                     IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0082
                                 Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN JOSEPH VANCE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Benton County, Sean W.

McPartland, Judge.



      John Joseph Vance appeals his convictions for sexual abuse in the

second degree and lascivious acts with a child. CONVICTIONS AFFIRMED,

SENTENCE VACATED IN PART AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, David C. Thompson, County Attorney, and Emily K. Nydle, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.

       John Joseph Vance appeals his convictions for sexual abuse in the

second degree and lascivious acts with a child. Vance claims the district court

erred in allowing the jury to hear statements made by a police officer during

Vance’s interrogation. He also claims the district court improperly imposed a fine

as part of his sentence. We find the statements by police were non-testimonial in

nature and properly admitted. We also find a portion of the sentence is illegal

due to the imposition of a fine for sexual abuse in the second degree. We affirm

the convictions, vacate the imposition of a fine for sexual abuse in the second

degree, and remand for resentencing consistent with this opinion.

I.     Background Facts and Proceedings

       On October 28, 2010, John Vance was charged with sexual abuse in the

second degree and lascivious acts with a child.        He pleaded not guilty and

waived his right to a speedy trial.

       Prior to trial Vance filed a motion in limine seeking to redact a portion of a

videotaped interview conducted by Deputy Jerry Michael. During the interview

Deputy Michael told Vance, “This stuff happened to [the victim], John, and it did,

and we know that it did, and I think for the most part you know that it did.” Vance

responded by saying “Yeah.” Vance sought to exclude the deputy’s statement as

impermissible opinion evidence that invaded the province of the jury. The district

court allowed the statement to be played to the jury as part of the entire

interview.   A guilty verdict was returned on both charges, and Vance filed a
                                          3



motion for new trial claiming, in part, the statement by Deputy Michael should not

have been placed before the jury. The motion was denied.

         Vance was sentenced to a term not to exceed twenty-five years in prison

on the sexual-abuse-in-the-second-degree charge, with a seventy percent

minimum sentence. He was also sentenced to a term not to exceed ten years in

prison on the lascivious-acts-with-a-child charge. Both sentences were to be

served concurrently. The court also imposed a fine of $1000 on each charge.

II.      Standard of Review

         We review the district court’s rulings on evidentiary matters for an abuse

of discretion. In re Detention of Blaise, 830 N.W.2d 310, 315 (Iowa 2013). Our

review of the legality of the sentence is for correction of errors at law. State v.

Keutla, 798 N.W.2d 731, 732 (Iowa 2011).

III.     Discussion

         A.      Deputy’s Statement

         Vance claims the deputy’s statement should not have been played for the

jury as the statement invaded the province of the jury. He claims the deputy’s

position of authority suggested the victim was telling the truth, and therefore,

Vance was guilty.

         Opinion evidence is not allowed to directly comment on whether the

defendant is guilty or innocent. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa

1992).        There is a “fine but essential line” between opinions conveying

conclusions as to guilt or innocence and those that might help a jury. See State

v. Myers, 382 N.W.2d 91, 98 (Iowa 1986). Opinion testimony that suggests one
                                         4



party is being truthful while another dishonest, implying an opinion on guilt or

innocence, crosses this line.1 Id. at 97–98. We find Deputy Michael’s statement

was non-testimonial in nature. An officer’s stated opinion that a defendant was

not being truthful during an interview is not testimony offered to impeach the

witness. See State v. Enderle, 745 N.W.2d 438, 442–43 (Iowa 2007). As such,

the testimony was properly admitted. Id. Enderle focused on the effect of the

statement as an attack on credibility; however, we find the non-testimonial

statements by Deputy Michael did not invade the jury’s role and express an

opinion Vance was guilty, particularly in light of Vance’s later confession.

       B.     Sentence

       The district court imposed a $1000 fine on each charge.            The State

concedes the fine for sexual abuse in the second degree was illegal. The fine

was not mentioned during the sentencing but was later included in a written

sentencing order.    Both parties agree this case should be remanded to the

district court for entry of an order nunc pro tunc to remove the fine from the

sentencing order.

       When the district court enters a sentence the law does not permit, the

sentence is illegal. State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). A nunc pro

tunc order is an appropriate remedy. Id.; Iowa R. Crim. P. 2.23(3)(g). We vacate

that portion of the sentence imposing a fine for the offense of sexual abuse in the




1
  In Myers, an expert opinion suggested children are generally truthful when alleging
sexual abuse, which contradicted the defendant’s position and implied the victim was
testifying truthfully. Id. at 92–98.
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second degree and remand this case for resentencing consistent with this

opinion.

      CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART AND

REMANDED.

      Potterfield, P.J., and Doyle, J. specially concur.
                                              6



POTTERFIELD, P.J. (specially concurring)

       I write separately because I disagree with the majority’s analysis of the

evidentiary issue raised by Detective Michael’s statement: “This stuff happened

to [the victim] . . . it did and we know that it did.”2         The majority treats the

argument for redacting that statement from the recorded interview of Vance as

an attack on Vance’s credibility. My reading of the parties’ briefs on appeal is

that Vance objected to the admission into evidence of the detective’s statement

because it bolstered the credibility of the victim in this case where credibility was

the principal issue for the jury to decide.

