IN THE COURT OF APPEALS OF IOWA
No. 16-1906 Filed November 8, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
SHAUN SIMONICH, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Defendant appeals his convictions for sexual abuse in the second degree
and incest. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
BLANE, Senior Judge.
Appellant Shaun Simonich appeals his convictions and judgment following
a bench trial and verdict finding him guilty of sexual abuse in the second degree,
a class “B” felony, in violation of Iowa Code section 709.3 (2015); and incest, a
class “D” felony, in violation of Iowa Code section 726.2. On appeal he asserts
the verdicts are not supported by substantial evidence and his trial counsel was
ineffective in numerous ways, including failing to file a motion for new trial
challenging the trial court’s findings as to credibility and DNA evidence, failing to
object to claimed vouching testimony of two witnesses, and failing to object to the
trial judge’s questioning of two witnesses. Simonich asserts there was
cumulative error. For reasons discussed below, we find sufficient evidence
supports the guilty verdicts, defense counsel was not ineffective, and there was
not cumulative error. We therefore affirm the convictions and judgment.
I. Procedural Background.
On March 10, 2015, the State charged Simonich with sexual abuse in the
second degree and incest. Simonich was arraigned and entered a plea of not
guilty. On June 24, 2016, Simonich filed a written waiver of his right to a jury
trial. After confirming the waiver of a jury on the record, the court held a bench
trial on July 6 and 7. The matter was submitted to the district court for ruling. On
September 6, the district court issued written findings of fact and verdicts finding
Simonich guilty as charged. The court sentenced Simonich on October 31.
Simonich timely filed a notice of appeal on November 7. 3
II. Factual Background.
L.S., the son of Simonich, was born in January of 2005. On February 16,
2015, L.S. was at home, where he lived with his mother and Simonich. L.S.
came into the living room to talk to his father. Simonich was sitting in a rocking
chair. After talking, Simonich pulled down his own pants and then pulled down
L.S.’s pants, picked L.S. up and placed him on his lap, with L.S. facing away from
Simonich. Simonich’s hands were on L.S.’s waist and he moved L.S. onto his
penis, which he inserted approximately three inches into L.S.’s anus, hurting L.S.
L.S. testified Simonich did not touch his (L.S.’s) penis or move other than to put
L.S. on Simonich’s penis. According to L.S., the incident lasted approximately
fifteen minutes before his mother walked into the room and saw them.
L.S.’s mother, Carol, had been in the home office. She walked into the
living room and saw Simonich with L.S. on his lap. She testified that Simonich
had been drinking heavily and refusing to take his medications for several days.
She observed Simonich and L.S. had their pants pulled down and they appeared
to be “having sex.” L.S. was sitting “on top of Shaun with his back facing towards
Shaun. And then he [Simonich] was moving in a motion like a sexual motion.”
Carol was shocked and asked what was happening; Simonich said he was
“fucking his son.” Simonich then asked his wife if she “wanted to suck his dick
too.” Carol walked outside and called the police to report that her husband was
molesting their son.
According to L.S., his mother walked outside to call the police and
Simonich pushed L.S. off of his lap, pulled up his own pants, and followed her
outside. Police officers arrived quickly afterward. When L.S. initially spoke with 4
an officer, he was “very scared so I kind of really didn’t answer. But the second
time I got calmed down and then I told him.” L.S. was afraid that “[his] dad was
going to get in trouble.” Later, when the officer spoke to L.S. again, L.S. told him
that “my dad put his penis into my butt.”
Officers collected the clothing worn by Simonich and L.S. that day and
arranged an interview, physical exam, and a sexual assault kit for L.S. at the
Child Protection Center (CPC) that evening. The CPC forensic interviewer, Katie
Strub, testified L.S. was unemotional and did not offer information to her unless
she asked, but when asked, he answered her questions. She also testified L.S.’s
demeanor during the interview was “consistent with [her] knowledge and
experience in this field.”
