State of Iowa v. Brian James Maxwell

IN THE COURT OF APPEALS OF IOWA

No. 15-1392
Filed November 9, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BRIAN JAMES MAXWELL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Madison County, Gary G. Kimes,

Judge.

A defendant appeals his conviction for lascivious conduct with a minor,

alleging ineffective assistance of counsel. AFFIRMED.

Brandon Brown of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.

Heard by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.

Brian Maxwell appeals following a bench trial where he was convicted of

lascivious conduct with a minor, in violation of Iowa Code section 709.14 (2013).

He claims he received ineffective assistance of trial counsel when counsel failed

to object to (1) improper leading questions posed by the prosecutor, (2) evidence

of prior bad acts, (3) testimony from a rebuttal witness he claims was irrelevant,

(4) testimony that improperly vouched for the credibility of the complaining

witness, and (5) prosecutorial misconduct. Individually and cumulatively,

Maxwell claims he was prejudiced by counsel’s actions. He also claims the

district court abused its discretion when it imposed a firearms ban as part of the

appeal bond.

For the reasons stated herein, we affirm Maxwell’s conviction, preserving

his claim challenging counsel’s effectiveness for failing to object to what he

considers to be improper vouching testimony. We also conclude the district court

did not abuse its discretion in imposing a firearms ban as part of the appeal

bond.

I. Background Facts and Proceedings.

Maxwell was hired March 1, 2014, to serve as a youth coordinator for two

churches in the Winterset area. During his introduction to the youth group,

Maxwell met the complaining witness, then age sixteen, and he and his wife

decided to mentor her after she approached them with some of her personal

struggles. They included her on family outings and purchased clothes for her.

They paid to have her hair cut and highlighted and gave her a cell phone so she

could stay in contact with them and with her father.
3

The complaining witness testified Maxwell assaulted her on March 17 in

the downstairs youth room at one of the churches by undoing her bra and having

her lift up her shirt. She asserted Maxwell then touched, kissed, and licked her

breasts, and rubbed her between her legs over her clothing, while Maxwell’s two

sons, aged eight and nine, were in another corner of the room, playing video

games with their backs to Maxwell and the witness.

A week after the incident, the complaining witness broke down at home

and disclosed the events of March 17 to her father and other members of her

family. The police were called, and the complaining witness underwent a

forensic interview with Mikki Hamdorf at the Blank Children’s Hospital Regional

Child Protection Center. After the interview and the investigation were

completed, charges were filed against Maxwell that proceeded to trial to the court

on April 21, 2015. After hearing testimony from the victim and her family, the

investigating officer, the pastor and other staff and members of the church,

another member of the youth group, and Maxwell’s wife and his two sons, the

court issued its verdict finding Maxwell guilty as charged. The court stated in its

ruling that it found “the State’s witnesses to be credible and the Defendant’s

witnesses to not be credible.” The court denied Maxwell’s posttrial motion to

expand the court’s findings of fact and conclusions of law and his motion in arrest

of judgment. The court sentenced Maxwell to one-year in jail with all but 120

days suspended, placed Maxwell on probation for two years, and imposed a ten-

year special sentence under Iowa Code section 903B.2. In addition, the court

imposed a $2000 appeal bond and ordered him “not to possess firearms while

this matter is on appeal.”
4

Maxwell appeals.

II. Scope and Standard of Review.

Because claims of ineffective assistance of counsel are based in the Sixth

Amendment, our review is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). Such claims are normally preserved for postconviction-relief proceedings,

where a record of counsel’s conduct can be more fully developed, but we will

resolve such claims on direct appeal where the record is adequate. Id. Upon our

review of the record and the arguments made by the parties, we conclude some

of Maxwell’s claims can be resolved on direct appeal, while others must be

preserved for further proceedings on postconviction relief.

III. Ineffective Assistance of Counsel.

To prove his claims of ineffective assistance of counsel, Maxwell must

prove by a preponderance of the evidence that counsel failed to perform an

essential duty and he suffered prejudice as a result. See State v. Morgan, 877

N.W.2d 133, 136 (Iowa Ct. App. 2016). The claims fail if either prong is not

proved. Id.

A. Leading Questions. Maxwell claims counsel was ineffective for

failing to object to the State’s “rampant and prejudicial” use of leading questions.

