IN THE COURT OF APPEALS OF IOWA
No. 15-1984
Filed February 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THOMAS AARON INGRAM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fremont County, Gregory W.
Steensland, Judge.
Thomas Ingram appeals from his convictions and sentences for sexual
abuse in the third degree, assault, and lascivious acts with a child following a jury
trial. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Kristin A.
Guddall (until withdrawal), Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.
Thomas Ingram appeals from his convictions and sentences for sexual
abuse in the third degree, assault, and lascivious acts with a child following a jury
trial. He argues the district court abused its discretion by admitting the child
victim’s diary into evidence and his trial counsel rendered ineffective assistance
in failing to object to impermissible vouching testimony by the expert witness.
Upon our review, we affirm.
I. Background Facts and Proceedings
In September 2014, the State filed a trial information charging Ingram with
two counts of sexual abuse in the third degree, two counts of lascivious acts with
a child, and two counts of indecent contact with a child, stemming from
allegations Ingram sexually abused his twelve-year-old step-daughter on July 11
and August 29, 2014. Prior to trial, the State dismissed the two counts of
indecent contact with a child.
In September 2015, a jury convicted Ingram of one count of sexual abuse
in the third degree, a class “C” felony, in violation of Iowa Code section
709.4(1)(a) (2014), for conduct occurring on July 11; one count of assault (a
lesser-included offense of third-degree sexual abuse), a simple misdemeanor, in
violation of section 708.2(6), regarding conduct occurring on August 29; and
lascivious acts with a child, a class “D” felony, in violation of section 709.8(2)(b),
concerning conduct occurring on July 11. The jury found Ingram not guilty of
lascivious acts with a child for conduct occurring on August 29.
In October, the district court entered judgment of conviction and
sentenced Ingram to indeterminate terms of imprisonment for no more than ten
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years on the sexual-abuse charge, no more than five years on the charge of
lascivious acts with a child, and not to exceed thirty days in jail for the assault
charge, with credit for time served. Ingram appeals.
II. Scope and Standard of Review
We review a district court’s evidentiary rulings for an abuse of discretion.
State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). An abuse of discretion
occurs “[w]hen the district court exercises its discretion on grounds or for reasons
clearly untenable or to an extent clearly unreasonable.” State v. Dudley, 856
N.W.2d 668, 675 (Iowa 2014). A ground or reason is untenable if it is “based on
an erroneous application of the law or not supported by substantial evidence.”
Id. Even if there has been an abuse of discretion, we need not reverse if the
inclusion or exclusion was harmless to the defendant. State v. Reynolds, 765
N.W.2d 283, 288 (Iowa 2009), overruled on other grounds by Alcala v. Marriott
Int’l, Inc., 880 N.W.2d 699, 708 (Iowa 2016). “An erroneous evidentiary ruling is
harmless if it does not cause prejudice.” State v. Redmond, 803 N.W.2d 112,
127 (Iowa 2011). “[U]nder [Iowa Rule of Evidence] 5.103(a) we presume
prejudice—that is, a substantial right of the defendant is affected—and reverse
unless the record affirmatively establishes otherwise.” State v. Sullivan, 679
N.W.2d 19, 30 (Iowa 2004). Rulings on the admissibility of hearsay evidence are
reviewed for correction of errors at law. State v. Buenaventura, 660 N.W.2d 38,
50 (Iowa 2003).
We review claims of ineffective assistance of counsel de novo because
the claims implicate the defendant’s Sixth Amendment right to counsel. State v.
Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). Generally, we preserve
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ineffective-assistance-of-counsel claims for possible postconviction-relief
proceedings when a more thorough record can be developed and counsel is
given an opportunity to explain his or her conduct. State v. Biddle, 652 N.W.2d
191, 203 (Iowa 2002). However, an ineffective-assistance claim may be raised
and decided on direct appeal when the record is adequate to address the claim.
Iowa Code § 814.7(2), (3).
III. Analysis
A. Diary
Ingram claims the district court abused its discretion by admitting M.H.’s
diary into evidence and the error was not harmless. The State contends error
was not preserved on this issue. Anticipating the State’s argument, Ingram
alternatively claims his trial counsel rendered ineffective assistance in failing to
object to the admission of the diary because it contained hearsay. See Iowa R.
Evid. 5.802. Ingram also complains his trial counsel should have argued that,
even if the evidence was relevant and admissible, the probative value was
substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid.
5.403.
