State of Iowa v. Perry Dale VanDekieft

IN THE COURT OF APPEALS OF IOWA
No. 17-0876
Filed June 6, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PERRY DALE VANDEKIEFT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lyon County, Patrick M. Carr, Judge.
Perry VanDekieft appeals his conviction of sexual abuse in the second
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ. Carr, S.J., takes no
part.
2
VOGEL, Presiding Judge.
Perry VanDekieft1 appeals his conviction of sexual abuse in the second
degree for his actions with his stepdaughter, C.L. He asserts the district court
abused its discretion in allowing testimony from the expert witness, it erred in
allowing hearsay from his wife Tari VanDekieft, and the prosecutor committed
misconduct in his statements, all of which inappropriately supported the credibility
of C.L. He also asserts his counsel was ineffective for failing to object to a jury
instruction that allowed the jury to use his out-of-court statements as if they had
been made at trial. We find he did not preserve error on his objection to the expert
witness, and, even if he had preserved error, the expert did not comment on C.L.’s
credibility. We also find the district court improperly admitted hearsay, but the
inadmissible hearsay did not prejudice Perry’s substantial rights. Additionally, we
find he did not preserve error on his claim of prosecutorial misconduct, and, even
if he had preserved error, the prosecutor’s statements do not rise to the level of
misconduct. Finally, we find Perry’s counsel was not ineffective because the jury
instruction correctly states the law, and, even if we were to find it misstates the
law, no prejudice resulted. Accordingly, we affirm.
I. Background Facts and Proceedings
Perry and Tari VanDekieft2 married in September 2009. She called him her
“best friend,” and he considered her the same. In August 2014, the couple moved
into a home in rural Inwood located in the salvage yard where they worked. The
1
The capitalization and spacing of the Defendant–Appellant’s last name is inconsistent
throughout the record. The Defendant–Appellant uses “VanDekieft” in his brief to us, as
do we.
2
For clarity, we will refer to Perry and Tari by their first names.
3
couple lived in the home with their children, including A.V., their daughter who was
born during the marriage, and C.L., Tari’s daughter from a previous marriage who
was born in 2004. Perry is C.L.’s stepfather.
In the Inwood home, C.L. shared a bedroom with A.V., who was about eight
years younger than C.L. For about the first year they lived in the home, the girls
slept in bunk beds. C.L slept in the top bunk, and A.V. slept in the bottom bunk
where she would have had difficulty seeing into the top bunk. In the summer of
2015, the girls moved from the bunk beds into separate beds on the floor. During
this time, A.V. usually went to bed around 8:00 or 9:00 p.m. C.L. set her own
bedtime, which was usually around 10:00 or 10:30 p.m. but occasionally as late as
midnight.
Beginning in the fall of 2014, C.L.’s bedtime routine included Perry tucking
her into bed. Tari stayed out of the girls’ bedroom during the bedtime routine
because Tari wanted C.L. and Perry to be able to talk openly. Perry spent
anywhere from five to forty-five minutes in the girls’ bedroom during the routine
each night. According to Tari, the forty-five-minute sessions occurred “pretty
regularly,” about a couple of times per week.
Sometime in 2015, Perry took C.L. into town to purchase tampons for her.
According to Perry’s testimony, C.L mentioned during the trip that tampons hurt,
and Perry told her “a guy is bigger than a tampon, and to my knowledge sex doesn’t
hurt.” Tari testified that in the spring of 2016, Perry said C.L. had asked him about
sex and offered to show C.L. “soft porn” images. Perry acknowledged he offered
to show C.L. something after she asked about sex but “hadn’t found it yet,” and he
denied wanting to show her pornographic images.
4
On the afternoon of Sunday, July 31, 2016, Perry and Tari were working
outside while C.L. washed dishes alone inside the house. At one point, Perry went
into the house to refill his coffee cup. Shortly thereafter, Tari also went inside to
grab a tool. When Tari stepped inside, she saw C.L. standing at the sink with Perry
standing right behind her and their backs turned to Tari. Perry was surrounding
C.L. with his arms and kissing her on the back of her neck. According to Perry’s
testimony, C.L. felt bad about her recent haircut at the time, so he hugged and
kissed her from behind and told her, “I love you. I think you’re pretty.” He testified
he only wanted her to feel good about herself, and he denied wanting any sexual
benefit from her. Tari testified that when Perry heard her shut the front door, he
jumped back seemingly startled, went to the coffee counter, and then went outside
without saying anything.