He asserts the prosecutor effectively put the answers he wanted in the mouths of

the witnesses, which resulted in evidence being admitted that witnesses would

not have otherwise recalled. He cites pages of trial transcript containing the

testimony of the investigating officer, the complaining witness’s father and her

cousin, the complaining witness, and Hamdorf.
5

“Where the question assumes any fact which is in controversy, so the

answer may really or apparently admit that fact, it is leading.” Giltner v. Stark,

219 N.W.2d 700, 713 (Iowa 1974). While leading questions should not be used

on direct examination of a witness, there is an exception where such questions

are “necessary to develop that witness’s testimony.” Iowa R. Evid. 5.611(c).

“[L]eading questions may be proper and necessary where the witness is of

tender age, as well as where the witness is testifying as to some form of sexual

abuse.” State v. Mueller, 344 N.W.2d 262, 266–67 (Iowa Ct. App. 1983) (internal

citations omitted). With respect to the many examples of leading questions

posed to the complaining witness, we conclude counsel did not breach an

essential duty in failing to object because the objection would have likely been

overruled in light of the victim’s age and the subject matter of her testimony. See

State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (“We will not find counsel

incompetent for failing to pursue a meritless issue.”).

The complained of questions to the investigating officer occurred on the

State’s redirect examination of the witness after defense counsel’s cross-

examination. The State used the form of the question to move the witness to the

various topics the State wished to address in response to the cross-examination.

“A question is objectionable as leading, when it suggests the answer to it, and

not when it merely directs the attention of the witness to the immediate subject

with reference to which he is interrogated.” Pelamourges v. Clark, 9 Iowa 1, 18

(1859). We find no breach of an essential duty by defense counsel for not

objecting to these leading questions.
6

The questions Maxwell complains of on appeal that were posed to the

complaining witness’s father and cousin were in response to defense counsel’s

hearsay objections when the witnesses attempted to testify to what the

complaining witness had told them on the night she disclosed the abuse. In

order to prevent the witnesses from venturing into hearsay statements, the State

posed closed, leading questions. When defense counsel did lodge objections to

these leading questions, the objections were overruled. “[C]ounsel need not

make every possible evidentiary objection to satisfy the standard of normal

competency.” State v. Pierson, 554 N.W.2d 555, 563 (Iowa Ct. App. 1996). We

again conclude counsel did not breach an essential duty by not objecting to these

questions. Any such objections would have likely have been overruled or

resulted in the State rephrasing the question posed. See State v. Frazer, 267

N.W.2d 34, 37 (Iowa 1978) (finding the defendant suffered no prejudice when the

prosecutor rephrased leading questions after an objection by defense counsel).

Finally, the questions posed to Hamdorf that Maxwell contends are

leading were, in most cases, rephrasing of information Hamdorf had already

discussed in a prior answer. Hamdorf described one of the reasons for why a

victim may delay disclosure of abuse was that the victim viewed the relationship

with the perpetrator as a positive one and disclosing the abuse meant the

positive aspect of the relationship goes away. The prosecutor then asked, “They

might believe that the attention or gifts that they were receiving would go away if

they told,” to which Hamdorf responded, “Correct.” Again, assuming the

questions posed to Hamdorf were leading, we conclude counsel did not breach

an essential duty in failing to object as such objections would have likely been
7

overruled or the prosecutor would have had the opportunity to rephrase the

question.

B. Prior Bad Acts. Maxwell continues his claims of ineffective

assistance of counsel by asserting counsel should have objected to evidence of

interactions between the complaining witness and himself that he believed

amounted to prior bad acts. There was evidence introduced that in the days

leading up to the March 17 incident Maxwell applied and removed Band-Aids to

the complaining witness’s breasts in order to prevent her nipples from showing

through the top Maxwell had purchased for her, Maxwell gave the complaining

witness a massage when the two were alone in a hotel room the family had

rented to go swimming, Maxwell kissed the complaining witness in his vehicle as

Maxwell was giving her a ride home from a youth event, and during that ride

home, Maxwell discussed inappropriate topics, such as consuming alcohol,

getting a tattoo, and piercing his penis, with the complaining witness and another