At the CPC, a nurse practitioner, Julie Ritland, physically examined L.S.
and completed the sexual assault kit by swabbing L.S. for DNA testing. At trial,
Ritland could not remember how many swabs she did, but she probably swabbed
between L.S.’s legs, around his anus, and a small amount in the anus based on
the allegations. Contrary to procedure, two swabs were both placed in the same
sleeve, allowing for possible cross-contamination. Police swabbed Simonich’s
penis and obtained a buccal swab from Simonich for DNA testing. DNA analysis
revealed that a profile matching Simonich’s was detected on either L.S.’s inner
thigh or on the outside of L.S.’s anus. Simonich’s genetic profile was also
discovered on his son’s underwear. In both instances, the likelihood of another
person matching Simonich’s DNA profile was determined to be less than 1 in 100
billion. 5
III. Discussion.
A. Whether the State Presented Substantial Evidence Establishing that Simonich Sexually Abused L.S.
i. Standard of Review.
This court reviews sufficiency-of-the-evidence challenges for the
correction of errors at law. State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011).
We review a district court’s findings following a bench trial as we would a jury
verdict. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). A district court’s
finding of guilt is binding on the appellate court unless we determine the record
lacked substantial evidence to support the finding of guilt. State v. Abbas, 561
N.W.2d 72, 74 (Iowa 1997).
In evaluating challenges to the sufficiency of the evidence, we review the
record in a light most favorable to the State; the court makes any legitimate
inferences and presumptions that may fairly and reasonably be deduced from the
evidence in the record. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). The test
for whether the evidence is sufficient to withstand appellate scrutiny involves an
inquiry as to whether the evidence is “substantial.” State v. Astello, 602 N.W.2d
190, 197 (Iowa Ct. App. 1999). “Substantial evidence does not, however, denote
some elevated quantity of proof.” Id. The findings of the factfinder are to be
broadly and liberally construed, rather than narrowly, and in cases of ambiguity,
they will be construed to uphold, rather than defeat, the verdict. State v. Dible,
538 N.W.2d 267, 270 (Iowa 1995). It is necessary to consider all the evidence in
the record and not just the evidence supporting the verdict to determine whether 6
there is substantial evidence to support the charge. State v. Bass, 349 N.W.2d
498, 500 (Iowa 1984) (quoting State v. Blair, 347 N.W.2d 416, 419 (Iowa 1984)).
Evidence meets the threshold criterion of substantiality if it would convince
a rational factfinder that the defendant is guilty beyond a reasonable doubt.
State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). “The [factfinder] is free to
believe or disbelieve any testimony as it chooses and to give weight to the
evidence as in its judgment such evidence should receive.” State v. Thornton,
498 N.W.2d 670, 673 (Iowa 1993).
ii. Merits.
In this case, the only element in dispute at trial for either offense was
whether a sex act occurred. A person who performs a sex act with a child under
twelve years of age commits second-degree sexual abuse. Iowa Code
§ 709.3(1)(b). A person who commits a sex act with another known to be a
“person, either legitimately or illegitimately, as [a] descendant . . . , commits
incest. Incest is a class ‘D’ felony.” Iowa Code § 726.2. A “sex act” is defined as
[A]ny sexual contact between two or more persons by any of the following: 1. Penetration of the penis into the vagina or anus. 2. Contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person. 3.Contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment . . . . 4. Ejaculation onto the person of another. 5. By use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
Iowa Code § 702.17. 7
In this case, the State presented substantial evidence establishing that
Simonich sexually abused ten-year-old L.S. As detailed above, L.S. testified that
his father pulled down his own pants and then L.S.’s pants while Simonich was
sitting on a chair in the living room, positioned L.S. on his lap, and inserted his
penis into L.S.’s anus. The trial court found the child to be “particularly credible
regarding his recitation of the incident.”
L.S.’s mother and Simonich’s wife, Carol, was an eyewitness to her
intoxicated husband’s sexual abuse of their son. As she walked into the living
room, she saw her son on his father’s lap, both with their pants pulled down.
Carol witnessed Simonich and their ten-year-old son “having sex,” or moving
“back and forth” in a “sexual way.” Simonich told his wife he was “fucking his
son” and asked her if she would like to perform oral sex on him. She
immediately walked outside and called the police.