Ingram has adequately raised this issue under the ineffective-assistance-
of-counsel rubric. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010)
(“Ineffective-assistance-of-counsel claims are an exception to the traditional
error-preservation rules.”). The record is adequate to address Ingram’s claims
on direct appeal. See Iowa Code § 814.7(2), (3).
To succeed on a claim of ineffective assistance of counsel, Ingram must
show by a preponderance of the evidence: “(1) his trial counsel failed to perform
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an essential duty, and (2) this failure resulted in prejudice.” Thorndike, 860
N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012));
accord Strickland v. Washington, 466 U.S. 668, 687 (1984). “Under the first
prong, ‘we measure counsel’s performance against the standard of a reasonably
competent practitioner.’” Thorndike, 860 N.W.2d at 320 (quoting State v. Clay,
824 N.W.2d 488, 495 (Iowa 2012)). “Under the second prong, the [defendant]
must establish that prejudice resulted from counsel’s failure to perform an
essential duty.” Id. Failure to prove either prong is fatal to the claim. See State
v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006). In examining Ingram’s claims,
we presume trial counsel performed their duties competently. See Thorndike,
860 N.W.2d at 320.
The State entered into evidence M.H.’s diary containing entries written by
M.H. on July 10 and July 11, 2014. M.H. testified at trial that she wrote in her
diary immediately after Ingram allegedly abused her. On July 10, M.H. wrote:
Hey I feel like shit. I hate keeping secrets from my mom.
Well I don’t know how to put it but here it goes my stepdad has
been raping me when my mom is at the stores and at the gas
[stations].
[A]nd I want to tell my mom but she loves him and she prbly
thanks Im lying Mom if ur reading this I’m srry I didn’t tell you and I
love you and Im not lying I woldn’t lyie about this shit yes I’m
starting to cry. What are we gonna do about this what if he does
this to my sisters!! There to [young] and I love theme and you and
if u read this and dont leave him It’s not gonna stop with me Srry
but its true.
We can go to the farm or go some where eles I just want to
leave I dont know were but this what he said if me and your mom
split up than your Aunt is gonna be the first I kill!!
Im srry thats all I can say but I wanted to run away sence the
first time he started touching me but I didn’t cause I couldn’t do that
to you. Can I run away Ill keep in touch with you I promise and that
scare you acked about was from me cuting my self so are the other
scares on my arms.
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Some ppl in school know that i cutt my self I just want to
leave and get away and I Don’t want to see him again the last time
he raped me was a colp days ago Iv been though a lot and Im still
here I dont want to be but I’m not gonna do that yet!!! Ill tell you
befor I do Mom Im srry that you had to find out this way!!! but I
could tell you no other way!!!
On July 11, M.H. wrote: “When mom left he raped me again and I was on
my period he isn’t gonna stop….ugh.”
At trial, thirteen-year-old M.H. testified Ingram had “raped” her at least
twice. When asked to define rape, she stated, “He sexually touched me without
me saying it was okay.” She testified he touched her vagina with his hands and
his penis while she was in her bedroom and it was dark out. She testified she
told him to stop, and he put his hand over her mouth. She testified it hurt her
vagina. She also testified her mother was at the gas station on one occasion and
was sleeping the other time. M.H. testified she could not tell her mother about
the alleged abuse because her mother was in a relationship with Ingram and had
just had a baby with him. She also testified she did not tell her mother because
she was scared and Ingram had threatened to kill her family, starting with her
aunt, if M.H. told anyone. She further testified she did not think anyone would
believe her if she told.
Ingram contends his trial counsel should have objected to M.H.’s diary as
hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial . . . , offered in evidence to prove the truth of the matter
asserted.” Iowa R. Evid. 5.801(c). Hearsay is not admissible, unless it fits within
one of the recognized exceptions. Iowa R. Evid. 5.802; Buenaventura, 660
N.W.2d at 51. Under Iowa Rule of Evidence 5.803(3), a hearsay statement is
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admissible when it reflects on “the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health),” but not when it’s “a statement of
memory or belief to prove the fact remembered or believed unless it relates to
the execution, revocation, identification, or terms of declarant’s will.” “The
admission of such evidence under this exception is dependent upon the
relevancy of the declarant’s then existing state of mind, emotion, sensation, or
physical condition.” State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (citing
Buenaventura, 660 N.W.2d at 51).