young female from the youth group. Maxwell acknowledges that in a prosecution

for sexual abuse, evidence of another sexual abuse is admissible under Iowa

Code section 701.11;1 however, he asserts none of these acts amount to sexual

abuse as defined in chapter 709. See Iowa Code § 701.11(3) (defining “sexual

1
This code section states, in part:
In a criminal prosecution in which a defendant has been charged with
sexual abuse, evidence of the defendant’s commission of another sexual
abuse is admissible and may be considered for its bearing on any matter
for which the evidence is relevant. This evidence, though relevant, may
be excluded if the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. This evidence is not
admissible unless the state presents clear proof of the commission of the
prior act of sexual abuse.
Iowa Code § 701.11(1).
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abuse” in this section to include “any commission of or conviction for a crime

defined in chapter 709”). Because these actions did not amount to sexual abuse,

Maxwell claims counsel should have objected and the evidence should have

been excluded as its only purpose was to show he was a bad person.

The State responds that such evidence was permissible under section

701.11. Even if the evidence fell short of actual sexual abuse as defined in

chapter 709, the State maintains the evidence was admissible as relevant to

Maxwell’s intent and relevant to show “the nature of the relationship between the

alleged perpetrator and the victim.” See State v. Reyes, 744 N.W.2d 95, 102

(Iowa 2008). The State maintains the evidence was relevant to show Maxwell, in

the days leading up to March 17, was deliberately eroding boundaries and

escalating the intensity of this physical contact with the complaining witness for

sexual gratification as required for a conviction for lascivious conduct with a

minor under section 709.14.

We assume, without deciding, that this testimony did not amount to acts

that would be considered a crime defined in chapter 709. See Iowa Code

§ 701.11(3). Without that prerequisite, section 701.11(1) cannot be used as a

justification for the admission of the prior acts evidence. However, under Iowa

Rule of Evidence 5.404(b), other crimes, wrongs, or acts are admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Maxwell’s intent, in having the complaining witness lift up

her shirt and bra, was at issue. The State had to prove this was done “for the

purpose of arousing or satisfying the sexual desires of either of them.” See Iowa

Code § 709.14. Evidence Maxwell had touched the complaining witness’s
9

breasts, massaged her chest, discussed inappropriate sexual topics, and kissed

her in the four days leading up to the alleged incident speaks to Maxwell’s intent

to arouse his and/or the complaining witness’s sexual desires. Any objection to

this evidence as irrelevant at trial would have been overruled, and therefore,

counsel was not ineffective in failing to make that objection. See State v.

Swinney, 345 P.3d 509, 514 (Or. Ct. App. 2015) (noting the expert testimony on

grooming concerning how offenders often choose vulnerable child was relevant

to understand the defendant’s plan and preparation).

C. Rebuttal Testimony. Maxwell also claims his counsel provided

ineffective assistance when counsel failed to object to the State’s rebuttal witness

based on relevancy. The witness in question was a sale’s associate at a local

clothing store where Maxwell, accompanied by the complaining witness,

purchased items of clothing for the complaining witness to wear. The worker

testified she knew the complaining witness’s father and also knew Maxwell and

his family. She stated she thought it was “a little strange” that Maxwell arrived

with the complaining witness close to closing time to choose clothes for the

complaining witness when she had seen Maxwell’s wife shopping in the store

earlier that day. Based on her concerns, she asked the complaining witness if

she was okay, and the complaining witness replied she was fine.

Defense counsel did object to the witness’s testimony, asserting the

proposed questioning was improper rebuttal evidence. The court denied this

objection, permitting the rebuttal witness to testify. But Maxwell claims counsel

was deficient in failing to further object that the testimony the rebuttal witness

offered was irrelevant and more prejudicial than probative. Because all
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witnesses with knowledge admitted Maxwell shopped at the store with the

complaining witness at the time and date in question, Maxwell asserts this

testimony was not relevant and was only offered to make the shopping trip

appear unfairly and prejudicially illicit.

The State asserts the testimony offered, specifically Maxwell’s wife’s

presence in the store earlier the same day, was relevant to show there had been

no need for Maxwell to have brought the complaining witness to the store that

evening to purchase a spaghetti-strap top. In addition, the State asserts that

even if counsel should have objected, any testimony that came into evidence,

specifically on cross-examination, ended up being helpful to the defense as the

rebuttal witness admitted that she did not see anything inappropriate between

Maxwell and the complaining witness, and when they left the store, the

complaining witness seemed happy.