Physical evidence also corroborated the accounts of L.S. and Carol
Simonich. DNA evidence linking Simonich to the sexual abuse of his son was
presented at trial. Genetic material matching Simonich’s DNA profile was found
on his son’s inner thigh or the outside circumference of his anus. Further, DNA
matching Simonich’s genetic profile was also detected in L.S.’s underwear. In
both instances, the likelihood of another person matching Simonich’s DNA profile
was determined to be less than 1 in 100 billion.
The district court made the following fact findings:
The Court finds from the credible testimony of L.S. and from the DNA evidence submitted that contact occurred between the genitalia or penis of the defendant and the anus of L.S. The child testified the defendant inserted his penis into L.S.’s anus. Whether actual penetration occurred is irrelevant. Contact is all that is 8
necessary. The Court finds the requisite contact between the defendant’s penis and the victim’s anus occurred with proof beyond a reasonable doubt. The Court further finds with proof beyond a reasonable doubt the act or contact was sexual in nature.
The district court’s findings are supported by substantial evidence establishing
that Simonich was guilty of second-degree sexual abuse and incest.
Simonich also challenges the DNA evidence presented at trial. As
indicated, the sexual assault kit containing samples taken from L.S.’s body
included a “miscellaneous” envelope with a swab labeled “inner thigh” and a
swab labeled “circumferential anus.” Both swabs were placed in one sleeve
inside the miscellaneous collection envelope. Nurse practitioner Julie Ritland
testified that she and another nurse completed the sexual assault kit in this case
and that the two swabs would have ideally been put into different sleeves so that
there would be no possibility of commingling. The criminalist who performed the
DNA testing, Tara Scott, testified that she tested one of the two swabs labeled
“inner thigh/circumferential anus” from inside the miscellaneous collection
envelope. She opined that the risk of commingling was possible, but unlikely,
and would result only if the swabs were “soaking wet.”
The district court considered this testimony and ruled that the potential
commingling of the two swabs in the same sleeve went to the weight of the
evidence rather than its admissibility. As the court correctly noted,
the fact remains, even if the [samples] were commingled, even if these samples were ultimately cross-contaminated, all that suggests to me is that either this DNA sample was found in the thigh area or . . . it was found in the circumference of the anus. It doesn’t tell me with any degree of specificity that it occurred in one over the other, but the results tell me that DNA was present in one of those two places. 9
In later summarizing the testimony in its findings, the court went on to find:
The swab from the inner thigh and/or the circumference of the anus of L.S. was tested. The profile developed indicated the presence of a mixture of DNA from more than one contributor. The profile of the major contributor was developed and determined to match the defendant. The major DNA profile developed from the inner thigh and/or the circumference of the anus of L.S. matched the known DNA profile of the defendant. The probability of finding this profile in a population of unrelated individuals chosen at random would be less than 1 out of 100 billion. Much emphasis was placed upon the commingling of the swabs. Clearly the act was in error. Clearly the act was against all acceptable protocols. The transfer of DNA is problematic; however, in the end, the defendant’s DNA was determined to be present in either the circumference of L.S.’s anus or in the inner thigh of L.S. (which was described to have been swabbed in very close proximity to the circumference of the anus and was no more than an inch apart).
The substance of Julie Ritland’s testimony supports the court’s
conclusions about the procedures employed. The factfinder could, and did,
evaluate the DNA evidence in light of the witness’s testimony, and correctly
determined that ultimately, the incorrect placement of the two swabs in one
sleeve was of little consequence. The mistake with the swabs did not negate
Ritland’s knowledge of the underlying procedures employed in the course of her
duties as a nurse practitioner, trained in the collection of bodily samples. In
addition, as noted, Simonich’s genetic profile was discovered not only on his
son’s body but on his underwear, with no corresponding commingling claim. The
district court properly considered the DNA evidence, and it does not provide a
basis for us to find a lack of substantial evidence to support Simonich’s
convictions. 10
B. Whether Trial Counsel Rendered Effective Assistance.
Ineffective-assistance-of-counsel claims are reviewed de novo. Everett v.