M.H.’s diary entries demonstrate her “[t]hen existing mental, emotional, or
physical condition” at the time she wrote them—that she was scared of Ingram,
she feared for the safety of her family and herself, she wanted to run away from
home to get away from Ingram, and she was afraid Ingram would sexually abuse
her younger sisters. Her state of mind was relevant to show she did not consent
to the sex act, but rather, “[t]he act [was] done by force or against [her] will.”
Iowa Code § 709.4(a).
Ingram also complains his trial counsel should have objected to M.H.’s
diary as unfairly prejudicial. “Evidence which is not relevant is not admissible.”
Iowa R. Evid. 5.402. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Iowa R.
Evid. 5.401. “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice . . . .” Iowa R. Evid.
5.403. Evidence is unfairly prejudicial if it “appeals to the jury’s sympathies,
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arouses its sense of horror, provokes its instinct to punish, or triggers other
mainsprings of human action [that] may cause a jury to base its decision on
something other than the established propositions in the case.” State v.
Henderson, 696 N.W.2d 5, 10–11 (Iowa 2005) (citation omitted).
Ingram claims the diary was unfairly prejudicial because it was “an overly
dramatic attempt to manipulate . . . M.H’s mother” and contained “extremely
prejudicial statements which resulted in an unfair verdict.” The probative value of
M.H.’s diary was not “substantially outweighed” by any unfair prejudice because
it showed her dislike of the abuse and desire for the abuse to end, allowing the
jury to conclude Ingram sexually abused her by force or against her will. See
Iowa Code § 709.4(a). Furthermore, a victim’s account of sexual abuse is not
unfairly prejudicial simply because the nature of the crime itself is disturbing.
See State v. Putman, No. 12-0022, 2013 WL 3456973, at *4 (Iowa Ct. App. July
10, 2013); State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993). Thus,
Ingram’s trial counsel did not render ineffective assistance in failing to object to
the diary as hearsay or as unfairly prejudicial.
Moreover, Ingram has failed to show he was prejudiced by any failure of
trial counsel to object to the admission of the diary on grounds of hearsay or
unfair prejudice because the evidence was merely cumulative. See State v.
Enderle, 745 N.W.2d 438, 441 (Iowa 2007); State v. Hildreth, 582 N.W.2d 167,
170 (Iowa 1998); see also Strickland, 466 U.S. at 694 (holding that, in order to
establish prejudice, a defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different”).
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Accordingly, we do not find Ingram’s trial counsel rendered ineffective
assistance in failing to object to the admission of M.H.’s diary as hearsay or as
unfairly prejudicial.
B. Vouching
Ingram claims the district court erred in allowing improper testimony by an
expert witness vouching for the credibility of the child victim. He also contends
his trial counsel provided ineffective assistance in failing to object to all of the
improper testimony and prejudice resulted. The record is adequate to address
Ingram’s claim on direct appeal. See Iowa Code § 814.7(2), (3).
Our supreme court has recently elaborated on what constitutes vouching
for the credibility of a witness, both directly and indirectly. See Dudley, 856
N.W.2d at 676–77; State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014); State v.
Jaquez, 856 N.W.2d 663, 665–66 (Iowa 2014). The court has explained:
Although we are committed to the liberal view on the admission of
psychological evidence, we continue to hold expert testimony is not
admissible merely to bolster credibility. Our system of justice vests
the jury with the function of evaluating a witness’s credibility. The
reason for not allowing this testimony is that a witness’s credibility
“is not a ‘fact in issue’ subject to expert opinion.” Such opinions not
only replace the jury’s function in determining credibility, but the jury
can employ this type of testimony as a direct comment on
defendant’s guilt or innocence. Moreover, when an expert
comments, directly or indirectly, on a witness’s credibility, the
expert is giving his or her scientific certainty stamp of approval on
the testimony even though an expert cannot accurately opine when
a witness is telling the truth. In our system of justice, it is the jury’s
function to determine the credibility of a witness.
Dudley, 856 N.W.2d at 676–77 (citations omitted); see also Brown, 856 N.W.2d
at 689; Jaquez, 856 N.W.2d at 665.
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Ingram challenges statements made by an expert witness during the
State’s direct examination. On our review, we address each statement Ingram
“claims as objectionable to determine whether the State crossed the line.”
Dudley, 856 N.W.2d at 678.