“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.’” State v. Putman, 848

N.W.2d 1, 9 (Iowa 2014) (quoting Iowa R. Evid. 5.401). Evidence that is relevant

is admissible so long as the danger of unfair prejudice does not substantially

outweigh the evidence’s probative value. Iowa R. Evid. 5.403. We conclude this

evidence did have some minor relevance, particularly with respect to the need for

Maxwell, as opposed to his wife, to shop for clothing with the complaining

witness that night. In addition, we find no prejudice to Maxwell as a result of the

admission of the evidence, particularly in light of the effective cross-examination
11

by defense counsel. Therefore, we find Maxwell did not prove counsel was

ineffective in not objecting to this testimony on relevancy grounds.

D. Vouching Testimony: Grooming. Next, we address Maxwell’s claim

that counsel should have objected to testimony from the investigating officer and

from the forensic interviewer, Hamdorf, regarding the process known as

grooming. Hamdorf described grooming as “the process of essentially

sexualizing the relationship between the offender and the child” with the goal of

gaining access to the child and minimizing the disclosure of the abuse. Maxwell

maintains the testimony about grooming was improper because demonstrating

that grooming occurred in this case leads to the conclusion that the complaining

witness was credible in her claim the relationship was sexualized. Maxwell also

complains that many of the hypothetical questions posed to Hamdorf about

grooming mirrored the complaining witness’s testimony rather than being just a

general list of behavioral symptoms. Maxwell claims the expert improperly used

statistics about grooming to bolster the complaining witness’s credibility. Finally,

he claims Hamdorf lapsed into specifics about the case from hypotheticals posed

by the prosecutor by replacing the indefinite article “an” before “alleged victim”

with the definite article “the,” creating the term, “the alleged victim.”

In a trio of cases, our supreme court discussed what constitutes improper

expert vouching for child victims in sexual abuse cases tried to a jury. See State

v. Dudley, 856 N.W.2d 668 (Iowa 2014); State v. Brown, 856 N.W.2d 685 (Iowa

2014); State v. Jaquez, 856 N.W.2d 663 (Iowa 2014). The court in each of those

cases stated:
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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. An abuse of
discretion occurs when a court allows such testimony.

Dudley, 856 N.W.2d at 676–77 (citations omitted); Brown, 856 N.W.2d at 689

(quoting Dudley, 856 N.W.2d at 676–77); Jaquez, 856 N.W.2d at 665 (quoting

Dudley, 856 N.W.2d at 676–77). While expert testimony that comments, either

directly or indirectly, on a witness’s credibility is improper, “there is a very thin line

between testimony that assists the jury in reaching its verdict and testimony that

conveys to the jury that the child’s out-of-court statements and testimony are

credible.” Dudley, 856 N.W.2d at 677.

Maxwell claims the investigating officer should not have been able to offer

the opinion, based on his experience and training, that grooming occurred in this

case. The officer testified the facts that led him to this conclusion included

Maxwell’s actions in gaining the complaining witness’s trust and the trust of her

father, giving the complaining witness a ride home, asking her to be part of his

family, spending time with her, giving her a cell phone, buying her clothes, getting

her hair and nails done, having her ears pierced, and taking her to movies and

restaurants.
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As for Hamdorf, Maxwell claims she should not have been able to offer

testimony that generally described grooming behavior and it was improper for the

prosecutor to go on to ask questions that aligned the complaining witness’s

version of Maxwell’s conduct with typical grooming behavior. Hamdorf agreed

gifts are often given to female victims as part of grooming and include such

things as clothing, access to a cell phone, and going out to eat or to a movie.

Hamdorf went on to explain that the goal of grooming is to sexualize the

relationship to the point a boundary line has been crossed. Therefore, a person

may not understand the behavior to be grooming, as opposed to innocent

conduct meant to simply be nice, until an inappropriate act occurs. In addition,

Hamdorf testified grooming can minimize disclosure of the inappropriate behavior

because the victim would be fearful of what would occur when disclosure

occurs—the feeling of not being believed or being blamed for the conduct, the

feeling of shame or embarrassment over what happened, the fear of the loss of

the attention or gifts received if the conduct is revealed, the worry about what will

happen to the offender, or the fear the offender may follow through on threats or

bribes that were made to keep the victim from reporting.

