State of Iowa v. Jeffry Brian Waite

IN THE COURT OF APPEALS OF IOWA

No. 19-1560
Filed June 16, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JEFFRY BRIAN WAITE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,

Judge.

Jeffry Waite appeals his convictions and sentences for one count of

lascivious conduct with a child and five counts of sexual abuse in the third degree.

AFFIRMED.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., Schumacher, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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VOGEL, Senior Judge.

Jeffry Waite appeals his convictions and sentences for one count of

lascivious conduct with a child and five counts of sexual abuse in the third degree.

He argues the State’s expert witness directly and the prosecutor indirectly vouched

for the complaining witness’s credibility, his convictions are not supported by

sufficient evidence, and the district court abused its discretion in imposing

consecutive terms of incarceration. We reject his claims and affirm.

I. Background Facts and Proceedings

E. was born in 1999. E. met Waite in or around 2005. E.’s mother soon

began dating Waite, and E.’s family moved into Waite’s home in Iowa City

approximately one year later. E’s mother and Waite married in 2008.

E. testified Waite committed several acts of sexual misconduct on her. One

day in or around 2011, E. was riding in Waite’s vehicle when Waite dared her to

“moon”1 another vehicle. E. did so, and Waite then dared her to “flash”2 him. E.

refused, and Waite told her not to tell her mother about the dare. Waite later asked

E. to flash him “several more times,” which she eventually did along with exposing

her buttocks and vagina to him at his urging. Exposing herself to him improved his

mood immediately and brought peace to the household. Waite eventually began

sneaking into E.’s room while she slept and running his hand up her leg and over

her body, though he always stopped when she pretended to wake.

1 E. described mooning as “when you pull your pants down and put your butt on
the window.”
2 E. described flashing as “when you lift your shirt up and show someone your

boobs.”
3

Waite directed E. to perform acts of “service,” that “you do good things to

make up for bad things that you’ve done.” One day in the summer of 2015, Waite

penetrated E.’s vagina with his finger as her act of “service” for being late to a

driving test. After the digital penetration, her acts of “service” became explicitly

sexual, including Waite using a sex toy in and around E.’s vagina, E. masturbating

Waite, and E. performing oral sex on Waite. On one occasion, Waite attempted

anal intercourse on E. and then performed vaginal intercourse on her.

E. moved out of Waite’s home in August 2017 when she left for college. E.

began talking to a counselor and then a therapist later that year. E.’s mother told

Waite she wanted a divorce in December 2017, and they divorced in February

2018. E. first told her mother in June of 2018 that Waite had been abusing her.

Around the same time, E. first contacted law enforcement regarding Waite’s acts.

Waite was arrested and charged, and he proceeded to a jury trial on June

25 to 28, 2019. The jury found Waite guilty of one count of lascivious conduct with

a minor3 and five counts of sexual abuse in the third degree.4 The district court

3 Under the jury instructions, the State must prove the following elements for count
one, lascivious conduct with a minor:
1. On or about June 2012 through 2015, the Defendant
persuaded or coerced [E.] with or without her consent, to disrobe or
partially disrobe.
2. The Defendant engaged in such conduct with the specific
intent to arouse or satisfy the sexual desires of the Defendant or [E.].
3. At the time of the conduct, the Defendant was then 18 years
of age or older.
4. At the time of the conduct, the Defendant was in a position
of authority over [E.].
5. At the time of the conduct, [E.] was under the age of 18 and
never married.
4 Under the jury instructions, the State must prove Waite performed the following

actions by force or against E.’s will for counts two to six, sexual abuse in the third
degree:
4

sentenced Waite to 365 days in jail on count one and terms of incarceration not to

exceed ten years in prison on counts two through six. The court ran counts one,

two, and three concurrently with each other and counts four and five concurrently

with each other, with counts one/two/three, four/five, and six run consecutively to

each other, for a total term of incarceration not to exceed thirty years. Waite

appeals.

