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Date: 01-12-2018

Case Style:

MARK ALLAN BITZAN vs. STATE OF IOWA

Casper man convicted of rape again

Case Number: 16-1943

Judge: Anuradha Vaitheswaran i

Court: COURT OF APPEALS OF IOWA

Plaintiff's Attorney: Thomas J. Miller
Attorney General

Louis S. Sloven
Assistant Attorney General

Defendant's Attorney: James P. McGuire

Description: A college student on her way home for winter break stopped at a rest area
in Monona County, Iowa. A man in the women’s restroom accosted her, forcibly
moved her to the handicapped stall, threatened her with a pocket knife, and raped
her.
A jury found Mark Bitzan guilty of first-degree kidnapping.1 This court
affirmed his judgment and sentence of life in prison. See State v. Bitzan, No. 12
0551, 2013 WL 3273813, at *5 (Iowa Ct. App. June 26, 2013). Bitzan filed an
application for postconviction relief (PCR) alleging his trial attorneys provided
ineffective assistance. The district court denied the application following an
evidentiary hearing. Bitzan appealed.
I. Ineffective Assistance of Counsel
Bitzan contends his trial attorneys were ineffective in failing to (A) object to
a nurse’s testimony vouching for the credibility of the student; (B) investigate the
case and interview witnesses; (C) advise him of the consequences of his decision
not to testify and prepare him to testify; (D) object to or investigate DNA evidence;
(E) consult an expert about false allegations of rape; (F) object to alleged
prosecutorial misconduct; (G) consult an expert about a vaginal tear sustained by
the student; (H) impeach the student and explicate his defense of consensual sex;
(I) challenge particular jurors for cause or exercise peremptory strikes; and (J)
object to testimony about another assault. To prevail, he must show (1) counsel
1 The State also charged Bitzan with second-degree sexual abuse. The jury was instructed to consider this charge only if the State failed to prove the elements of firstdegree kidnapping. See State v. Mitchell, 450 N.W.2d 828, 831 (Iowa 1990) (holding second-degree sexual abuse is a lesser-included offense of first-degree kidnapping).



3
breached an essential duty and (2) prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
A. Vouching Testimony
The following evidence is relevant to the vouching claim. After the student
was raped, she drove to a hospital, where she was examined by an emergency
room nurse with twenty-five years of experience. The defense called the
registered nurse as a witness to controvert the student’s account of having to stop
at the rest area to address stomach issues. On cross-examination, the prosecutor
asked the nurse whether the student’s demeanor was “consistent with” what she
had seen in other women who said they were sexually assaulted. Defense counsel
objected on relevancy grounds and on the ground the question was outside the
scope of direct examination. The district court overruled the objection and the
prosecutor proceeded with the following exchange:
Q. Was there anything about the way she appeared that gave you cause to doubt what she was telling you? A. No. . . . . Q. Did she present in your hospital asking to be treated for a stomach ailment or because she had been sexually assaulted? A. She presented because she had been sexually assaulted. Q. I believe it’s your testimony that nothing she did made you doubt that, correct? A. That is correct. Q. Nothing about her demeanor? A. Nothing about her demeanor. Q. Nothing about what she told you? A. Nothing about what she told me. Q. Nothing about how she reacted to any of the questions you asked? A. Nothing about how she reacted to the questions. Q. Nothing about— A. Nothing. Q. —anything to do with her made you doubt what she had to tell you? A. I did not doubt her at all, no. Bitzan’s attorney failed to object to this line of questioning. On redirect
examination, he asked the nurse, “Your role wasn’t to decide whether or not what



4
she said was the truth, correct?” The nurse responded, “This is true.” The attorney
then asked, “So that’s not something that you were in a position to determine at
the time?” The nurse answered, “Personally, I felt as if she was not—she was
being honest.”
Bitzan contends the nurse impermissibly vouched for the student’s
credibility and “counsel breached an essential duty by failing to object to the long
series of improper questions.” On our de novo review, we agree.
The nurse categorically stated nothing made her doubt the student’s
narrative and she believed the student was “being honest.” She directly opined on
the credibility of the college student, in contravention of decades old precedent.
See State v. Myers, 382 N.W.2d 91, 95 (Iowa 1986) (“[E]xpert opinions on the
truthfulness of a witness should generally be excluded because weighing the
truthfulness of a witness is a matter reserved exclusively to the fact finder.”).
Our courts have reaffirmed this precedent. See State v. Brown, 856 N.W.2d
685, 689 (Iowa 2014) (concluding sentence in physician’s report “indirectly
convey[ed] to the jury that [the child was] telling the truth about the alleged abuse
because the authorities should conduct a further investigation into the matter”);
State v. Dudley, 856 N.W.2d 668, 676-77 (Iowa 2014) (holding an expert’s
testimony is “not admissible merely to bolster a [witness’s] credibility”); State v.
Jaquez, 856 N.W.2d 663, 665 (Iowa 2014) (concluding the expert witness indirectly
vouched for a child victim’s credibility in stating the victim’s “demeanor was
completely consistent with a child who has been traumatized, particularly multiple
times”); In re C.W., No. 16-1677, 2017 WL 5185433, at *5 (Iowa Ct. App. Nov. 8,
2017) (“Counsel’s questioning to elicit the vouching testimony was a breach of duty