Unlike the officer’s testimony, Hamdorf kept her description of grooming to

more general actions, though she did agree some specific actions amounted to

grooming and those actions mirror actions taken by Maxwell. Testimony has

been permitted to describe general or typical symptoms associated with being

traumatized. See State v. Gettier, 438 N.W.2d 1, 6 (Iowa 1989). And testimony

has been allowed that explains why child victims may delay in reporting their

sexual abuse. See State v. Payton, 481 N.W.2d 325, 327 (Iowa 1992). It was
14

not until defense counsel’s cross-examination that Hamdorf testified she believed

grooming occurred in this case based only on the information she had from the

complaining witness in the forensic interview. Hamdorf made clear during that

line of questioning that if what the complaining witness told Hamdorf was true,

then Hamdorf’s opinion was that grooming occurred. Maxwell does not assert on

appeal that defense counsel was ineffective in pursuing this line of questioning

with Hamdorf.

Maxwell also complains that Hamdorf testified “the majority of time there is

some type of grooming that occurs before an abusive act” and “more often than

not if grooming has occurred, disclosure would be delayed.” Hamdorf testified

research in one study showed “roughly seventy-five percent of the adults didn’t

disclose until they were into adulthood about the abuse that occurred when they

were a child.” Maxwell claims this testimony is improper as it attempted to

provide statistics to bolster the complaining witness’s testimony. See State v.

Tracy, 482 N.W.2d 675, 678 (Iowa 1992) (finding testimony improper that no

more than two or three children per thousand who come forth with serious

allegation are later found to be dishonest); State v. Myers, 382 N.W.2d 91, 97–98

(Iowa 1986) (finding expert testimony relaying statistics regarding the truthfulness

of child sexual abuse victims was improper).

Finally, Maxwell complains the prosecutor often replaced the indefinite

article “a” with the definite article “the” when asking Hamdorf hypothetical

questions. This linguistics change is not trivial, according to Maxwell, because

he believes it reveals the fact Hamdorf knew the hypothetical was about the
15

complaining witness and it resulted in Hamdorf vouching for the complaining

witness’s credibility.

Maxwell claims all of the activity that Hamdorf and the investigator officer

testified was grooming behavior was completely innocent behavior. It was

therefore improper to include their testimony that this behavior was similar to the

behavior sexual abusers engage in, which then fostered the inferential leap that

Maxwell is a child sex abuser. In support of his claim, Maxwell cites a case from

Oregon, State v. Hansen, 743 P.2d 157, 160–61 (Or. 1987), superseded by

statute as recognized in Powers v. Cheeley, 771 P.2d 622, 628 n.13 (Or. 1989),

where the Oregon Supreme Court ruled the detective’s testimony about was

improperly admitted for the purpose of trying to explain the complaining witness’s

delayed disclosure of the abuse because the grooming testimony “did nothing to

explain the student’s initial denial of the sexual relations.” The court also

concluded the relevance of the grooming testimony was “practically nil” as the

detective generally described a profile of a nonviolent child abuser. Hansen, 743

P.2d at 161.

We find no specific Iowa case law dealing with the admissibility of expert

testimony on grooming behavior but do note the Hansen decision was not the

definitive Oregon opinion on the admissibility of expert testimony on grooming

behavior. In State v. Stafford, 972 P.2d 47, 52 (Or. 1998), the Oregon Supreme

Court found expert testimony about grooming behavior was relevant and

admissible to the issue of the defendant’s intent in placing his hands on the

victim’s thighs, and in Swinney, 345 P.3d at 513–14, the Oregon Court of

Appeals found grooming testimony relevant to help the jury understand how
16

familial sex abuse typically presents itself and relevant to understand the

defendant’s plan to abuse the complaining witness.

Grooming testimony has been considered admissible and proper in many

courts. See Marjorie A. Shields, Annotation, Admissibility of Expert Testimony on

Grooming Behavior Involving Sexual Conduct with Child, 13 A.L.R. 7th Art. 9

(2015). Such testimony has been found to be relevant to provide jurors insight

as to actions that seem innocent but are instead part of a seduction technique.

United States v. Romero, 189 F.3d 576, 585 (7th Cir. 1999). Grooming evidence

has also been found relevant and admissible when used to help the jury

determine the defendant’s intent or modus operandi, see United States v. Hitt,

473 F.3d 146, 158 (5th Cir. 2006), and used to “explain not only how a child

molester could accomplish his crimes without violence, but also why a child

victim would acquiesce and be reluctant to turn against her abuser.” Jones v.

