IN THE COURT OF APPEALS OF IOWA
No. 15-1294 Filed August 17, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JOHN WINSTON LUSK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra Schroeder,
Judge.
Defendant appeals his convictions on two counts of second-degree sexual
abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Bower, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BOWER, Judge.
John Lusk appeals his convictions on two counts of second-degree sexual
abuse. We find there is substantial evidence in the record to support his
convictions, and the district court did not abuse its discretion by admitting expert
testimony of a general nature concerning victims of sexual abuse. We affirm
Lusk’s convictions.
I. Background Facts & Proceedings
On June 16, 2014, the State charged Lusk with two counts of sexual
abuse in the second degree, in violation of Iowa Code section 709.3(2) (2013).
One count involved A.L. and the other count involved C.L.—both of whom are
related to Lusk.
Lusk filed a motion in limine seeking to prohibit the State “from eliciting
testimony from an expert witness that vouches for or purports to vouch for the
credibility of the witnesses.” The State did not resist this request. In ruling on the
motion in limine, the district court noted only the State did not resist on this
ground.
At the criminal trial, held in May 2015, A.L. was thirteen years old. She
testified she sometimes visited Lusk in Floyd and described his house. She
testified on one visit, she and her sister were sleeping in the basement when
Lusk came down and asked if she wanted him to rub her back. A.L. stated,
“Well, he started rubbing my back. And then he went—he touched a place that I
do not—I didn’t feel like it was right.” She stated Lusk put his hand under her
underwear and shorts and touched her front private area. A.L. testified, “No, I did
not feel it was okay at all. I did not feel it was good.” A.L. told her mother about 3
the incident several years later. A.L.’s mother testified Lusk moved to the Floyd
area from Sioux City around April 2012.
C.L. was nine years old at the time of the criminal trial. C.L. testified when
Lusk lived in Sioux City, Lusk touched C.L.’s penis—which C.L. called his
“peeper,”—several times, both over and under his clothing. C.L. also described
an incident which occurred at the house of his uncle in Charles City. C.L. stated
he was sitting next to Lusk on a couch in the living room when other people were
around and Lusk touched his peeper over his clothing. He stated it made him
feel, “[y]ucky inside,” “[b]ecause it felt weird. I didn’t like it even one bit.” After
the family returned from the visit in Charles City, C.L. told his mother about the
incident.
The State presented the testimony of Tammera Bibbins, who was a
forensic interviewer with the Regional Child Protection Center. She testified
generally about delayed disclosure, how children of different ages react to sexual
abuse, interfamilial victimization, and grooming. She also testified a child could
be sexually abused when other people were in the room.
The district court denied Lusk’s motion for judgment of acquittal. A jury
found Lusk guilty of both counts of second-degree sexual abuse. The district
court sentenced Lusk to a term of imprisonment not to exceed twenty-five years
on each count, to be served consecutively. Lusk now appeals.
II. Sufficiency of the Evidence
Lusk claims the State did not present sufficient evidence to support his
convictions. He claims this case is similar to State v. Smith, 508 N.W.2d 101,
103 (Iowa Ct. App. 1993), where we reversed a defendant’s convictions because 4
we found the victims’ allegations of sexual abuse were “inconsistent, self-
contradictory, lacking in experiential detail, and, at times, border on the absurd.”
Lusk states the testimony of A.L. and C.L. raises questions about whether the
alleged incidents happened and, if they occurred, when they happened.
We will uphold a jury’s verdict if there is substantial evidence in the record
to support it. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014). “In reviewing
challenges to the sufficiency of the evidence supporting a guilty verdict, courts
consider all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
Id. at 439–40. Our review on claims challenging the sufficiency of the evidence
is for the correction of errors at law. Id. at 439.
In general, it is for the jury to resolve conflicts in the evidence, pass upon
the credibility of witnesses, and weigh the evidence. State v. Hutchison, 721
N.W.2d 776, 780 (Iowa 2006). “A jury is free to believe or disbelieve any
testimony as it chooses and to give as much weight to the evidence as, in its
judgment, such evidence should receive.” State v. Liggins, 557 N.W.2d 263, 269
(Iowa 1996). An exception arises only when “‘[t]he testimony of a witness [is] so
impossible and absurd and self-contradictory that it should be deemed a nullity
by the court.’” State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001) (quoting Smith,
508 N.W.2d at 103).
The testimony of A.L. and C.L. was not inconsistent, self-contradictory,
lacking in experiential detail, or bordering on the absurd. A.L. and C.L. each
consistently testified where the incidents occurred and gave detailed testimony
about the sexual abuse. While C.L. testified the incident occurred while other 5
people were present in the room, his mother testified there was a confused
atmosphere during the relevant time period because several people and two
dogs were coming in and out of the room and several conversations were taking
place at the same time. It is not implausible Lusk briefly touched C.L.’s “peeper”
over his clothes and at other times under C.L’s clothes. We determine the
evidence in this case does not come within the exception found in Smith. Smith,
508 N.W.2d at 103. We conclude there is substantial evidence in the record to
support Lusk’s convictions.
