State of Iowa v. Shaun Simonich

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).
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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.
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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.

i. Standard of Review.

Ineffective-assistance-of-counsel claims are reviewed de novo. Everett v.

State, 789 N.W.2d 151, 155 (Iowa 2010).

ii. Merits.

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:
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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,
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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.

AFFIRMED.