United States, 990 A.2d 970, 978 (D.C. 2010).

Irrespective of whether counsel would have had a meritorious objection to

all or part of the grooming testimony from the investigating officer and Hamdorf,

we note our record is devoid of any discussion by defense counsel regarding his

investigation, research, or strategy regarding the grooming testimony challenged

on appeal. While “expert testimony that either directly or indirectly renders an

opinion on the credibility or truthfulness of a witness” is improper, see Payton 481

N.W.2d at 327 (citation omitted), defense counsel did not object to this testimony

and even invited further discussion about grooming by asking Hamdorf to render

an opinion as to whether Maxwell’s conduct in this case amounted to grooming.

On appeal, Maxwell does not claim this line of inquiry by defense counsel was
17

improper. “While strategic decisions made after ‘thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable,’ strategic

decisions made after a ‘less than complete investigation’ must be based on

reasonable professional judgments which support the particular level of

investigation conducted.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)

(quoting Strickland v. Washington, 466 U.S. 668, 690–91 (1984)).

Because we cannot on this record assess whether counsel had

reasonable strategic reasons for not objecting and even developing the grooming

testimony at trial, this claim must be preserved for postconviction-relief

proceedings where counsel will be given an opportunity to explain his conduct.

State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer is entitled to his

day in court, especially when his professional reputation is impugned.”).

E. Prosecutorial Misconduct. For his final claim of ineffective

assistance of counsel, Maxwell asserts his attorney should have objected to what

he claims were multiple instances of prosecutorial misconduct. He again raises

claims that counsel should have objected to the many instances of leading

questions. As that claim was addressed above, there is no need to repeat that

analysis here. He also claims counsel’s failure to object to what he claims was

improper grooming testimony that vouched for the complaining witness’s

credibility was prosecutorial misconduct. As we concluded the record was not

adequate to address the ineffective claims regarding grooming, we do not

address that part of his claim of prosecutorial misconduct, preserving that issue

as well for possible postconviction-relief proceedings. However, Maxwell also

claims counsel was ineffective in failing to object when witnesses were asked to
18

comment on the veracity of other witnesses and when the investigating officer

was asked about the charging decision.

(1) Comments on Charging Decision. Maxwell asserts the prosecutor

should not have asked the investigating officer about the decision to charge

Maxwell with a crime.

Q. And so based upon your investigation you made the
decision to charge the Defendant with lascivious conduct of a
minor? A. I consulted with the county attorney at that time, Julie
Forsyth, and she advised me that that was the charge to file.

Maxwell asserts this testimony was “an improper comment on the evidence,

invaded the province of the factfinder and was directed toward Maxwell’s guilt

and the credibility of crucial witnesses.” We disagree. The fact that a charge

was filed accusing Maxwell of lascivious conduct with a minor is a forgone

conclusion based on the fact a trial was occurring where Maxwell faced such a

charge. The fact that the decision to charge was made based on the

investigation of the officer is also apparent based on the fact that trial was

occurring. The question did not ask the officer to opine whether he believed or

disbelieved certain witnesses he interviewed in the course of his investigation.

We conclude counsel did not violate an essential duty in failing to object to this

question by the prosecutor.

(2) Comments on Veracity. Maxwell highlights two portions of the trial

transcript that he claims illustrate the prosecutor improperly asking a witness to

comment on the veracity of another witness. During the complaining witness’s

father’s testimony, the prosecutor asked, “Has [the complaining witness] ever lied
19

to you?” to which the father responded, “No.” In addition, during the prosecutor’s

cross-examination of Maxwell’s wife, the following exchange occurred:

Q. I want to be brief about this. You have heard about the
incident that [the complaining witness] has reported in the hotel
room on the 14th? Is that correct? A. Yes.
Q. And it is your testimony here today that she is not being
truthful about that? A. Yes.
Q. You have heard about the incident that [the complaining
witness] spoke about in the vehicle on March 16th? Is that correct?
A. Was that a Saturday?
Q. Sunday. A. Yes. I have heard about it. Yes.
Q. Your testimony today is that [the complaining witness] is
making that up? A. Yes.
Q. You have heard the testimony of [another youth group
member], what was discussed in the vehicle on March 16th? A.
Yes.
Q. And it is your testimony that [she] is making that up? A.
In a roundabout. Yes.
Q. And it is your testimony or you have heard about the
allegation that occurred on March 17th in the church basement? Is
that right? A. Yes.
Q. Your testimony here today is that you believe [the
complaining witness] is making that incident up? A. Yes. Yes.
Q. Is that right? A. Yes.