5
to represent [the juvenile] effectively.”); Simpson v. State, No. 15-1529, 2017 WL
1735615, at *7 (Iowa Ct. App. May 3, 2017) (concluding trial attorney breached a
duty to object to coaching testimony); State v. Tjernagel, No. 15-1519, 2017 WL
108291, at *8 (Iowa Ct. App. Jan. 11, 2017) (concluding trial counsel breached an
essential duty in failing to object to expert testimony “indirectly vouching for [a
child’s] credibility and truthfulness”); State v. Pitsenbarger, No. 14-0060, 2015 WL
1815989, at *9 (Iowa Ct. App. Apr. 22, 2015) (finding no reasonable strategy for
failing to object to improper vouching testimony). In most if not all these opinions,
the statements found to have been impermissible were far more indirect than the
nurse’s statements in this case.
The State only addresses Brown. In its view, the opinion is inapposite
because it discussed expert credibility opinions, whereas the nurse testified as a
lay witness. To the contrary, the nurse testified in her capacity as a trauma
professional. Her role was no different than the forensic interviewer and therapist
in Dudley or the physicians who examined the children in Brown and Jaquez. See
Brown, 856 N.W.2d at 689; Dudley, 856 N.W.2d at 677-78; Jaquez, 856 N.W.2d
at 664; see also Myers, 382 N.W.2d at 98 (finding school principal’s vouching
testimony impermissible); State v. Gillison, No. 15-2045, 2017 WL 2181176, at *3
(Iowa Ct. App. May 17, 2017) (concluding forensic interviewer and other witnesses
offered “direct testimony about their belief in the credibility of the witness’s
allegations” and defendant’s attorney “breached a duty in failing to object”).
Notably, the State filed a pretrial motion in limine seeking to exclude
precisely this type of vouching testimony. The district court granted the motion.
The vouching testimony elicited from the nurse contravened the ruling. See



6
Tjernagel, 2017 WL 108291, at *7 (noting State filed a pretrial motion in limine
seeking to bar “[a]ny witnesses testifying about the credibility of other witnesses”).
We conclude Bitzan’s attorneys breached an essential duty in failing to object to
the prosecutor’s questions and the nurse’s responses, including the response to
the defense question.
This brings us to the Strickland prejudice requirement. To satisfy this prong
of the test, an applicant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the results of the proceeding would have been different.”
Strickland, 466 U.S. at 694. This standard is not met when the evidence of guilt is
overwhelming. See State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015)
(concluding “there was no reasonable probability the result of the trial would have
been different” where “[t]he evidence of guilt was overwhelming”). In cases
involving a witness who vouches for the credibility of another witness, we also have
asked whether the case turned on witness credibility. Tjernagel, 2017 WL 108291,
at *8 (finding prejudice where “the State’s case . . . rested entirely on the credibility
of the witnesses”); Pitsenbarger, 2015 WL 1815989, at *10 (concluding “the result
may have been different if proper objections had been made to exclude the
improper testimony” because “the State’s case . . . rested entirely on the credibility
of the witnesses”). And we have considered the presence or absence of physical
evidence, the pervasiveness of the vouching testimony, and its emphasis in the
presentation. See Tjernagel, 2017 WL 108291, at *7.
Our de novo review of the trial record reveals the following facts. The
college student described stopping at the rest area, going to the women’s
restroom, seeing a pair of shoes in the handicapped stall, and having “this instant