State, 789 N.W.2d 151, 155 (Iowa 2010).
To prevail on an ineffective-assistance-of-counsel claim involving
complaints of specific acts or omissions, the defendant must show that “(1)
counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.”
State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). Ultimately, the test of
ineffective assistance of counsel rests on whether counsel’s performance was
reasonably effective; the defendant must show that the performance fell below an
objective standard of reasonableness such that his lawyer was not functioning as
“counsel” as guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 688 (1984).
Judicial scrutiny of counsel’s performance is highly deferential, and this
court indulges in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Id. at 689. A defendant is not
entitled to perfect representation but rather only that which is within the range of
normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
“Improvident trial strategy, miscalculated tactics, [or] mistakes in judgment do not
necessarily amount to ineffective assistance of counsel.” Osborn v. State, 573
N.W.2d 917, 922 (Iowa 1998). 11
Resolution of claims of ineffective assistance of counsel is generally
reserved for postconviction review by appellate courts because of the
seriousness of the claim to counsel, whose performance is being challenged, as
well as the fairness to the proceedings in which the ineffective assistance is
alleged to have occurred. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). If a
defendant wishes to have an ineffective-assistance claim resolved on direct
appeal, the defendant will be required to establish an adequate record to allow
the appellate court to address the issue. State v. Johnson, 784 N.W.2d 192, 198
(Iowa 2010). If the defendant requests that the court decide the claim on direct
appeal, it is for the court to determine whether the record is adequate and, if so,
to resolve the claim. Id. If, however, the court determines the claim cannot be
addressed on appeal, the court must preserve it for a possible postconviction-
relief proceeding, regardless of the court’s view of the potential viability of the
claim. Id. Upon our review, we find the record adequate to address the
ineffective-assistance claims here.
a. Failing to Object to Claimed Vouching Evidence.
Simonich contends that defense counsel should have made two
evidentiary objections based on an improper vouching theory under State v.
Dudley, 856 N.W.2d 668 (Iowa 2014). He asserts counsel was ineffective for
failing to do so.
1. Katie Strub.
At trial, Katie Strub testified:
Q. What were your observations of [L.S] during that interview? A. Um, [L.S.] was very reserved during the interview. His affect was very flat, and by that I mean he was pretty 12
unemotional. He did not offer much information to me unless I asked him specifically for it. But when I did ask him questions, he did answer them and even clarify when I didn’t understand. Q. And were his statements to you during the interview consistent throughout your interview? A. Yes. Q. And was your description of his demeanor during your interview consistent with your knowledge and experience in this field? A. Yes.
In the findings, the trial judge summarized this testimony: “Ms. Strub
testified L.S. was reserved, unemotional, and would not offer information unless
asked directly, but L.S.’s behavior was consistent with individuals of his age who
have gone through similar situations.” (Emphasis added.) Simonich contends
this last comment is not only a misstatement of the testimony but also constitutes
expert vouching for the credibility of L.S.
A witness may not directly or indirectly opine on the credibility of another
witness. See Dudley, 856 N.W.2d at 676. Iowa courts “are generally committed
to a liberal rule which allows opinion testimony if it will aid the jury in screening
the properly admitted evidence to ascertain the truth.” State v. Myers, 382
N.W.2d 91, 93 (Iowa 1986). However, this liberal rule does not extend to opinion
testimony that vouches for or bolsters the credibility of another witness. See,
e.g., Dudley, 856 N.W.2d at 676 (“We see no reason to overturn this well-settled
Iowa law prohibiting an expert witness from commenting on the credibility of a
victim in a criminal sex abuse proceeding.”); see also Iowa R. Evid. 5.701
(limiting the opinion testimony of a lay witness). “Our system of justice vests the
[factfinder] with the function of evaluating a witness’s credibility.” Dudley, 856
N.W.2d at 677 (citing State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992)). 13
“[V]eracity is not a ‘fact in issue’ subject to expert opinion.” Hulbert, 481 N.W.2d
at 332.