“It is well-settled law in Iowa that a bright-line rule prohibits the questioning

of a witness on whether another witness is telling the truth. There are no

exceptions to this rule.” Bowman v. State, 710 N.W.2d 200, 204 (Iowa 2006).

The State maintains the question posed to the complaining witness’s father did

not violate the bright-line rule because he was not asked whether the

complaining witness lied in her testimony or statements to police but instead was

asked about her general character for truthfulness, and the State claims, that
20

testimony could have been admissible under Iowa Rule of Evidence 5.608(a). 2

We note for reputation evidence of truthfulness to be admissible in the form of an

opinion, the truthful character of a witness has to first be “attacked by opinion or

reputation evidence or otherwise.” Iowa R. Evid. 5.608(a)(2). The State does

not point us to any place in the trial transcript, prior to the complaining witness’s

father’s testimony, where the complaining witness’s reputation for truthfulness

had been attacked. We thus conclude rule 5.608 does not justify this question by

the prosecutor.

With respect to the testimony of Maxwell’s wife, the State maintains this

line of questioning did not violate the bright-line rule because the State was

asking Maxwell’s wife to comment on the truthfulness of the prior statements

made by the complaining witness and the other youth group member, not the trial

testimony. We do not discern the prosecutor made any distinction between the

prior statements and the trial testimony of the complaining witness or the other

youth group member. We agree with Maxwell that the prosecutor’s questions

posed to the complaining witness’s father and Maxwell’s wife violate the bright-

line rule prohibiting the questioning of a witness regarding whether another

witness is telling the truth. We must then turn to the question of whether

2
Iowa Rule of Evidence 5.608(1) provides:
a. Opinion and reputation evidence of character. The credibility of
a witness may be attacked or supported by evidence in the form of
opinion or reputation, subject to the following limitations:
(1) The evidence may refer only to character for truthfulness or
untruthfulness.
(2) Evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
21

counsel’s failure to object to these questions caused Maxwell prejudice. See

Bowman, 710 N.W.2d at 205–06.

With respect to the prejudice prong, we begin by noting this was not a jury

trial but a trial to the court.

[A]n appellate court is less likely to reverse when improper
evidence is introduced in bench trials in which the matter is for a
judge’s determination rather than for determination by a jury. This
is because legal training helps equip those in the profession to
remain unaffected by matters that should not influence the
determination.

State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004) (citation omitted). In State

v. Casady, 491 N.W.2d 782, 786 (Iowa 1992), the supreme court concluded

there was “less danger of unfair prejudice” from the admission of “other-crimes

evidence” because the case was tried to the court—“The prejudicial effect of

other-crimes evidence is reduced in the context of a bench trial.” That is

because “[j]udges routinely are called upon to consider the admissibility of

evidence that may be later excluded at trial. Judicial knowledge of evidence

which is subsequently not admissible does not ordinarily undermine later judicial

determinations in the case.” State v. Decker, 744 N.W.2d 346, 356 (Iowa 2008);

see also State v. Taylor, 689 N.W.2d 116, 130 (Iowa 2004) (“Clearly the

likelihood of an improper use of the evidence is reduced by the fact that the

present case was tried to the court.”).

The district court’s decision finding Maxwell guilty contained the

conclusion the court found Maxwell guilty beyond a reasonable doubt of the

crime charged by finding each of the elements of the offense. The court then

noted it found “the State’s witnesses to be credible and the Defendant’s
22

witnesses to not be credible.” Maxwell filed a posttrial motion for expanded

findings of fact and conclusions of law, asserting the content of the verdict did not

satisfy Iowa Rule of Criminal Procedure 2.17(2) and asking the court to more fully

detail the evidence considered and articulate the weight the court gave to the

various witnesses’ testimonies and the various exhibits entered. In denying the

motion, the court stated,

I can tell you right now the court relied upon the entire record. You
made some mention that you wanted to know what was relevant.
The entire record was relevant. It wouldn’t have come in otherwise.
It’s this court’s understanding that I have done what I am required
to do by law, to find beyond a reasonable doubt each and every
element of the crime charged. I have specifically done that. I have
also stated that I find the State’s witnesses credible. . . . Based
upon the entire record and the Court’s reliance on the same in all of
the evidence presented at trial, I don’t think it’s necessary for the
Court to expand any further than what I have done. . . . But your
motion is overruled in its entirety.