Tari talked to C.L. about the encounter that afternoon, but she never talked
to Perry about it. Suspicious as to what she had observed, Tari began paying
more attention to Perry’s interactions with C.L. The next evening, on Monday,
August 1, 2016, Perry took C.L into the girls’ bedroom to tuck her into bed as usual.
Tari soon noticed C.L. had not finished her chores, and she went to the girls’
bedroom to tell her. From the doorway to the girls’ bedroom, Tari saw C.L. lying
in her bed and playing with her phone. Perry was also lying in her bed with his
back to the doorway, his feet dangling off the bed near C.L.’s head, and his face
next to her hip. Tari testified Perry was using his hand to rub C.L. over her clothes
on her hip and on the front of her thigh in a “suggestive” and “inappropriate”
manner.
5
Tari did not talk to Perry about what she saw that Monday night, but she
tried to keep Perry from being alone with C.L. until C.L.’s regular counseling
appointment on Thursday. At the Thursday counseling appointment, Tari asked
C.L. about the Monday night incident and if anything else had happened.
At trial, C.L. testified about her interactions with Perry. The touching events
usually occurred at night. He typically used his hand to touch her on her legs,
thighs, and butt while he called her terms like “sexy” and “pretty.” He touched her
over her clothes and on her bare skin, occasionally pulling her underpants down
to her knees. On the night of Monday, August 1, 2016, he rubbed and kissed her
legs and told her she was “sexy” and “pretty” while he laid with her in her bed. He
first touched her when she was in second or third grade, at which time he rubbed
her legs and said “you don’t have to sleep with your clothes on. You can sleep
[naked] like I do.” He touched her more frequently at night by 2014, and he touched
her almost every night by 2016. One night around March 2016, he entered her
room, pulled down her pants, kissed and rubbed her bare butt, and rubbed the
outside of her bare vagina with two fingers. A couple of years earlier, when C.L.
was in fifth grade, Perry rubbed her breasts over her clothes and commented on
how they were developing.
On Thursday, August 4, 2016, after the counseling appointment, Tari told
Perry via text she was taking the children and leaving him. She did not mention
the touching incidents at the time. On Sunday, August 7, Lyon County Chief
Deputy Jerry Birkey executed a search warrant of the VanDekieft home along with
four other officers. Perry did not ask about the reason for the search. He told
6
deputy Birkey that Tari is “vengeful” and “spiteful,” and he believed Tari had
accused him of “child molestation.”
The State charged Perry with sexual abuse in the second degree. The
parties proceeded to a jury trial. At trial, the State offered testimony from Tari,
C.L., deputy Birkey, and Victoria Hilton. Hilton is a child forensic interviewer who
interviewed C.L. on August 5, 2016; however, the State offered her as an expert
witness to testify generally about interviewing children regarding sexual abuse.
Hilton did not testify about C.L. beyond acknowledging her interview. Perry
testified in his defense. He denied ever touching C.L. for sexual gratification,
though he acknowledged he would touch her on her side and leg and tell her she
was pretty “to reassure her.” He denied ever touching C.L.’s vagina. He testified
Tari may have falsely accused him because he had a strong relationship with C.L.
and was “awful friendly with” her. The jury convicted Perry of sexual abuse in the
second degree in violation of Iowa Code section 709.3(1)(b) (2016), and the court
sentenced him to twenty-five years imprisonment.
Perry now appeals. He asserts the district court abused its discretion in
allowing testimony from Hilton, the court erred in allowing Tari to present hearsay
testimony, and the prosecutor committed misconduct. He also asserts his counsel
was ineffective for failing to object to a jury instruction that allowed the jury to use
his out-of-court statements as if they had been made at trial.