7
reaction something is wrong here.” Despite this trepidation, her upset stomach left
her no choice but to relieve herself. She stepped into the toilet two stalls down.
Soon, she heard the other person leave the handicapped stall, go towards the
door, and return to the handicapped stall. She proceeded to the sink area and
began washing her hands. As she did so, she glanced up at the mirror and noticed
a man standing behind her.
The man wrapped his right hand around her torso and the other hand over
her mouth, kissed her on the head, asked if she was going to be quiet, and, after
she finished washing her hands, forced her into the handicapped stall. He closed
and locked the stall door and held her against the wall. The student was “shaking
uncontrollably” in “terror.” She testified, “I don’t know how many people in their life
actually feel genuine terror, but you can’t describe that sort of feeling.” In a low,
“creepy” voice, the man attempted to determine whether someone was waiting for
her and whether she was on birth control. He pulled out a “collapsible knife” and
said, “If you are quiet, I won’t hurt you.”
The man proceeded to hurt her. He removed her snow boots and pants,
unzipped and lowered his pants, touched her labia and clitoris, forced her to lie on
the floor of the stall, and inserted his penis into her vagina. He ejaculated, zipped
up his pants, told her to wait in the restroom, and left.
The student left soon after. She obtained the number of her college ROTC
commandant and phoned her.
The commandant testified to her conversation with the student. In her
words, the student told her “she was raped.” On determining the man ejaculated,
the commandant advised the student not to wash herself and to get to a hospital.



8
A sexual assault nurse examiner at a second hospital to which the student
was transferred asked her what happened. The nurse examiner recounted the
student’s response, as follows:
She stopped off at a rest stop . . . approximately 50 miles, roughly, north of Council Bluffs . . . . She went into the women’s restroom to use the restroom and looked underneath the stalls and saw feet underneath one of the stalls. She proceeded to use the restroom. [S]he came out and was washing her hands. She said that a man had come out of one of the stalls, came up behind her, and put his hand over her mouth and kissed the top of her head. She told me that he said not to fight her, to cooperate with . . . him. He then forced her into . . . the handicapped stall in the restroom. She told me that he pushed her up against the wall, that he kept asking her if she was going to cooperate with him. He took a pocketknife out of his pocket numerous times and showed it to her, and you know, told her that she needed to cooperate with him . . . . She just told me that . . . he had taken her pants and her boots off, that he had laid her on the floor of the stall in the restroom and that he had raped her.

The nurse examiner completed a sexual assault kit that included two swabs
from the student’s genital area. The department of criminal investigation tested
these samples and identified an unknown male DNA profile. This profile was
compared to known profiles. According to a DCI criminalist, “[I]f somebody’s DNA
profile matches or is identical to the profile that we obtained from the evidence,”
the agency issues a statistic “that says less than one in 100 billion” in the general
population have that profile. Within these parameters, the criminalist opined, “The
profile that was obtained from the vaginal swab and the pubic hair swab [of the
student] matched the known profile of Mark Bitzan.”
A DCI special agent informally spoke to the student at the hospital.
According to the agent, “She stated that she had to use the restroom” and “she
decided to pull over knowing that she was still 57 miles away from Council Bluffs.”
She provided the agent with a description of her assailant. During a formal



9
interview several hours later, the student provided a consistent description of the
attacker.
Bitzan exercised his constitutional right not to testify. His defense of
consensual sex was advanced through cross-examination of the State’s witnesses
and through several defense witnesses, including Bitzan’s parents, a student who
was asked about the consequences of providing false testimony, and the
emergency room nurse whose vouching testimony is being challenged.
Even without the vouching testimony, the evidence supporting the jury’s
finding of guilt was overwhelming. First, the student did not waver from her
narrative, even in the face of vigorous cross-examination by the defense. For
example, when one of the attorneys asked, “Bottom line is that you were in this
rest area, and you met this person, and for whatever reason, you allowed this to
happen, is that true?” she responded, “No. I did not meet this person. This person
grabbed and attacked me.” Second, the DNA evidence corroborated the student’s
testimony. Finally, the testimony of the student’s commandant, the sexual assault
nurse examiner, and the DCI special agent lent credence to the student’s
testimony.
We recognize the prosecutor honed in on the impermissible vouching
testimony in her closing argument. But given the wealth of permissible evidence
corroborating the student’s testimony, we are persuaded the prosecutor’s
comments did not generate a reasonable probability of a different outcome.
B. Remaining Ineffective Assistance Claims
Having found the evidence of guilt overwhelming, we could conclude
Bitzan’s remaining ineffective assistance claims fail on the Strickland prejudice