III. Expert Testimony
Lusk claims the district court abused its discretion by permitting Bibbins to
vouch for the credibility of A.L. and C.L. He states Bibbins purportedly testified
only about the general dynamics of child sexual abuse, but many of the
examples she gave were close to the facts in this case. He claims the district
court should have granted his objections to her testimony.
During the criminal trial, Bibbins began testifying about delayed disclosure
and defense counsel objected.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1294 Filed August 17, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JOHN WINSTON LUSK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra Schroeder,
Judge.
Defendant appeals his convictions on two counts of second-degree sexual
abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Bower, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
BOWER, Judge.
John Lusk appeals his convictions on two counts of second-degree sexual
abuse. We find there is substantial evidence in the record to support his
convictions, and the district court did not abuse its discretion by admitting expert
testimony of a general nature concerning victims of sexual abuse. We affirm
Lusk’s convictions.
I. Background Facts & Proceedings
On June 16, 2014, the State charged Lusk with two counts of sexual
abuse in the second degree, in violation of Iowa Code section 709.3(2) (2013).
One count involved A.L. and the other count involved C.L.—both of whom are
related to Lusk.
Lusk filed a motion in limine seeking to prohibit the State “from eliciting
testimony from an expert witness that vouches for or purports to vouch for the
credibility of the witnesses.” The State did not resist this request. In ruling on the
motion in limine, the district court noted only the State did not resist on this
ground.
At the criminal trial, held in May 2015, A.L. was thirteen years old. She
testified she sometimes visited Lusk in Floyd and described his house. She
testified on one visit, she and her sister were sleeping in the basement when
Lusk came down and asked if she wanted him to rub her back. A.L. stated,
“Well, he started rubbing my back. And then he went—he touched a place that I
do not—I didn’t feel like it was right.” She stated Lusk put his hand under her
underwear and shorts and touched her front private area. A.L. testified, “No, I did
not feel it was okay at all. I did not feel it was good.” A.L. told her mother about 3
the incident several years later. A.L.’s mother testified Lusk moved to the Floyd
area from Sioux City around April 2012.
C.L. was nine years old at the time of the criminal trial. C.L. testified when
Lusk lived in Sioux City, Lusk touched C.L.’s penis—which C.L. called his
“peeper,”—several times, both over and under his clothing. C.L. also described
an incident which occurred at the house of his uncle in Charles City. C.L. stated
he was sitting next to Lusk on a couch in the living room when other people were
around and Lusk touched his peeper over his clothing. He stated it made him
feel, “[y]ucky inside,” “[b]ecause it felt weird. I didn’t like it even one bit.” After
the family returned from the visit in Charles City, C.L. told his mother about the
incident.
The State presented the testimony of Tammera Bibbins, who was a
forensic interviewer with the Regional Child Protection Center. She testified
generally about delayed disclosure, how children of different ages react to sexual
abuse, interfamilial victimization, and grooming. She also testified a child could
be sexually abused when other people were in the room.
The district court denied Lusk’s motion for judgment of acquittal. A jury
found Lusk guilty of both counts of second-degree sexual abuse. The district
court sentenced Lusk to a term of imprisonment not to exceed twenty-five years
on each count, to be served consecutively. Lusk now appeals.
II. Sufficiency of the Evidence
Lusk claims the State did not present sufficient evidence to support his
convictions. He claims this case is similar to State v. Smith, 508 N.W.2d 101,
103 (Iowa Ct. App. 1993), where we reversed a defendant’s convictions because 4
we found the victims’ allegations of sexual abuse were “inconsistent, self-
contradictory, lacking in experiential detail, and, at times, border on the absurd.”
Lusk states the testimony of A.L. and C.L. raises questions about whether the
alleged incidents happened and, if they occurred, when they happened.
We will uphold a jury’s verdict if there is substantial evidence in the record
to support it. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014). “In reviewing
challenges to the sufficiency of the evidence supporting a guilty verdict, courts
consider all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
Id. at 439–40. Our review on claims challenging the sufficiency of the evidence
is for the correction of errors at law. Id. at 439.