II. Standard of Review
We review the admission of expert testimony for abuse of discretion. State
v. Brown, 856 N.W.2d 685, 688 (Iowa 2014). The admission of hearsay is
reviewed for errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). We
7
review claims of prosecutorial misconduct and ineffective-assistance-of-counsel
de novo. State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). To the extent the
underlying challenge to the jury instruction implicates a constitutional right, we
review the challenge de novo. State v. Green, 896 N.W.2d 770, 775 (Iowa 2017).
To the extent the underlying challenge to the jury instruction does not implicate a
constitutional right, we review the challenge for errors at law, and we “determine
whether the challenged instruction accurately states the law and is supported by
substantial evidence.” Id. (quoting State v. Hanes, 790 N.W.2d 545, 548 (Iowa
2010)).
III. Admission of Expert Witness Hilton
Perry argues the district court abused its discretion by allowing Hilton to
testify as an expert witness. According to Perry, Hilton inappropriately bolstered
C.L.’s credibility with her testimony about delayed disclosure among abused
children.
As an initial matter, the State argues Perry has not preserved error on this
argument. Perry objected to the admissibility of Hilton as an expert witness in a
motion in limine. The district court responded in writing:
After examining the authorities cited, including State v.
Dudley, 856 N.W.2d 668 (Iowa 2014), the Court thinks that limited
testimony concerning grooming is admissible. To that extent, the
Defendant’s motion in limine is overruled. The Court expects that
the “grooming” testimony would be offered in general terms. The
Court thinks it may be admissible, on a proper foundation, to explain
delayed reporting or partial or incomplete reporting. Testimony that
C.L. might suffer child sexual abuse accommodation syndrome will
not be permitted. Testimony that the Defendant is a groomer and
that groomers are molesters will not be permitted. Testimony that
the Defendant and his conduct fit a profile of child molesters will not
be permitted. Testimony, including opinions, vouching directly or
indirectly for the veracity of C.L. will not be permitted.
8
Perry renewed his objection to allowing Hilton to testify prior to the State
calling her as a witness, and the district court responded orally:
You know, we considered this at some length following the
submission of your motion in limine. And it’s kind of an old saw, but
I think that the arguments you made should form part of your cross-
examination and argument. I think that, assuming a proper
foundation is laid in open court with respect to her proposed
testimony, then I think that her testimony is admissible given Iowa—
customary Iowa rules on the admission of expert testimony, and that
it will then be to—the trier of fact will most certainly be instructed to
disregard all, part or none of any expert witness’s testimony just like
any other witness. They should consider the strength of the opinion
and qualifications and all those things. And in Iowa so far the strong
message from our supreme court is that we trust the jury’s—common
sense of Iowa juries to see through the junk science.
Hilton was allowed to testify, and Perry offered no further objection.
Generally, a party waives error on a ruling on a motion in limine unless the
party makes a timely objection at trial when the evidence is offered. State v.
Alberts, 722 N.W.2d 402, 406 (Iowa 2006). However, the general rule does not
apply if the district court resolves the motion in limine “‘in such a way it is beyond
question whether or not the challenged evidence will be admitted during trial.’” Id.(quoting State v. Tangie, 616 N.W.2d 564, 568–69 (Iowa 2000)). Such a decision
has the effect of a ruling and error is preserved even if the party does not object
again during trial. Id.The district court’s written response permitted Hilton to present “limited
testimony concerning grooming.” The district court otherwise reserved its decision
as to whether the grooming testimony exceeded this limited purpose, specifically
stating the grooming testimony “may be admissible . . . to explain delayed reporting
or partial or incomplete reporting.” The district court’s oral statement, which used
9
“think” and “should” multiple times, provided a no more definitive ruling on the
admissibility of Hilton’s testimony. Because the district court did not resolve
“beyond question” the admissibility of Hilton’s testimony regarding delayed
disclosure, Perry has not preserved error on the issue. See id.Even if Perry had preserved error on the issue, his argument would fail.
