinder to decide except those rare circumstances where a

witness’s testimony is absurd, impossible, or self-contradictory. State v. Neitzel,

801 N.W.2d 612, 624 (Iowa 2011).            None of the evidence complained of

approaches the level required for it to be disregarded. We will not “usurp the role

of a jury by making credibility determinations that are outside the proper scope of

the judicial role.” State v. Paredes, 775 N.W.2d 554, 567 (Iowa 2009). While

some evidence may bring suspicion on another individual, the jury decides the

weight the evidence receives and is free to accept or reject any or all of it. See

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). Galbo also notes there is

no eyewitness to the crime.       However, circumstantial evidence is equally

probative for the purposes of proving guilt beyond a reasonable doubt.        See

State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008). Here, there is substantial

evidence of Galbo’s guilt. Accordingly, we affirm.

      AFFIRMED.