Strub did not technically use the language attributed to her. She
answered yes to a leading question posed by the State’s attorney, which used
the word “demeanor.” The district court used the word “behavior.” Although not
identical, the words are sufficiently similar in meaning that it cannot be found the
court misstated Strub’s testimony. The leading question then asked if L.S.’s
demeanor was “consistent with your knowledge and experience in this field,” to
which witness Strub’s answer was “yes.” The district court’s findings interpreted
this as Strub testifying L.S.’s demeanor or behavior was “consistent with
individuals of his age who have gone through similar situations.” We agree that
Strub’s actual testimony does not support the trial court’s written finding and this
was a misstatement.
Our inquiry does not stop here. Was Strub’s actual testimony a vouching
for L.S.’s credibility? The leading question asked Strub about consistency with
her own knowledge and experience in the field; it did not mention anything about
children, or those of a similar age to L.S., or L.S. going through similar situations
as other children. Strub’s affirmative answer to the question was that L.S.’s
demeanor was consistent with her “knowledge and experience in this field.”
What her knowledge and experience are was not offered. It is unknown if that
knowledge and experience is that children with L.S.’s demeanor are truthful or
untruthful. We find Strub’s testimony was neither a direct nor even an indirect
vouching. 14
Assuming arguendo that counsel should have lodged an objection,
however, Simonich cannot establish resulting prejudice, as he must. As
indicated, the court found L.S. “particularly credible” at trial and did not mention
Strub’s testimony when making this specific finding. See State v. Prince, No. 16-
1455, 2017 WL 3525152, at *2 (Iowa Ct. App. Aug. 16, 2017) (holding improper
vouching testimony was not prejudicial where the court did not rely on the
statement in making its determination of guilt). Again, in light of the mother’s
eyewitness testimony and the DNA evidence implicating Simonich, both of which
corroborated L.S.’s account, Simonich cannot establish that an objection to
Strub’s testimony in this regard would have resulted in his acquittal.
2. Julie Ritland.
Simonich claims his trial counsel should have objected to testimony from
nurse practitioner Julie Ritland as to the sexual assault. Ritland responded to a
general question about a lack of physical findings in a sexual assault scenario,
that “[r]esearch shows that the majority of anal penetration does not result in
injury. The vast majority of the time there is no injury associated with anal
penetration.”
This testimony did not vouch for the credibility of a witness, as prohibited
by Dudley. The statement was recitation of a medical fact designed to educate
the trier-of-fact on a subject with which the court would likely be unfamiliar.
Expert testimony couched in general terms dispelling a common misconception
is admissible, even under Dudley. See 856 N.W.2d at 675–76 (noting that expert
testimony in child sex abuse cases can be “very beneficial” to assist the jury and
dispel misconceptions); see also State v. Moore, No. 10-1902, 2012 WL 15
3195779, at *7–8 (Iowa Ct. App. Aug. 8, 2012) (finding gynecologist’s testimony
“[t]here is no pattern of physical findings that is indicative one way or the other of
sexual assault” and “it is common to find no injuries to sexual assault because
adult sex organs are anatomically designed ‘to fit together’” was not improper
vouching testimony); Brown v. State, No. 03-1520, 2004 WL 2387044, at *2
(Iowa Ct. App. Oct. 27, 2004) (finding no vouching impropriety from medical
expert’s testimony in a sexual abuse case that child’s rectal injuries were not
caused by a bowel movement). The same is true here. Defense counsel had no
duty to object to admissible medical evidence couched in general terms and was
not ineffective in this regard.
b. Failure to File Motion for New Trial.
Simonich contends defense counsel was ineffective in not filing a motion
for new trial based on the alleged misstatements or misinterpretations in the
district court’s factual findings of the trial testimony. Simonich takes issues with
Strub’s testimony regarding L.S.’s demeanor during the interview as consistent
with her experience and Ritland’s testimony concerning the location and
improper preservation of the swabbing of L.S.’s body.
