                    IN THE COURT OF APPEALS OF IOWA

                                    No. 12-1810
                                Filed July 16, 2014


CARL GENE GARNICA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



       Carl Garnica appeals following the district court’s denial of his application

for postconviction relief. AFFIRMED.



       Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

       Carl Garnica appeals following the district court’s denial of his application

for postconviction relief. Of seven distinct allegations of ineffective assistance of

trial counsel presented to the district court, Garnica brings three for our review on

appeal: first, that trial counsel’s motion for a directed verdict of acquittal failed to

preserve what would otherwise have been an appealable issue; second, that trial

counsel failed to move for a mistrial based on prosecutorial misconduct; and

third, that trial counsel failed to sufficiently investigate the case. After a careful

review of the record, we are persuaded that the district court’s disposition on

these assertions was correct, and we affirm.

       I. Factual and Procedural Background

       On January 6, 2009, Garnica went to trial on two counts of sexual abuse

in the second degree as to two different alleged victims.            Defense counsel

collected names and contacted potential witnesses while preparing the case for

trial. Counsel did not depose the State’s witnesses. The jury acquitted Garnica

on the count involving the first alleged victim and convicted on the count involving

the second alleged victim.

       During the trial, the State presented as a witness a social worker who was

a counselor for the alleged victim in the first charge.         During the witness’s

testimony, defense counsel raised several hearsay objections. The district court

sustained the first objection and directed the State to lay sufficient foundation for

any testimony offered as a hearsay exception. Defense counsel continued to

object, but the court overruled several of those objections as the State continued

to develop the testimony.
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         Following the State’s case in chief, Garnica’s trial counsel moved for a

directed verdict of acquittal “on the grounds that there is not substantial evidence

in the record from which a rational fact finder could find guilt beyond a

reasonable doubt.       That motion [was] made with respect to both counts.”

Counsel stated in addition, “[T]here is not sufficient or substantial evidence in the

record from which a juror could find beyond a reasonable doubt that, if they

believe abuse occurred with respect to [the second count], that abuse occurred

prior to the twelfth birthday of the child.”

         After sentencing, Garnica appealed, and this court affirmed his conviction.

State v. Garnica, No. 09-0370, 2010 WL 446521, at *1 (Iowa Ct. App. Feb. 10,

2010).    He later filed an application for postconviction relief based on seven

theories of ineffective assistance of trial counsel. The district court denied the

application on September 13, 2012. Garnica now appeals the denial of three of

his asserted bases for relief.

         II. Scope and Standard of Review

         We review postconviction proceedings for errors at law, but we review

claims of ineffective assistance of counsel de novo. Collins v. State, 588 N.W.2d

399 (Iowa 1998).

         III. Discussion

         For Garnica to succeed on his ineffective-assistance-of-counsel claims, he

must establish both that his trial counsel failed to perform an essential duty and

that he was prejudiced as a result. See State v. Maxwell, 743 N.W.2d 185, 195

(Iowa 2008). The first element, failure to perform an essential duty, is satisfied

only if counsel performed below the standard of a reasonably competent
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attorney. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “We presume

the attorney performed competently, and the applicant must present an

affirmative factual basis establishing inadequate representation.” Millam v. State,

745 N.W.2d 719, 721 (Iowa 2008). “We will not second-guess reasonable trial

strategy.” Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa 2004).

       Garnica must also show that any failure to perform an essential duty

caused him prejudice, meaning “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, 695 (1984)). This prong requires that counsel’s error undermine our

confidence in the outcome of the criminal trial. Id.

       A. Deficient Motion for Acquittal.      Garnica first asserts that his trial

counsel’s motion for a directed verdict of acquittal was not specific enough to

preserve the issue of sufficiency of the evidence for appeal. However, we agree

with the district court that the language of counsel’s motion at least implied there

was insufficient evidence as to the occurrence of the offending act.