Iowa has “a liberal view on the admissibility of expert testimony.” Ranes v. Adams
Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Perry correctly notes an expert
witness may not directly or indirectly comment on the credibility of a witness. State
v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). However, we have long allowed experts
to “express opinions on matters that explain relevant mental and psychological
symptoms present in sexually abused children.” Dudley, 856 N.W.2d at 676
(quoting Myers, 382 N.W.2d at 97). An expert witness may “testify generally that
victims of child abuse display certain demeanors.” State v. Jaquez, 956 N.W.2d
663, 666 (Iowa 2014). If “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.Hilton acknowledged she interviewed C.L. but stated she would not give an
opinion on the credibility of C.L. Hilton otherwise did not testify about C.L. She
only testified generally about the behavior of child sexual abuse victims, including
testimony about why victims may delay disclosure of the abuse. Hilton did not
directly or indirectly compare C.L.’s behavior to a child abuse victim. See id.Therefore, even if Perry had preserved error on Hilton’s testimony about delayed
disclosure, he has not shown the district court erred in admitting her testimony.
10
IV. Admission of Hearsay
Perry next argues the district court erred in allowing Tari to present hearsay
while testifying about her conversation with C.L. during the counselor appointment
on Thursday, August 4, 2016. At trial, the following exchange occurred:
[DEFENSE]: At this time, Judge, I would interpose an
objection with respect to hearsay.
THE COURT: Ladies and gentlemen, I’m going to allow the
witness to answer briefly in order to explain why later events
occurred, and you’ll see what I mean by that by [the State’s]
questioning.
[STATE]. What did you ask [C.L.] about Monday night?
[TARI]. I asked her what [Perry] was doing on the bed with her.
Q. And what did she tell you? A. That he was rubbing her leg
and telling her she was pretty.
Q. Did she say anything else that you recall about Monday
night? A. That he—that he was kissing her leg.
Q. So he was kissing her leg, rubbing her leg and saying she
was pretty? A. Yes, sir.
Q. And you had earlier, you mentioned, asked her about the
incident in the kitchen; correct? A. Yes.
Q. Did you ask her anything else after she told you about the
Monday night incident? A. I asked her how long—I asked her if he
had ever touched her like that before.
Q. And what did she say? A. Yes.
Q. And what else did you ask her? A. I asked her if he had
ever gone under her underwear, and she said yes. And I asked her
if he had ever done anything more than that—or I asked her if—if he
had ever touched under her shirt. And I asked her—I don’t remember
her answer on that one. And I asked her if he had ever done anything
else worse than that, and she said no.
The admission of prejudicial hearsay is reversible error. State v. Plain, 898
N.W.2d 801, 811 (Iowa 2017). Hearsay is “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Id. at 812 (quoting Iowa R. Evid. 5.801(c)). Hearsay
is generally not admissible unless an exception applies. Iowa R. Evid. 5.802. An
out-of-court statement is not hearsay if it is offered only to explain subsequent
11
conduct that is relevant to the State’s case. Plain, 898 N.W.2d at 812. However,
if such “evidence is admitted, the court must limit its scope to that needed to
achieve its purpose.” Id. (quoting McElroy v. State, 637 N.W.2d 488, 502 (Iowa
2001)).
It is up to the trial court to determine whether the statement is
truly relevant to the purpose for which it is being offered, or whether
the statement is merely an attempt to put before the fact finder
inadmissible evidence. To determine if an alleged hearsay
statement is admissible, we must analyze the purposes for which it
was offered. In analyzing the statement, we look at the real purpose
for the offered testimony, not just the purposes urged by the
prosecutor. We base our determination on an objective finding
based on the facts and circumstances developed by the record.
State v. Elliott, 806 N.W.2d 660, 668 (Iowa 2011) (internal quotation marks and
citations omitted).