Simonich asserts that the district court relied on facts outside the record,
citing State v. Blanford, 306 N.W.2d 93, 98 (Iowa 1981). As noted above, the
district court made a misstatement in its findings when it found Strub testified that
L.S.’s behavior was “consistent with individuals of his age who have gone
through similar situations.” Our review of the record shows she did not state this. 16
However, our review also shows that contrary to the district court’s finding, which
would have been vouching testimony, Strub’s testimony was not vouching. 1
The defendant still shoulders the burden to establish a reasonable
likelihood that the result of the proceeding would have been different under
Strickland. See generally Everett, 789 N.W.2d at 157–58 (distinguishing
between the burdens and standards for preserved claims and ineffective-
assistance-of-counsel claims). Simonich asserts the ineffectiveness was in his
trial counsel’s failure to file a motion for new trial. His claim fails for two reasons.
First, if trial counsel had filed a motion for new trial based upon the court’s
misstatement, since this was a bench trial, the district court could have corrected
the misstatement. As we found above, the district court made no error as to
Ritland and the DNA evidence.
We are even more convinced that Simonich cannot prevail on this claim
because he cannot prove the second prong under Strickland of prejudice. Here,
given the strength of the State’s case against him, Simonich cannot established a
reasonable likelihood that the challenge to the court’s findings on two minor
points of evidence had any effect on these convictions, and his claim of
ineffective assistance on this point is rejected.
1 In sex-abuse cases where the State’s case rests on a witness’s credibility, improper vouching is prejudicial. See, e.g., State v. Tjernagel, No. 15-1519, 2017 WL 108291, at *8 (Iowa Ct. App. Jan. 11, 2017) (finding prejudice where “the State’s case . . . rested entirely on the credibility of the witnesses[,] . . . [t]here was no physical evidence of the alleged abuse and no witnesses other than the complaining witness,” and “the expert witnesses’ vouching testimony here ‘was pervasive—not just a single statement’” (citation omitted)). However, here we find the misstatement was in finding vouching testimony, when in fact, the actual testimony does not rise to the level of vouching. 17
c. Failing to Object to the Trial Court’s Questioning of Witnesses.
Simonich next contends defense counsel should have objected to the trial
court questioning L.S. and criminalist Tara Scott. Iowa Rule of Evidence
5.614(b) provides: “Examining. When necessary, the court may examine a
witness regardless of who calls the witness.” Our supreme court has recognized
the power of the trial judge to question witnesses, even in a criminal case, but it
has cautioned against assuming the role of an advocate. State v. Thornburgh,
220 N.W.2d 579, 585 (Iowa 1974). Judges are encouraged not to enter the fray
with their own interrogation of witnesses. And when cause to do so exists,
restraint must be used. By engaging in the examination of witnesses the court
becomes vulnerable to a multiplicity of criticisms; bias, prejudice, or advocacy are
some of those. “It must always be borne in mind that jurors are particularly
sensitive to the presiding judge’s views and may be unduly influenced by what
they perceive those views to be.” State v. Cuevas, 288 N.W.2d 525, 532–33
(Iowa 1980) (citation omitted). The trial judge’s role is more than that of a “mere
moderator”; “the trial judge may ask questions of witnesses in an attempt to
clarify testimony and to elicit facts necessary to a clear presentation of the
issues.” State v. Dixon, 534 N.W.2d 435, 441 (Iowa 1995), abrogated on other
grounds by State v. Huss, 657 N.W.2d 447, 453–54 (Iowa 2003).
Here, after the State’s redirect examination, the court asked L.S.—who
had previously testified that his mother had walked outside after witnessing the
abuse and called 911—whether he actually heard her or just surmised what had 18
occurred. L.S. clarified that he “kind of figured that she was calling the cops” but
had not overheard the conversation.
After receiving direct, cross-examination, redirect, and re-cross
examination testimony on the subject of Simonich’s DNA match, the court asked
criminalist Tara Scott if the underwear results were from a stain or a cutting, and
asked where on the underwear the sample was located. Scott explained she
conducted an alternate light source screening test for seminal fluid on L.S.’s
underwear and took a cutting from the area covering the buttocks.