       Counsel made his motion based on insufficient evidence as to both

counts.   The motion alleged in the alternative—and as to the second count

only—that there was insufficient evidence of the age of the alleged victim even if

the jury found that the act had occurred.        By negative inference, counsel’s

primary objection was to the sufficiency of the evidence of the offending acts.

Therefore, the issue was in fact preserved for appeal despite the alleged lack of

specificity because “we recognize an exception to the general error-preservation

rule when the record indicates that the grounds for a motion were obvious and
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understood by the trial court and counsel.” State v. Williams, 695 N.W.2d 23, 27

(Iowa 2005). Therefore, the district court was correct to conclude that counsel

did not breach a duty in his motion for a directed verdict and that Garnica

suffered no prejudice from it.

       B. Failure to Move for a Mistrial for Prosecutorial Misconduct. Garnica

next alleges counsel failed to make a pivotal motion for a mistrial based on

prosecutorial misconduct during the State’s direct examination of the social

worker. However, counsel voiced several objections throughout the testimony of

the social worker, some of which the district court sustained and some of which it

overruled. As a result of the objections, the State withdrew any impermissible

questions and went on to lay sufficient foundation to render the evidence

admissible.    Counsel was under no duty to move for a mistrial under these

circumstances. Additionally, the witness in question testified only with regard to

the alleged victim in the first count of the trial information. Garnica was acquitted

on that count, which undermines his contention that the testimony was inherently

prejudicial.

       C. Failure to Investigate. Garnica lastly alleges that trial counsel failed to

sufficiently investigate the case. He predicates this assertion on three facts: first,

that counsel conducted no formal discovery, i.e. depositions; second, that

counsel did not speak with Judy Anthony, Garnica’s girlfriend at the time of the

alleged abuse, about testifying; and third, that counsel did not call Mary Davis,

Garnica’s girlfriend at the time the allegations were made, as a witness for the

defense. However, at the postconviction hearing in the district court, trial counsel

provided cogent and reasonable strategic justifications for conducting the trial
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without taking these steps, negating Garnica’s claim that counsel failed an

essential duty.

       First, as to formal discovery, trial counsel explained that deposing the

State’s witnesses can alert the State to holes in its case, and counsel preferred

to expose those holes in front of the jury.    He also noted that deposing the

State’s witnesses may compromise his ability to negotiate favorable plea

agreements and that deposition testimony may come into the trial record if the

State’s witnesses become unavailable. He therefore chose not to conduct formal

discovery.

       Second, regarding Judy Anthony, the record shows that Anthony was

difficult and uncooperative with counsel. Trial counsel attempted to reach out to

her on multiple occasions, but she failed to respond.        She testified at the

postconviction trial that she attempted to return counsel’s calls only one time and

failed to reach him.   Anthony’s failure to cooperate will not render counsel’s

assistance ineffective. Additionally, it is unclear how Anthony’s testimony would

have assisted the defense, since part of Garnica’s theory of the case was that

Anthony herself helped orchestrate the allegations of sexual abuse with the

alleged victims.

       Lastly, regarding Mary Davis, counsel testified that he had been in contact

with her about the case and had discussed the existence of other witnesses with

her. He elected not to call Davis to the stand because her testimony would have

been cumulative. Any new evidence she could have added to the record would

have amounted to character evidence, which would have opened the door for

rebuttal witnesses from the State.
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       The record shows that defense counsel did sufficiently investigate the

case to provide effective assistance of counsel. The facts allegedly amounting to

a failure to investigate were reasonable trial strategy determinations.     Trial

counsel did not fail to perform any duty owed to Garnica, and Garnica was not

prejudiced by any of counsel’s strategic decisions.

       IV. Conclusion

       Garnica has failed to persuade us that his trial counsel was ineffective.

The language of counsel’s motion for a directed verdict was sufficient, the

decision not to move for mistrial based on prosecutorial misconduct was

reasonable, and counsel adequately investigated the case. We affirm the district

court’s denial of postconviction relief.

       AFFIRMED.