Tari recounted parts of her out-of-court conversation with C.L. about C.L.’s
interactions with Perry. The State argues this testimony is not hearsay because it
was not offered to prove Perry acted inappropriately with C.L.; instead, it was
offered to show Tari’s subsequent conduct, specifically to show why she contacted
authorities and left Perry shortly after the counseling session. However, Tari’s
testimony went beyond merely explaining her subsequent conduct. She relayed
specific details from C.L. that Perry “was rubbing her leg and telling her she was
pretty” and “kissing her leg” on that Monday night in the bedroom. Tari also
testified that C.L. acknowledged Perry had “gone under her underwear.” This
specificity shows the conversation was offered to prove the matter asserted. See
id. Furthermore, the district court did not adequately limit the scope of the
statements. While the court alerted the jury Tari’s testimony would “explain why
later events occurred,” it did not instruct the jury to use her testimony only to explain
12
later events, nor did it caution the jury against using the testimony as evidence of
the matter asserted. Therefore, the district court erred in admitting Tari’s hearsay
testimony about her conversation with C.L. during the counselor appointment.
Nonetheless, this error did not prejudice Perry’s substantial right to a fair
trial as it was cumulative of other evidence properly admitted. See Plain, 898
N.W.2d at 813.
[A]dmission of hearsay evidence over a proper objection is
presumed to be prejudicial error unless the contrary is affirmatively
established. The contrary is affirmatively established if the record
shows the hearsay evidence did not affect the jury’s finding of guilt.
One way to show the tainted evidence did not have an impact on the
jury’s verdict is to show the tainted evidence was merely cumulative.
If the record contains cumulative evidence in the form of testimony,
the hearsay testimony’s trustworthiness must overcome the
presumption of prejudice. We measure the trustworthiness of the
hearsay testimony based on the trustworthiness of the corroborating
testimony.
Elliott, 806 N.W.2d at 669 (alteration in original) (internal quotation marks and
citations omitted).
All of Tari’s inadmissible hearsay is corroborated by or cumulative of other
testimony. Tari herself testified she saw Perry rubbing C.L.’s leg that Monday
night. C.L. also testified about that night, stating Perry rubbed and kissed her leg
and told her she is pretty. Additionally, C.L. testified about other encounters where
Perry pulled down her underpants and touched her bare skin. Finally, Perry
corroborated some of the hearsay in his own testimony when he acknowledged he
tucked C.L. into bed that Monday night. While he testified he acted “to reassure
her, calm her down,” he also said he would call her pretty, and he said “I’d rub my
hands down her side, or I’d reach out and touch her leg.” Accordingly, we are
satisfied the entire record sufficiently establishes the trustworthiness of the
13
admitted hearsay, and the hearsay evidence did not affect the jury’s guilty verdict.
See id. Thus, admission of the hearsay evidence did not prejudice Perry’s
substantial rights.
V. Prosecutorial Misconduct
Perry argues the prosecutor impermissibly commented on C.L’s credibility
in his opening arguments when he said, “[I]n this case the State believes the
evidence will show that [C.L.], that now 12-year-old girl, is credible.” Perry argues
the prosecutor again impermissibly commented on C.L.’s credibility in his closing
argument:
And ladies and gentlemen, the evidence has shown that [C.L.]
is credible. And you can base your decision solely on her testimony
because it’s credible, it’s consistent, the evidence showed, and it’s
corroborated.
....
. . . Ladies and gentlemen, the State contends that the
evidence shows that [C.L. is] credible. That she’s credible. You got
to see and listen to her testimony.
Perry argues these statements rose to the level of prosecutorial misconduct and
violated his due process rights to a fair trial.
As an initial matter, the State argues Perry failed to preserve error on his
constitutional challenge to these statements. “To preserve error on a constitutional
claim, counsel should inform the district court of the constitutional basis for any
motion a party makes.” State v. Ary, 877 N.W.2d 686, 699 (Iowa 2016). Perry did
not object during closing arguments. Perry objected to the specific quote above
during opening arguments; however, he did not mention due process at the time.
His objection during opening arguments referred to his motion in limine, which
asked the court to “bar the introduction of any statement by the prosecutor or by
14
any witness for the prosecution regarding the credibility or truthfulness of the
complaining witness insofar as the same constitutes an abuse of discretion and is
prejudicial.” This argument in the motion in limine only cites Myers, 382 N.W.2d
at 91, which involves the admissibility of expert testimony and whether its probative
value outweighs its prejudice under the rules of evidence. At no point did Perry
inform the district court of—nor did the district court rule on—a constitutional
objection to the prosecutor’s statements regarding C.L’s credibility. See Ary, 877
N.W.2d at 699. Therefore, Perry has not preserved error on the issue of
prosecutorial misconduct.