10
prong. But because Bitzan also asserts the combined effect of these errors denied
him a fair trial, we will separately address those claims. See State v. Clay, 824
N.W.2d 488, 500, 501-02 (Iowa 2012) (stating, “Under Iowa law, we should look to
the cumulative effect of counsel’s errors to determine whether the defendant
satisfied the prejudice prong of the Strickland test,” and stating, “If the defendant
raises one or more claims of ineffective assistance of counsel, and the court
analyzes the prejudice prong of Strickland without considering trial counsel’s
failure to perform an essential duty, the court can only dismiss the postconviction
claim if the alleged errors, cumulatively, do not amount to Strickland prejudice”).
On our de novo review, we are persuaded Bitzan’s trial attorneys breached
no essential duty in (B) investigating the case and interviewing witnesses; (C)
advising him of the consequences of his decision not to testify and preparing him
to testify; (D) failing to object to or investigate the DNA profile evidence; (E) failing
to consult an expert about false allegations of rape; (F) failing to object to claimed
prosecutorial misconduct; (G) failing to consult an expert to opine on the cause of
the vaginal tear sustained by the student; and (H) impeaching the student and
explicating the defense of consensual sex. Bitzan’s primary attorney thoroughly
explained his trial strategy with respect to most of these contentions. The strategy
as explained was reasonable or, where it was not explained, was apparent from
the trial record.
We are less sanguine about defense counsels’ failure to challenge certain
jurors for cause or exercise a peremptory strike. Although Bitzan challenges
defense counsels’ conduct with respect to several members of the jury panel, our



11
concern is with juror #21.2 The juror stated he had an existing attorney-client
relationship with the part-time Monona County Attorney who, in his civil practice,
was “taking care of restaurant matters” for him.
Iowa Rule of Criminal Procedure 2.18(5)(e) allows a challenge for cause to
a potential juror “[s]tanding in the relation of . . . attorney and client.” Although the
Monona County Attorney was not the primary prosecutor of Bitzan’s case, he was
listed on the State’s filings and was the head of the office employing one of the
prosecutors who handled the case. Under these circumstances, defense counsel
should have moved to have the juror stricken for cause. See, e.g., Futrell v.
Commonwealth, 471 S.W.3d 258, 274 (Ky. 2015) (stating potential juror’s “close
relationship with the prosecutor trying the case is presumptively disqualifying” and
“any suggestion of an on-going relationship with the prosecutor, such as the
potential juror’s intent to make use of his professional services again, is
disqualifying” and concluding district court’s failure to remove a juror for cause after
he acknowledged actual bias based on the attorney-client relationship was an
abuse of discretion, as was the court’s failure to remove a juror whose son was
represented by the prosecutor); cf. State v. Shimko, No. 05-1758, 2006 WL
3018467, at *2 (Iowa Ct. App. Oct. 25, 2006) (noting attorney-client relationship
ended a year earlier). Their failure to make the motion constituted a breach of an
essential duty.
2 On our review of the reported voir dire of the remaining challenged jurors and the notes of Bitzan and his attorneys, we are persuaded counsel did not breach an essential duty in failing to challenge those jurors for cause or exercise peremptory challenges.



12
That said, Bitzan did not establish Strickland prejudice. Both he and his
attorneys had notes reflecting their knowledge of the juror’s relationship with the
county attorney and indicating a preference to have the potential juror remain on
the jury. In addition, the juror stated the relationship he had with the prosecutor
would not give him pause or impact his ability to listen to a case the county
attorney’s office was prosecuting. See Shimko, 2006 WL 3018467, at *2 (noting
juror “affirmed that he could set aside his personal biases and opinions and render
a verdict only on the information presented as evidence and testimony. He further
opined that his past business dealings with the prosecutor would not interfere with
his ability to impartially judge the evidence presented at trial”).
We are left with the claimed failure of Bitzan’s attorneys to object to
testimony about another assault. Specifically, the DCI special agent who
interviewed the student testified, “[A]pproximately a few weeks prior to this incident
being reported to us, we had another reported incident in Harrison County of a
possible sexual assault.” According to Bitzan, the State deliberately elicited the
agent’s response “knowing his answer would be devastating testimony that would
be highly prejudicial.”
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted
in accordance with the character.” Iowa R. Evid. 5.404(b)(1). However, it may be
admissible for other purposes. Iowa R. Evid. 5.404(b)(2).
At the postconviction hearing, one of Bitzan’s attorneys was asked about
this testimony. He had no specific recollection of it and agreed the record would
speak for itself. On our de novo review, we note the DCI agent did not tie the prior



13
incident to Bitzan and proceeded to answer questions about the DNA of a “known
local sex offender” other than Bitzan. Read in context, the challenged testimony
may have been a reference to the local sex offender. We conclude counsel did
not breach an essential duty in failing to object to the testimony. But if counsel had
an obligation to object, the claim fails on the Strickland prejudice prong, given the
overwhelming evidence supporting the finding of guilt.
Having found the remaining ineffective assistance claims unpersuasive, we
find the claim of cumulative error unavailing.
II. Prosecutorial Misconduct
Bitzan contends “the district court erred in failing to find prosecutorial
misconduct.” The PCR court did not rule on any independent prosecutorial
misconduct claims. Accordingly, we have nothing to review. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).

Outcome: We affirm the denial of Bitzan’s postconviction relief application.

Plaintiff's Experts:

Defendant's Experts:

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