II. Standard of Review

We review decisions on the admissibility of expert witness testimony for

abuse of discretion. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). We also

review decisions “on claims of prosecutorial misconduct for abuse of discretion,

which occurs when ‘a court acts on grounds clearly untenable or to an extent

clearly unreasonable.’” State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018)

(quoting State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011)). “We review

sufficiency of the evidence for correction of errors at law.” State v. Donahue, 957

N.W.2d 1, 7 (Iowa 2021) (quoting State v. Kelso-Christy, 911 N.W.2d 663, 666

[Count Two.] On or about June 2015 through August 2015,
the Defendant performed a sex act, inserting his finger into the
vagina of [E.].
[Count Three.] On or about June through August 2015, the
Defendant performed a sex act, inserting a sex toy into the vagina of
[E.].
[Count Four.] On or about June through August 2015, the
Defendant performed a sex act, causing his genitals to make contact
with the anus of [E.].
[Count Five.] On or about June through August 2015, the
Defendant performed a sex act, penetrating the vagina of [E.] with
his penis.
[Count Six.] On or about June of 2016 through June [of] 2017,
the Defendant performed a sex act, causing the mouth of [E.] to
make contact with his genitals.
5

(Iowa 2018)). When a sentence is authorized by statute, we review the sentence

for an abuse of discretion. State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016).

III. Vouching

A. Expert witness testimony

Waite argues the State impermissibly allowed for the vouching of E.’s

credibility through the expert witness testimony of therapist Kate Haberman.

“Expert testimony in child sexual abuse cases can be very beneficial to assist the

jury in understanding some of the seemingly unusual behavior child victims tend

to display.” Dudley, 856 N.W.2d at 675. Expert witnesses may “express opinions

on matters that explain relevant mental and psychological symptoms present in

sexually abused children.” Id. at 676 (quoting State v. Myers, 382 N.W.2d 91, 97

(Iowa 1986)). Permissible topics for expert witnesses include testimony about

“typical symptoms exhibited by a person after being traumatized” and “why children

victims may delay reporting their sexual abuse.” Id. (citations omitted). However,

“expert testimony is not admissible merely to bolster credibility.” Id. In other words,

“an expert witness cannot give testimony that directly or indirectly comments on

the child’s credibility.” Id. at 677.

Early in Haberman’s testimony, she established she knows nothing about

E. as she has never examined, interviewed, or met E. Our review of her testimony

shows she testified generally about child sex abuse and trauma without

commenting on E.’s credibility. Waite in his brief acknowledges Haberman

“testified in generalities about sex abuse where children were the victims.” We find

Haberman’s testimony stayed well within permissible boundaries and therefore

there was no abuse of discretion in admitting Haberman’s expert testimony.
6

B. Prosecutorial misconduct

Waite also argues the State committed prosecutorial conduct during closing

arguments by indirectly vouching for E.’s credibility through references to

Haberman’s testimony.5 “A prosecutor ‘is entitled to some latitude during closing

argument in analyzing the evidence admitted in the trial.’” State v. Graves, 668

N.W.2d 860, 874 (Iowa 2003) (quoting State v. Phillips, 226 N.W.2d 16, 19 (Iowa

1975)). “Moreover, a prosecutor may argue the reasonable inferences and

conclusions to be drawn from the evidence.” Id. “A prosecutor may not, however,

express his or her personal beliefs.” Id. “The key point is that counsel is precluded

from using argument to vouch personally as to a defendant's guilt or a witness's

credibility.” Id. (quoting State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983)).

Prosecutorial misconduct requires a new trial when the misconduct causes

“prejudice to such an extent that the defendant was denied a fair trial.” Id. The

factors to consider in determining prejudice are “(1) the severity and pervasiveness

5 The State argues Waite did not preserve error on his claim of prosecutorial
misconduct because he did not object to the prosecutor’s comments until after the
prosecutor finished speaking. See Krogmann, 804 N.W.2d at 524 (stating error
preservation rules “require parties to alert the district court ‘to an issue at the time
when corrective action can be taken’” (quoting Top of Iowa Coop. v. Sime Farms,
Inc., 608 N.W.2d 454, 470 (Iowa 2000))). However, our supreme court has
expressed concerns about prejudice resulting from a party making repeated
objections during closing arguments and found, “‘[w]here the closing arguments
are reported,’ a party’s ‘objection to the remarks of counsel during final jury
argument urged at the close of the argument in motion for mistrial made before
submission to the jury is timely.’” Kinseth v. Weil-McLain, 913 N.W.2d 55, 67 (Iowa
2018) (alteration in original) (quoting Andrews v. Struble, 178 N.W.2d 391, 401–
02 (Iowa 1970)). Therefore, Waite’s objection at the conclusion of the prosecutor’s
comments was sufficient to preserve error for our review. See id. To the extent
the State asks us to use a different error-preservation standard for claims of
prosecutorial misconduct in criminal proceedings, we have no authority to do so.
State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty
to overturn Iowa Supreme Court precedent.”).
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of the misconduct; (2) the significance of the misconduct to the central issues in

the case; (3) the strength of the State’s evidence; (4) the use of cautionary

instructions or other curative measures; and (5) the extent to which the defense

invited the misconduct.” Id. (citations omitted).