Even if Perry had preserved error on the issue of prosecutorial misconduct,
his argument fails. To succeed on a claim of prosecutorial misconduct, a
defendant must prove both misconduct occurred and “the misconduct resulted in
prejudice to such an extent that the defendant was denied a fair trial.” State v.
Graves, 668 N.W.2d 860, 869 (Iowa 2003). Prosecutorial misconduct requires
more than a mere error. State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016).
Prosecutorial misconduct includes those statements “where a
prosecutor intentionally violates a clear and unambiguous obligation
or standard imposed by law, applicable rule or professional conduct,”
as well as “those situations where a prosecutor recklessly disregards
a duty to comply with an obligation or standard.” Prosecutorial error
occurs “where the prosecutor exercises poor judgment” and “where
the attorney has made a mistake” based on “excusable human error,
despite the attorney’s use of reasonable care.” This distinction also
conforms to the general definitions for misconduct and a trial error.
Id. (quoting Shawn E. Minihan, Measuring Prosecutorial Actions: An Analysis of
Misconduct versus Error, Prosecutor, Dec. 2014, at 24–25). A prosecutor may not
personally vouch for the credibility of a witness. Graves, 668 N.W.2d at 874.
However, a prosecutor has “‘some latitude during closing argument in analyzing
15
the evidence admitted in the trial.’” Id. (quoting State v. Phillips, 226 N.W.2d 16,
19 (Iowa 1975)). “[A] prosecutor may argue the reasonable inferences and
conclusions to be drawn from the evidence.” Id. The credibility of witnesses is a
proper subject for discussion during closing argument. A prosecutor may not,
however, express or imply his or her personal belief in the truth or falsity of the
testimony of a witness.” State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App.
1994).
The comments in this case do not show the prosecutor impermissibly
vouched for C.L.’s credibility. The prosecutor prefaced each reference to C.L.’s
credibility with “the evidence will show,” “the evidence has shown,” or “the evidence
shows.” Such comments are reasonable conclusions based on the evidence
rather than any explicit or implied personal belief in C.L.’s credibility. See id.Therefore, even if Perry had preserved error, he has not shown prosecutorial
misconduct occurred.
VI. Jury Instruction
Jury instruction number eight reads:
Evidence has been offered to show that the defendant made
statements at an earlier time and place.
If you find any of the statements were made, then you may
consider them as part of the evidence, just as if they had been made
at this trial.
You may also use these statements to help you decide if you
believe the defendant. You may disregard all or any part of the
defendant’s testimony if you find the statements were made and
were inconsistent with the defendant’s testimony given at trial, but
you are not required to do so. Do not disregard the defendant’s
testimony if other evidence you believe supports it or you believe it
for any other reason.
16
Perry argues his counsel was ineffective for failing to object to this
instruction. He asserts that instructing jurors to consider his out-of-court
statements “as part of the evidence, just as if they had been made at this trial”
creates a legal fiction that all of his out-of-court statements were made under oath.
This essentially forces him to testify against himself at trial in violation of his right
against self-incrimination, it improperly adds weight to his out-of-court statements,
and it implicitly leads to the conclusion that he committed perjury if any out-of-court
statement conflicts with an in-court statement.
“Ineffective-assistance-of-counsel claims require a showing by a
preponderance of the evidence both that counsel failed an essential duty and that
the failure resulted in prejudice.” Schlitter, 881 N.W.2d at 388. “We review jury
instructions as a whole to determine whether the jury instructions correctly state
the law.” State v. Tipton, 897 N.W.2d 653, 694 (Iowa 2017). We note jury
instruction number nine reads:
Decide the facts from the evidence. Consider the evidence
using your observations, common sense and experience. Try to
reconcile any conflicts in the evidence; but if you cannot, accept the
evidence you find more believable.