M.H. did not disclose the alleged abuse to her mother but instead sent a
text message disclosing the allegations to Ingram’s friend. At trial, M.H. testified
she did not tell her mother about the alleged abuse because she was scared and
Ingram had threatened to kill her family if she told anyone. M.H. stated she also
did not tell her mother because her mother was in a relationship with Ingram and
had recently given birth to his child. M.H. testified she did not know if anyone
would believe her. M.H. acknowledged she initially denied the allegations of
abuse when questioned by the police but later admitted them when the officer
asked about the text messages M.H. had sent to Ingram’s friend.
Meghan Jones, a mental-health therapist employed by Project Harmony,
testified generally about child sexual abuse. She explained young children might
delay disclosure because they are unable to fully understand the abuse. She
also testified that older children—children ages eleven, twelve, or young teens—
may not disclose abuse right away due to threats made by the abuser toward the
child or other family members. She testified older children may also delay
disclosure because the abuser threatens to tell others about the abuse and the
victim feels horrific shame or feels responsible for it. Jones stated that
sometimes the abuser is in a relationship with the child’s caregiver and the child
worries about causing stress to the caregiver, such as loss of child care, financial
support, or other support. She testified it was “a pretty common dynamic” that
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children would refrain from disclosing abuse because the child is worried his or
her whole life might change. Jones testified a child does not often disclose the
abuse to a nonoffending parent but instead often discloses the abuse to a
teacher or a peer. Jones also stated children may initially deny any abuse
occurred for various reasons, including fear or feeling overwhelmed by
disclosure. She testified children also worry the person they tell will not believe
them. Jones noted research, and not just experience, supported her testimony.
Ingram contends Jones’s statements indirectly commented on M.H.’s
credibility because the examples she gave were close to the facts in this case.
At one point, Ingram’s trial counsel objected to the expert’s testimony, stating
they were “getting beyond the Dudley language” and “making it specific to this
case.” The district court overruled the objection and permitted Jones to continue
testifying generally about child sexual abuse. “We allow an expert witness to
testify generally that victims of child abuse display certain demeanors.” Jaquez,
856 N.W.2d at 666 (citing Dudley, 856 N.W.2d at 676; State v. Gettier, 438
N.W.2d 1, 4 (Iowa 1989)). “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.
Our courts have generally “permitted an expert witness to testify regarding
the ‘typical symptoms exhibited by a [victim of sexual abuse],’” why a “child’s
recollection of the events may seem inconsistent,” and “why child[] victims may
delay reporting their sexual abuse” because it can “assist the jury in
understanding some of the seemingly unusual behavior child victims tend to
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display.” Dudley, 856 N.W.2d at 676–77 (citations omitted); see also Iowa R.
Evid. 5.702 (permitting expert opinion testimony “if . . . specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue”).
But courts should “reject expert testimony that either directly or indirectly renders
an opinion on the credibility or truthfulness of a witness.” State v. Myers, 382
N.W.2d 91, 97 (Iowa 1986). Indeed, expert witnesses are prohibited from
providing statistics suggesting children do not lie about sexual abuse. Id.; see
also State v. Tracy, 482 N.W.2d 675, 678 (Iowa 1992).
Here, Jones discussed generally the symptoms or behaviors common to
children who have experienced sexual abuse. She explained behaviors
exhibited by both young children and young teens. She did not provide an expert
opinion regarding “every significant purported and disputed fact” in this case “as
being consistent with the statistics and reports.” State v. Pitsenbarger, No. 14-
0060, 2015 WL 1815989, at *8 (Iowa Ct. App. Apr. 22, 2015); see also State v.
Tjernagel, No. 15-1519, 2017 WL 108291, at *7–8 (Iowa Ct. App. Jan. 11, 2017).
She did not testify specifically regarding M.H., her statements or her demeanor,
or any facts in this case. Although Jones’s testimony may arguably have “walked
the thin line between proper expert testimony and vouching for the credibility of
the victim[,] [it] did not cross it.” State v. Lusk, No. 15-1294, 2016 WL 4384672,
at *4 (Iowa Ct. App. Aug. 17, 2016) (Danilson, C.J., concurring specially). The
question of M.H.’s credibility was still left to the determination of the jury. Thus,
the district court did not err in admitting, and trial counsel did not render
ineffective assistance in failing to object to, the expert witness’s challenged
testimony. See State v. Shanahan, 712 N.W.2d at 138.
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Accordingly, we affirm Ingram’s convictions and sentences for sexual
abuse in the third degree, assault, and lascivious acts with a child.
AFFIRMED.