Waite claims the prosecutor committed misconduct with these comments

on Haberman’s testimony during closing arguments:

What else is that consistent with? When you think back on
the testimony of all the witnesses that you heard from, witnesses that
have no motive, no other reason to be here yesterday except to tell
you what they know and what their experience is, think about the
testimony of Kate Haberman. How did she explain that behavior,
and is it consistent with the testimony that [E.] gave?
....
Also consider, in determining whether or not these acts were
done against the will of [E.], other testimony that you believe or that
you find believable. And again, I’m referring you back to the
testimony of Miss Haberman when she talked about what the brain
does during trauma. There’s a, you know, portion of our brain that is
active during trauma. That logic and reason shuts down because
our brain just needs to survive. And in order to survive, the brain
does what? Fight or flight—everyone’s very familiar with that—
freezing or fawning.
What evidence did you hear that is consistent with that? [E.]
told you . . . .
....
Again, think back to the testimony, if you find it credible and
believable. What is consistent with what Miss Haberman testified to
here? All of those things that he did to overcome her will. She says
that sex abuse is different in the sense that a perpetrator makes the
person feel like they are an active participant in this, that they want
it, that they—this is part of it. This isn’t something being done to
them. This is something they’re engaging in. All of that is a
circumstance that shows that these were all done against [E.’s] will.
....
The text messages that [E.] sent the defendant. [E.] told you,
“I kept messaging him. He was the only father figure, really, in my
life. It felt normal. It felt weird not to talk to him.” And you heard
from Kate Haberman that’s really normal for children who’ve been
sexually abused. That’s part of the sexual abuse, that the perpetrator
is someone that they love or loves them or at least thinks they love
them.
8

And that’s why she continued to message him, and she did,
and she didn’t try to hide that from you. She told you directly. And
Kate Haberman told you that kids would rather feel they’re—their
need to belong is more important a lot of time than their need to be
safe.

The prosecutor’s comments on Haberman’s testimony and whether it was

consistent with E.’s testimony are fair arguments drawn from the evidence. See

State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct. App. 1994) (“The credibility of

witnesses is a proper subject for discussion during closing argument.”). The

prosecutor did not express her personal beliefs in her closing arguments.

Furthermore, even if the prosecutor committed misconduct, the court minimized

prejudice by cautioning the jury prior to closing arguments that counsels’

comments “are not evidence, nor should they be construed by you as evidence or

instructions on the law.” See State v. Musser, 721 N.W.2d 734, 756–57 (Iowa

2006) (finding the defendant was not prejudiced when the jury was instructed “to

decide the defendant’s guilt or innocence from the evidence and the law in these

instructions, and that evidence did not include statements, arguments, and

comments by the lawyers”). Therefore, we find no abuse of discretion in rejecting

Waite’s claims of prosecutorial misconduct.

IV. Sufficiency of the Evidence

Waite argues the evidence is not sufficient to support his convictions. E.

testified in detail that Waite subjected her to years of trauma and sexual abuse.

Her testimony alone is sufficient evidence to support all six counts. See Donahue,

957 N.W.2d at 10–11 (“A sexual abuse victim’s testimony alone may be sufficient

evidence for conviction.”); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993)

(“The jury is free to believe or disbelieve any testimony as it chooses and to give
9

weight to the evidence as in its judgment such evidence should receive.”). Waite

apparently concedes E.’s testimony, if believed, is sufficient evidence to support

his convictions as he does not question whether her testimony fails to support any

element of his six charges. Instead, Waite points to several claimed

inconsistencies in E.’s testimony—including E.’s incorrect statement that Waite

was uncircumcised—and asserts E.’s testimony is so unreliable it cannot constitute

sufficient evidence. See Donahue, 957 N.W.2d at 7 (stating sufficient evidence

“would convince a rational fact finder the defendant is guilty beyond a reasonable

doubt” (quoting Kelso-Christy, 911 N.W.2d at 666)). We do not view these

inconsistencies as so significant they render E.’s testimony unreliable. See id. at

11 (“Inconsistencies and lack of detail are common in sexual abuse cases and do

not compel a jury to conclude that the victim is not credible or that there is

insufficient evidence to support a guilty verdict.”). Therefore, we find sufficient

evidence to support Waite’s convictions on all six counts.