In general, it is for the jury to resolve conflicts in the evidence, pass upon
the credibility of witnesses, and weigh the evidence. State v. Hutchison, 721
N.W.2d 776, 780 (Iowa 2006). “A jury is free to believe or disbelieve any
testimony as it chooses and to give as much weight to the evidence as, in its
judgment, such evidence should receive.” State v. Liggins, 557 N.W.2d 263, 269
(Iowa 1996). An exception arises only when “‘[t]he testimony of a witness [is] so
impossible and absurd and self-contradictory that it should be deemed a nullity
by the court.’” State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001) (quoting Smith,
508 N.W.2d at 103).
The testimony of A.L. and C.L. was not inconsistent, self-contradictory,
lacking in experiential detail, or bordering on the absurd. A.L. and C.L. each
consistently testified where the incidents occurred and gave detailed testimony
about the sexual abuse. While C.L. testified the incident occurred while other 5
people were present in the room, his mother testified there was a confused
atmosphere during the relevant time period because several people and two
dogs were coming in and out of the room and several conversations were taking
place at the same time. It is not implausible Lusk briefly touched C.L.’s “peeper”
over his clothes and at other times under C.L’s clothes. We determine the
evidence in this case does not come within the exception found in Smith. Smith,
508 N.W.2d at 103. We conclude there is substantial evidence in the record to
support Lusk’s convictions.
III. Expert Testimony
Lusk claims the district court abused its discretion by permitting Bibbins to
vouch for the credibility of A.L. and C.L. He states Bibbins purportedly testified
only about the general dynamics of child sexual abuse, but many of the
examples she gave were close to the facts in this case. He claims the district
court should have granted his objections to her testimony.
During the criminal trial, Bibbins began testifying about delayed disclosure
and defense counsel objected. Outside the presence of the jury, defense
counsel renewed the motion in limine regarding expert testimony. The State
argued, “[I]t is not vouching for her to simply give information that will aid the trier
of fact because of her specialized knowledge.” The district court stated the ruling
on the motion in limine remained the same. Bibbins was permitted to continue
testifying generally about delayed disclosure.
The prosecutor asked Bibbins if a child could be sexually abused when
other people were around. Defense counsel objected on the ground of vouching,
and the district court overruled the objection. Bibbins testified sexual abuse “can 6
happen in a room full of people.” The prosecutor then asked if that had ever
been disclosed to Bibbins in her own interviews. Defense counsel objected, and
the court ordered the prosecutor to restate the question. The prosecutor then
specified, “In your own experience in dealing with other kids—we’re not talking
about these kids here—have you talked to kids, and have the—have abusers
also talked about doing this in front of other people?” and Bibbins responded,
“Yes.”
“We allow an expert witness to testify generally the victims of child abuse
display certain demeanors.” State v. Jaquez, 856 N.W.2d 663, 666 (Iowa 2014).
“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. The reason for this rule is “a witness’s credibility ‘is not a ‘fact’
in issue’ subject to expert opinion.” State v. Dudley, 856 N.W.2d 668, 676 (Iowa
2014) (citation omitted). It is the function of the jury, not an expert witness, to
determine the credibility of witnesses. Id. at 677. We review the district court’s
ruling on this issue for an abuse of discretion. See id.
Bibbins did not testify the demeanors of A.L. and C.L. were consistent with
sexual abuse. She testified generally about whether child victims of sexual
abuse sometimes delay reporting the abuse and whether sexual abuse of a child
could occur when other people were in the room. We determine the district court
did not abuse its discretion in finding Bibbins did not cross the line and indirectly
vouch for the credibility of A.L. and C.L. 7
On appeal, Lusk also claims Bibbins was improperly permitted to testify
about children’s understanding of time and sexual abuse by a family member.
He did not object to this testimony. We conclude these issues have not been
preserved for our review. See State v. Jefferson, 574 N.W.2d 268, 278 (Iowa
1997) (noting “issues must be presented to and passed upon by the district court
before they can be raised and decided on appeal”).
We affirm Lusk’s convictions.
AFFIRMED.
Blane, S.J., concurs; Danilson, C.J., concurs specially. 8
DANILSON, Chief Judge (concurring specially)
I write specially as I believe these facts are more akin to State v.
Pitsenbarger, No. 14-0060, 2015 WL 1815989 (Iowa Ct. App. Apr. 22, 2015),
than the cases relied upon by the majority and should be distinguished from
Pitsenbarger. In Pitsenbarger, the State attempted to sanitize its direct
examination of its expert witness by not specifically referencing testimony, past
statements, past actions, and past behaviors of the alleged victim. Id. at *8.
Nevertheless, we concluded impermissible vouching resulted because the State
went through a methodical process via statistics, reports, and the expert’s
opinions on each significant, purported, and disputed fact in the case by
hypothetical questions. Id. Here, the State’s expert walked the thin line between
proper expert testimony and vouching for the credibility of the victims but did not
cross it. The expert testified to issues concerning delayed reporting and if
perpetrators commit sexual abuse when others are present in the same room.
The jury still had to determine if the victims were telling the truth, unlike in
Pitsenbarger, where the jury only had to insert the name of the alleged victim into
the series of hypothetical questions to determine credibility. I agree Lusk’s
convictions should be affirmed.