       Detective Michael was presented by the State as an expert witness,

recounting his experience and training as a member of the Iowa Sex Crimes

Investigators Association. His questioning did include skepticism about Vance’s

credibility and those statements were admissible under the rationale of Enderle

and to place Vance’s answers in context. See 745 N.W.2d at 442–43.

       The statement quoted above, on the other hand, simply conveyed to the

jury the detective’s belief in the credibility of the victim. “This stuff happened to

[the victim] . . . and we know that it did” tells the jury the detective absolutely

believed the victim and should have been redacted. See Myers, 382 N.W.2d at

97–98 (“In this case the trial court admitted expert testimony relating to the

truthfulness of the complaining witness. We believe the effect of the opinion

testimony was to improperly suggest the complainant was telling the truth and,



2
  Once Vance’s motion in limine was denied, and this statement came in during the
detective’s direct examination, Vance attempted to dilute the credibility-bolstering effect
of this statement in his cross-examination of the detective.
                                           7



consequently, the defendant was guilty.”); see also State v. Pansegrau, 524

N.W.2d 207, 210 (Iowa Ct. App. 1994) (“The Iowa courts have determined

experts should not be allowed to give an opinion on matters that directly render

an opinion on the credibility or truthfulness of a witness.”).

       While the district court abused its discretion in denying Vance’s motion in

limine, not all evidentiary errors require reversal of the district court. State v.

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). The record affirmatively establishes

Vance was not prejudiced by this evidence in light of his multiple confessions

made minutes later in the same interview by the detective. See id. I therefore

concur with the majority’s decision to affirm Vance’s conviction.
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DOYLE, J. (specially concurring)

       I concur but write separately. I agree the trial court did not abuse its

discretion in admitting Deputy Michael’s statement, and if there was an error, it

was harmless in light of the facts of this case. However, I believe the better

practice would have been the submission of a limiting instruction to the jury once

the statement was admitted.

       While the deputy’s interview statement at issue—“This stuff happened to

[the victim], John, and it did, and we know that it did”—was non-testimonial in

nature, see Enderle, 745 N.W.2d at 442-43, it was evidence considered by the

jury. The jury was instructed to base its verdict only on the evidence and the

instructions. Further, the jury was instructed that exhibits received by the court

were evidence. The audio recording of Vance’s interview with the deputy was an

exhibit received into evidence and played for the jury.        In considering this

evidence, a reasonable juror could well have inferred the statement at issue to be

an opinion of a State’s witness vouching for the victim’s truthfulness, particularly

since the deputy testified from a position of authority, as a peace officer, trained

and experienced in sex abuse investigations and in interviewing suspected sex

offenders.   However, interrogation techniques employed by law enforcement

officers need not be as pure as the driven snow.

       Although not condoned by appellate courts, law enforcement officers may

lie to a suspect, and do, in order to extract a confession. See, e.g., State v.

Oliver, 341 N.W.2d 25, 28 (Iowa 1983) (noting that although deceptive

interrogation tactics are disapproved, “[n]o per se rule of exclusion has
                                        9



been . . . adopted; deception is merely considered as one of the factors in

considering the overall question of voluntariness.”); State v. Boren, 224 N.W.2d

14, 16 (Iowa 1974) (“We do not believe [the detective’s] alleged ‘trick question’

constituted coercion.”); State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974)

(“Deception of any nature by representatives of the state cannot be condoned.

However, we conclude deception standing alone does not render a waiver of

constitutional rights involuntary as a matter of law unless the deceiving acts

amount to a deprivation of due process.”); State v. Hofer, 28 N.W.2d 475, 479

(Iowa 1947) (“Even the use of artifice, fraud or deception to obtain a confession

does not render it inadmissible if the means employed are not calculated to

procure an untrue statement.”); State v. Jennett, 574 N.W.2d 361, 366 (Iowa Ct.

App. 1997) (“The alleged deceptions about DNA and the search warrant did not

render [the defendant’s] confessions involuntary.”); see also 29 Am. Jur. 2d

Evidence § 744 (2008) (“Deceptive interrogation techniques alone do not

establish coercion and render a confession involuntary.”).

      In view of this state of affairs, I believe limiting instructions should be

given, such as: “Statements and questions by law enforcement officers during

interviews with the defendant are not evidence to be considered for their truth.

The defendant’s answers and responses to those questions and statements are

evidence,” and we have previously suggested such an instruction be given when

requested. See State v. Esse, No. 03-1739, 2005 WL 2367779, at *3 (Iowa Ct.

App. Sept. 28, 2005). No such request was made here.
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      Nevertheless, “error in an evidentiary ruling that is harmless may not be a

basis for relief on appeal.” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008). In

this case, in light of Vance’s multiple confessions, the record here affirmatively

establishes Vance was not prejudiced by the lack of a limiting introduction

concerning the deputy’s statement and any error was harmless.          I therefore

concur with the decision to affirm Vance’s conviction.