Maxwell does not challenge the form of the verdict on appeal, but he notes the

court’s statements that the entire record was relevant and relied on show that the

improper evidence admitted in this case had a prejudicial effect, both individually

and cumulatively. Because of the court’s limited findings of fact, we are unable

to conclude, based upon the court’s written verdict, the court did not consider or

weigh the offending evidence. However, in order to find prejudice, we must find

that our confidence in the outcome of the trial is undermined based on counsel’s

failures. Bowman, 710 N.W.2d at 206. “[W]e must consider the totality of the

evidence, what factual findings would have been affected by counsel’s errors,

and whether the effect was pervasive or isolated and trivial.” Id. (citation

omitted).
23

The credibility of the complaining witness was central to the case. This is

not a case where there was overwhelming evidence as there was very little

physical evidence to support the claims made. However, the court, with legal

training, would understand its role was to assess whether a witness was being

truthful, and the court would not have been confused about the burden of proof.

See id. at 207 (noting the State distorted the burden of proof and took the jury’s

focus away from the State’s obligation to prove the defendant guilty beyond a

reasonable doubt by focusing on which party was lying). It is also unlikely the

court would have been inflamed by Maxwell’s wife’s answers attacking the

credibility of the complaining witness. See State v. Carey, 709 N.W.2d 547, 558

(Iowa 2006) (noting the use of the word “liar” is considered misconduct because

it is inflammatory and improper). We conclude Maxwell has failed to prove he

was prejudiced by the questions posed to his wife regarding whether the

complaining witness was lying. Our confidence in the outcome of the trial is not

undermined by defense counsel’s failure to object to these improper questions in

light of the fact the matter was tried to a court and not to a jury.

IV. Appeal Bond.

In his final claim on appeal, Maxwell asserts the court abused its

discretion when it imposed a firearms ban as a condition of his appeal bond. He

asserts the nature of the charge he was convicted of has nothing to do with

firearms, there was no evidence he was mentally unstable, he has no prior

conviction for any violent crime, and he is highly regarded and involved in his

community.
24

“[W]e review the amount and conditions of an appeal bond for an abuse of

discretion.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

The primary purpose of imposing conditions or restrictions
on bail following the appeal of a bailable offense is to assure the
future appearance of the defendant upon completion of the appeal
and to provide for the safety of others during the course of the
appeal. Courts have discretion to set the amount and conditions of
an appeal bond consistent with this purpose.
District courts are permitted to consider a variety of factors in
setting the amount and conditions of an appeal bond. These
factors include the seriousness of the offense and the defendant’s
prior record.

Id. at 726 (internal citations omitted).

In this case, the complaining witness testified, before the incident on

March 17, Maxwell had informed her he carried a gun and showed it to her. She

testified the presence of the gun prevented her from telling others of the

inappropriate contact between the two of them because she was afraid he would

shoot her. In exercising its discretion in setting the appeal bond conditions, we

conclude the court was permitted to consider the complaining witness’s

testimony about the effect the presence of the gun had on her, and we find no

abuse of discretion in the court imposing such a ban in the appeal bond. Id.

(“[T]he district court was permitted to give more weight to some factors than to

others in determining the conditions of bail.”).

V. Conclusion.

For the reasons stated herein, we conclude Maxwell did not prove counsel

was ineffective in failing to object to leading questions, evidence of prior bad

acts, and rebuttal testimony from the State. We conclude he cannot prove

counsel’s failure to object to prosecutorial misconduct resulted in prejudice.
25

However, we preserve his ineffective-assistance claim with regard to the

potential vouching testimony for possible postconviction-relief proceedings. We

also conclude the district court did not abuse its discretion in imposing a firearms

ban as part of the appeal bond. We therefore affirm Maxwell’s conviction.

AFFIRMED.