Justin David Simpson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
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No. 24-1961
Filed April 1, 2026
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Justin David Simpson,
Applicant–Appellant,
v.
State of Iowa,
Respondent–Appellee.
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Appeal from Iowa District Court for Linn County,
The Honorable Michael Harris, Judge.
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AFFIRMED
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Des C. Leehey, Cedar Rapids, attorney for appellant.

Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant
Attorney General, attorneys for appellee.
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Considered without oral argument
by Tabor, C.J., and Badding and Sandy, JJ.
Opinion by Badding, J.

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BADDING, Judge.

In the spring of 2011, Justin Simpson sexually abused his children’s
thirteen-year-old babysitter. A jury found him guilty of third-degree
sexual abuse the next year.1 Simpson applied for postconviction relief in
2017, raising claims of actual innocence, ineffective assistance of counsel,
and structural error. After a hearing on the application in 2024, the
district court denied those claims.

Simpson appeals, challenging the court’s failure to find that trial
counsel was ineffective for not hiring an expert witness and its rejection of
his structural-error claim. We review these constitutional claims de novo.
Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).

***

At Simpson’s criminal trial, his thirteen-year-old victim testified that
one night when she was babysitting, Simpson came home drunk, took her
pants and underwear off and “had sex with her by putting his penis in her
vagina.” State v. Simpson, Nos. 3-1204, 13-0087, 2014 WL 4243260, at *1
(Iowa Ct. App. Aug. 27, 2014). She said that it lasted for “about seven
minutes” and hurt. About a month later, the thirteen-year-old disclosed the
abuse to her parents. She was physically examined by Dr. Regina Butteris at
a child protection center. Dr. Butteris testified that the child’s vaginal exam
was normal, with no observable injury. That was not unusual, according to

1
The jury also found Simpson guilty of lascivious acts with a child. In his direct
appeal, we found that because Simpson committed only one physical act, he could not be
cumulatively punished for both offenses. State v. Simpson, Nos. 3-1204, 13-0087, 2014 WL
4243260, at *3 (Iowa Ct. App. Aug. 27, 2014). We remanded the case to the district court
for resentencing. Id. at *5. On remand, the court resentenced Simpson for third-degree
sexual abuse and dismissed the lascivious-acts count.

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Dr. Butteris. She testified that less than five percent of the approximately
3,500 sexual-abuse examinations she had conducted revealed physical injury.
Dr. Butteris also testified that although the child’s hymen was uninjured, the
absence of that injury did not rule out sexual assault. She debunked the myth
that “if you have sexual intercourse, the hymen breaks” and explained
“there are studies to support that you can have vaginal penetration without
an injury.”

Simpson faults his trial counsel for not deposing Dr. Butteris,
conducting only a brief cross-examination of her, and failing to hire an expert
witness to rebut her testimony. To establish that counsel provided
ineffective assistance, Simpson must prove “(1) his trial counsel failed to
perform an essential duty, and (2) this failure resulted in prejudice.” Lado
v. State, 804 N.W.2d 248, 251 (Iowa 2011) (citation omitted). We conclude
that his claim fails on both prongs.

At the postconviction-relief hearing, counsel explained that she did
not depose Dr. Butteris because the plea offer from the State was contingent
on not conducting any depositions. Going into trial, however, counsel knew
that Dr. Butteris was going to testify that the child “didn’t have an injury
and that her hymen was still intact.” And counsel wanted that testimony to
come in, explaining she favored a “common sense” approach over
competing expert testimony:
[M]ost people are gonna use common sense to say that supposedly in your
case you said that this young girl who’s supposed to be violently attacked
for seven minutes is not gonna have any injuries, not gonna have any blood
and the hymen’s still gonna be intact. Most people are not gonna believe
that; I don’t care what the doctor gets up there and says. I think I even
argued that in my closing.

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Simpson challenges this strategy, claiming that “[w]hen the other side
has an expert, common sense mandates that you hire one too, or at least have
a compelling reason against doing so.” But “[t]here is no bright-line duty
for an attorney to retain an expert.” Dawson v. State, No. 17-1679, 2019 WL
1940727, at *5 (Iowa Ct. App. May 1, 2019). Instead, “the question of
whether or not to call an expert witness is a matter of trial strategy.” Heaton
v. State, 420 N.W.2d 429, 432 (Iowa 1988). And “[m]iscalculated trial
strategies and mere mistakes in judgment normally do not rise to the level of
ineffective assistance of counsel.” Ledezma v. State, 626 N.W.2d 134, 143
(Iowa 2011).