Simonich contends defense counsel had an obligation to object to the
district court’s questioning of these two witnesses. Counsel had no reasonable
basis to conclude, however, that the district court had overstepped its bounds in
asking a few clarifying questions. Like the court’s inquiries in State v. Peterson,
No. 05-0582, 2006 WL 1628047, at *5 (Iowa Ct. App. June 14, 2006), the court’s
questioning here was “limited in scope, neutrally phrased, and not designed to
elicit any particular response.” The court’s query about whether L.S. had actually
heard his mother phoning 911 when she stepped outside was a natural question
flowing from the testimony, and the location of Simonich’s DNA on his son’s
underwear was of interest, especially in light of the potentially commingled bodily
DNA samples involving the inner thigh and circumference of the anus. The court
did not take on the role of an advocate; it simply elicited admissible facts by
asking impartial questions. The court also gave the lawyers the opportunity to
ask additional follow-up questions based on its questioning, which was declined
in one instance and accepted in the other. 19
We conclude the court’s questioning was not only appropriate under the
legal standard discussed above, it was also not prejudicial to Simonich and did
not demonstate any bias on the part of the court. Even critical evidence elicited
by questions from the court does not establish that the court abused its
discretion; “[a] trial is not a game; it is a serious quest for the truth.” Peterson,
2006 WL 1628047, at *4 (quoting Mills v. State, 386 N.W.2d 574, 576 (Iowa
2006)).
We also note that much of the concern with a court’s questioning of
witnesses is its potential impact on a jury. Cuevas, 288 N.W.2d at 532–33. This
was not a concern here since this was a bench trial. No jury heard the court’s
questions. “A trial judge is allowed greater latitude to comment during a bench
trial than might be acceptable during a jury trial.” In re Marriage of Worthington,
504 N.W.2d 147, 149 (Iowa Ct. App. 1993). Concerns that arise when jurors
hear questions posited by the judge are simply not present in the context of a
bench trial. Defense counsel was not ineffective in declining to object.
Simonich suggests that this court view the district court’s conduct here as
structural error. Structural errors are not mere errors in the proceeding, but
errors affecting the entire framework of the trial, such as an actual or constructive
complete denial of counsel or the absence of any meaningful adversarial testing.
Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). Prejudice may be presumed if
structural error occurs. Id. The United States Supreme Court recently observed,
however, that when structural error is alleged in the context of ineffective
assistance of counsel rather than on a preserved claim, a showing of prejudice is
generally nonetheless required: 20
In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective assistance claim, however, finality concerns are far more pronounced.
Weaver v. Massachusetts, 137 S. Ct. 1899, 1913 (2017) (requiring petitioner to
demonstrate prejudice in the context of a structural error/ineffective-assistance
claim).
On this claim, Simonich cannot prevail. We have found that his counsel
was not ineffective in not objecting to (1) the testimony of witnesses Strub and
Ritland and (2) the trial judge’s questioning of two witnesses. Since we have not
found counsel ineffective, we cannot find structural error premised on those
claims, and this claim is rejected.
d. Cumulative Error.
Simonich finally contends that he is entitled to relief on ineffective-
assistance grounds based on the cumulative-error doctrine. As discussed
above, we have found that none of Simonich’s allegations of ineffective
assistance have merit. We similarly find there is no cumulative error.
Moreover, the evidence establishing that Simonich committed second-
degree sexual abuse and incest was overwhelming. Given L.S.’s credible
testimony, the eyewitness testimony from Carol Simonich observing her husband
in the act of sexually abusing their son, and the DNA evidence implicating
Simonich, any alleged errors on counsel’s part, alone or in tandem, had no effect
on the guilty verdicts. There is no reasonable likelihood of a different verdict, 21
even if his trial counsel had performed differently, in light of the strength of the
evidence against him.
IV. Conclusion.
Having addressed each of Simonich’s appeal points and finding none
have merit, his convictions for sexual abuse in the second degree and incest are
affirmed.