In determining the facts, you may have to decide what
testimony you believe.
You may believe all, part or none of any witness’s testimony.
There are many factors which you may consider in deciding
what testimony to believe, for example:
1. Whether the testimony is reasonable and consistent with
other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness’s appearance, conduct, age, intelligence,
memory and knowledge of the facts.
4. The witness’s interest in the trial, their motive, candor, bias
and prejudice.
17
First, while Perry acknowledges his out-of-court statements were properly
admitted under Iowa Rule of Evidence 5.801(d)(2), he argues instruction number
eight and the use of his out-of-court statements violates his Fifth Amendment
protection from self-incrimination. “The Fifth Amendment of the United States
Constitution, as applied to the states through the Fourteenth Amendment, provides
that no person, ‘shall be compelled in any criminal case to be a witness against
himself.’” State v. Marks, 644 N.W.2d 35, 37 (Iowa Ct. App. 2002). The Fifth
Amendment protects communications that are testimonial, incriminating, and
compelled. State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 (Iowa 2011). Compulsion
generally requires state-imposed sanctions or penalties for using the privilege. Id.Perry has not identified any out-of-court statements he gave under compulsion.
Rather, all of his out-of-court statements he identified were freely given prior to
state involvement. See id. Therefore, Perry has not shown instruction eight and
the use of his out-of-court statements violates his Fifth Amendment rights.
Second, Perry argues instruction number eight misstates the law. He
argues that instructing the jury to consider out-of-court statements “as if they had
been made at this trial” incorrectly implies the out-of-court statements were made
under oath. This assigns equal weight to all statements and necessarily leads to
the conclusion that he committed perjury if any two statements attributed to him
conflict, regardless of whether those statements occurred prior to or during trial.
He points to the out-of-court statements attributed to him that he denied making at
trial, specifically the claims that he told C.L. she should sleep naked, she was sexy,
and she could view pornography with him.
18
We find instruction number eight correctly states the law. Nothing in
instruction eight, or any other instruction given, directs the jury to consider Perry’s
out-of-court statements as given under oath. The instructions also do not discuss
perjury, nor do they assign any credibility to out-of-court statements in relation to
those given during trial under oath. Instruction eight merely allows the jury to
consider Perry’s out-of-court statements as part of the entire body of evidence, as
allowed under Iowa Rule of Evidence 5.801(d)(2).
Furthermore, even if we were to determine instruction number eight
misstates the law, no prejudice resulted. The instructions provide ample guidance
for jurors in navigating conflicting evidence. As stated in instruction eight, the jury
could simply decide Perry never made the conflicting out-of-court statements.
Alternatively, as stated in instruction nine, the jury could reconcile the conflicting
evidence, or they could follow the instruction to decide which evidence to believe.
Additionally, even if the jury improperly placed too much weight on Perry’s out-of-
court statements, the record contains strong evidence of his guilt other than his
out-of-court statements. Specifically, C.L. testified about her recollections of the
touching events, including the time when he rubbed her vagina, and Perry’s own
testimony about rubbing her legs and calling her pretty corroborates much of her
testimony. Because instruction eight correctly states the law, and, even if it
misstates the law, Perry suffered no resulting prejudice, his counsel was not
ineffective for failing to object to instruction eight.
VII. Conclusion
Perry did not preserve error on his objection to Hilton’s testimony. Even if
he had preserved error, the district court did not abuse its discretion in admitting
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Hilton’s testimony because she did not comment on C.L.’s credibility. The district
court erred in allowing Tari to testify about inadmissible hearsay, but admitting the
hearsay testimony did not prejudice Perry’s substantial rights. Perry did not
preserve error on his claim of prosecutorial misconduct. Even if he had preserved
error, the prosecutor’s statements do not rise to the level of misconduct. Finally,
Perry’s counsel was not ineffective because the jury instruction did not violate his
constitutional protection from self-incrimination, the instruction correctly states the
law, and, even if we were to find it misstates the law, no prejudice resulted.
Accordingly, we affirm.
AFFIRMED.