Counsel’s decision to rely on the jurors’ common sense was a strategic
one. As the district court found, Dr. Butteris “testified as [counsel] believed
she would and, in [her] experience, this testimony provided an opportunity
to make a strong argument to the jury.” This was a reasonable trial strategy,
not a breach of duty. See State v. Majors, 940 N.W.2d 372, 392 (Iowa 2020)
(finding trial counsel’s “strategic decision to rely on his own cross-
examination of the State’s expert” was a reasonable one).

Simpson also failed to prove that he was prejudiced by counsel’s
decision to forgo an expert. To establish prejudice, a defendant “must
demonstrate ‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Ledezma, 626 N.W.2d at 143 (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984)). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (quoting Strickland,
466 U.S. at 694).

Simpson argues that an expert witness might “have at least been able
to qualify” Dr. Butteris’s testimony “that a hymen can remain intact after a

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forceful rape” and better equipped trial counsel “to challenge the statistic
conjured forth by Dr. Butteris at trial.” But Simpson has not proven “that
such an expert existed and would have offered a favorable opinion.” Davis
v. State, No. 18-2073, 2021 WL 592226, at *7 (Iowa Ct. App. Jan. 21, 2021).
Without that proof, he cannot establish prejudice. See Cox v. State, 554
N.W.2d 712, 715 (Iowa Ct. App. 1996) (rejecting claim that trial counsel
“was ineffective in failing to call an expert to rebut the statement of the
State’s expert” where the applicant “presented no independent evidence to
establish a contrary expert opinion would exist”); see also Stewart v. Nix, 31
F.3d 741, 744 (8th Cir. 1994) (“To prove prejudice from a trial attorney’s
failure to investigate potential witnesses, a petitioner must show that the
uncalled witnesses would have testified at trial and that their testimony
would have probably changed the outcome of the trial.”); Mott v. State,
No. 19-0834, 2021 WL 591680, at *3 (Iowa Ct. App. Jan. 21, 2021) (“Mott
cannot succeed on his claim that trial counsel breached an essential duty in
failing to call an expert witness to challenge [a] PTSD diagnosis when Mott
has failed to prove there is an expert who would have provided such an
opinion in court.”).

***

We also reject Simpson’s claim of “structural error.” In support of
this claim, he argues that trial counsel did not give his case “due attention or
consideration to the point of constructively denying [him] counsel during
numerous crucial stages of proceedings.” Simpson points to counsel’s
failure to give an opening statement; lack of knowledge at the postconviction
relief hearing that a “damning” text message “never appeared as an exhibit,
but rather only as testimony”; refusal to conduct depositions or consult an
expert; and decision to request a jury trial rather than a bench trial.

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In ineffective-assistance-of-counsel cases, the United States Supreme
Court
has held that prejudice may be presumed where: (1) counsel is completely
denied at a crucial stage of the proceeding; (2) where counsel fails to
subject the prosecution’s case to meaningful adversary testing; or
(3) where surrounding circumstances justify a presumption of
ineffectiveness, for example, where counsel has an actual conflict of
interest in jointly representing multiple defendants.

State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008) (citing United States v.
Cronic, 466 U.S. 648, 659 (1984)); see also Uranga v. State, No. 24-0196, 2025
WL 1324125, at *8 (Iowa Ct. App. May 7, 2025) (Langholz, J., dissenting)
(noting our supreme court uses “the term ‘structural error’ to describe when
prejudice is presumed on an ineffective-assistance-of-counsel claim because
of the actual or constructive denial of counsel”). None of these
circumstances are present here.

We agree with the district court that
Simpson was never denied counsel, either actively or constructively, at any
stage of the proceedings. . . . [Trial counsel] did place the prosecution’s
case against meaningful, adversarial testing. She cross-examined the
prosecution’s witnesses. She elicited testimony that she believed would be
beneficial in making a closing argument, such as the fact that the hymen of
the victim was intact. She argued during closing that there was a lack of
evidence, there were inconsistencies, and that the victim had reason to
fabricate her story. There were no circumstances present in this case that
would justify a presumption of ineffectiveness.

What Simpson has really advanced with this claim are “routine
ineffective-assistance challenges, where he claims alleged failures at ‘specific
points’ of the proceedings rather than a failure ‘to oppose the prosecution
throughout the [criminal] proceeding as a whole.’” Wright v. State,
No. 23-0101, 2024 WL 3050514, at *2 (Iowa Ct. App. Jun. 19, 2024)

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(alteration in original) (quoting Bell v. Cone, 535 U.S. 685, 697 (2002)).
“[T]hese specific complaints are ‘plainly’ governed by ‘Strickland’s
performance and prejudice components.’” Id. (quoting Bell, 535 U.S. at
697–98). But, other than his expert-witness claim, Simpson did not brief
those components for any of the failures identified above. We accordingly
reject his structural-error claim and affirm the denial of his application for
postconviction relief.

AFFIRMED.

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