V. Sentencing

Waite’s final argument is the district court did not sufficiently explain its

reasoning for imposing consecutive terms of incarceration. “The Iowa Rules of

Criminal Procedure state a ‘court shall state on the record its reason for selecting

the particular sentence’ it imposes on the defendant.” State v. Thompson, 856

N.W.2d 915, 918–19 (Iowa 2014) (quoting Iowa R. Crim. P. 2.23(3)(d)). “This

requirement ensures defendants are well aware of the consequences of their

criminal actions.” Id. at 919. “Most importantly, the sentence statement affords

our appellate courts the opportunity to review the discretion of the sentencing
10

court.” Id. “The district court can satisfy this requirement by orally stating the

reasons on the record or placing the reasons in the written sentencing order.” Id.

At the sentencing hearing, the district court provided the following reasons

for imposing consecutive sentences:

First of all, the nature and duration of this conduct warrants capturing
the conduct in these consecutive sentences. The defendant
undertook a grooming period with the victim and then the behavior
escalated over a period of at least two years. Not to minimize the
earlier sexual abuse, but certainly the conduct became more severe
and more frequent, warranting the additional punishment.
As I said, I was the trial judge in this case. I listened to all of
the testimony and I believe everything [E.] said at trial.
So I find that this sentence imposed is appropriate. Both the
severity, the duration, and the harm that it’s caused to [E.].

In the written sentencing order, the court again gave its reasoning: “The reasons

for the consecutive sentences are the nature and duration of this conduct,

Defendant undertook a grooming period with the victim with the behavior

escalating over a period of at least two years, and the harm to the victim.” Waite

faults the court for not explaining why it grouped certain counts together to run

concurrently, essentially arguing the court should have better explained why it

imposed a sentence more severe than running all six terms of incarceration

concurrently. The court explained why it ran some terms of incarceration

consecutively, and we do not believe the court was required to provide Waite’s

requested level of detail in its reasoning. See State v. Thacker, 862 N.W.2d 402,

408 (Iowa 2015) (“[A] ‘terse and succinct’ statement may be sufficient, ‘so long as

the brevity of the court’s statement does not prevent review of the exercise of the

trial court’s sentencing discretion.’” (quoting State v. Johnson, 445 N.W.2d 337,

343 (Iowa 1989))). We find the court’s stated reasons are sufficient for our review.
11

An additional component of Waite’s sentencing argument is his assertion

the district court relied on unproven conduct in imposing consecutive sentences.

“[W]e will set aside a sentence and remand a case to the district court for

resentencing if the sentencing court relied upon charges of an unprosecuted

offense that was neither admitted to by the defendant nor otherwise proved.” State

v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998) (quoting State v. Black, 324 N.W.2d

313, 315 (Iowa 1982)). “[I]n order to overcome the presumption the district court

properly exercised its discretion, there must be an affirmative showing the court

relied on . . . improper evidence.” Id. (second alteration in original) (quoting State

v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App. 1996)). Waite points to the court’s

statement that it “believe[s] everything [E.] said at trial” to support his claim.

However, merely showing the court believed the victim’s testimony falls far short

of showing the court relied on improper evidence in sentencing. Therefore, we

reject Waite’s claim the court relied on improper evidence, and we find the court

did not abuse its discretion in sentencing him to consecutive terms of incarceration.

VI. Conclusion

We find the district court did not abuse its discretion in rejecting Waite’s

claims of vouching during the testimony of the State’s expert witness and during

the prosecutor’s closing arguments. We also find sufficient evidence to support

Waite’s convictions on all six counts, and we find no abuse of discretion in

sentencing him to consecutive terms of incarceration. Therefore, we affirm his

convictions and sentences.

AFFIRMED.