                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2164
                               Filed March 4, 2020


JAMES ALAN CHRISTENSEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      James Christensen appeals from the district court’s denial of his second

application for postconviction relief. AFFIRMED.



      Alfredo Parrish and Adam Witosky of Parrish Kruidenier Dunn Boles Gribble

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

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.



      Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.

       James Christensen appeals the district court’s denial of his second

application for postconviction relief (PCR). Christensen argues he is entitled to a

new trial based on newly discovered evidence. We conclude this evidence is

merely cumulative and impeaching and would not have changed the result of the

trial. We affirm the denial of his second PCR application.

       I. Background Facts and Proceedings.

       The facts underlying Christensen’s 2009 criminal conviction are fully set

forth in our opinion in his direct appeal. See State v. Christensen, No. 09-0961,

2010 WL 4792120, at *1 (Iowa Ct. App. Nov. 24, 2010).              Relevant here,

Christensen was charged with sexual abuse in the second degree by aiding and

abetting based on allegations he helped corner and “comfort” a woman, E.S., while

his friend and coworker John Sickels raped her.1 Christensen and Sickels were

tried together, and a jury found them guilty as charged.          Christensen was

sentenced to a term of incarceration not to exceed twenty-five years with a

mandatory seventy percent minimum. His conviction and sentence were affirmed

on direct appeal. Id. at *9–10. His first PCR application was denied, and the denial

was affirmed on appeal in 2016. Christensen v. State, No. 15-0765, 2016 WL

3272213, at *4 (Iowa Ct. App. June 15, 2016).

       In 2017, Christensen filed this second PCR application based on his

allegations that two items of newly discovered evidence raise concerns about




1 At the time, Christensen was the chief of police in Creston, Iowa, and Sickels was
the assistant chief.
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whether E.S.’s trial testimony was truthful. Christensen argues that if a jury heard

this evidence, the result would have probably been different.

       The alleged new evidence is a recorded phone call and some Facebook

posts. First, the recording is of a June 2015 phone call between E.S. and Renee

Hoyt, a woman who became acquainted with E.S. and spoke to her on the phone

three times. At the time of the phone calls, E.S. was staying in a domestic-violence

shelter, having recently fled from her long-term, on-again, off-again boyfriend who

had beaten her. E.S.’s adult son feared for his mother’s safety and asked Hoyt to

speak with his mother because she needed a friend. Sympathetic to Christensen,

Hoyt knew E.S.’s current circumstances and spoke with E.S. under the guise of

friendship. While Hoyt’s stated purpose for the phone calls was to help E.S., Hoyt

knew Christensen’s first PCR application was on appeal and believed E.S. was

lying about the sexual assault. Hoyt brought up the criminal case during at least

two of these calls. Hoyt decided to record the third call to capture what she

believed were E.S.’s inconsistent statements about the assault.            During the

recorded call, E.S. accused both Sickels and Christensen of raping her, not just

Sickels, as she had testified at trial. With evidence of this call in hand, Christensen

claims E.S.’s statements during the call contradict her trial testimony and call her

testimony into doubt.

       Next, Christensen offered the second pieces of evidence. This exhibit

shows screenshots of E.S.’s Facebook posts, which appear to be from 2016, about

domestic violence perpetrated by her boyfriend.           Christensen claims these

Facebook posts establish that, at trial, E.S. would lie about the sex act being
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nonconsensual to avoid upsetting her boyfriend. Christensen asserts the evidence

shows the canard fabricated by E.S.

       After a hearing, the district court determined that E.S.’s statements in the

recording were inadmissible hearsay and that Christensen could not show that the

recording and the Facebook posts, taken independently or together, were likely to

change the outcome of the trial. The court denied this second PCR application.

Christensen appeals.

       II. Standard of Review.

       We review PCR actions based on newly discovered evidence for correction

of errors at law. More v. State, 880 N.W.2d 487, 499 (Iowa 2016). “[W]e will affirm

if the trial court’s findings of fact are supported by substantial evidence and the law

was correctly applied.” Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003).

       III. Analysis.

       On appeal, Christensen argues E.S.’s statements made during the phone

call recording are admissible as statements against interest and the recording and

E.S.’s Facebook posts constitute newly discovered evidence. He believes this

evidence requires a new trial. For purposes of this appeal, we assume without

deciding that E.S.’s statements during the phone call are admissible. For that

reason, we will not address the hearsay claim and will only address the newly

discovered evidence claim.

       Iowa Code section 822.2(1)(d) (2017) allows “a postconviction-relief

applicant a right of action when ‘[t]here exists evidence of material facts, not

previously presented and heard, that requires a vacation of the conviction or

sentence in the interest of justice.’” Moon v. State, 911 N.W.2d 137, 151 (Iowa
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2018) (quoting Iowa Code § 822.2(1)(d)).           To succeed on a claim of newly

discovered evidence, the applicant must show,

         (1) that the evidence was discovered after the verdict; (2) that it could
         not have been discovered earlier in the exercise of due diligence; (3)
         that the evidence is material to the issues in the case and not merely
         cumulative or impeaching; and (4) that the evidence probably would
         have changed the result of the trial.

Id. (citation omitted). “The standard for whether the evidence probably would have

changed the result of the trial is a high one because of the interest in bringing

finality to criminal litigation.” More, 880 N.W.2d at 499.

         Christensen argues he is entitled to a new trial based on the phone call

recording and the Facebook posts. We consider each claim in turn.

         A.   Phone Call Recording.          Even if we assume Christensen has

established the first two prongs,2 Christensen concedes he intends to use E.S.’s

statements made during the phone call to impeach her credibility. Still, he argues

these statements are material to the issues at trial because they directly contradict

her version of events, and had these statements been admitted at trial it would

have been grounds for, at a minimum, a mistrial.

         E.S.’s statements in the phone call do not exonerate Christensen but

implicate him as a principal.        E.S. never wavered from her testimony that

Christensen tried to soothe her while Sickels raped her, the foundation of

Christensen’s conviction. While she made conflicting statements during the phone

call, she did not recant her trial testimony and insisted she was telling the truth at

trial.



2   The June 2015 call occurred over six years after the jury verdict.
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       Apart from E.S.’s testimony, other evidence at trial tended to implicate

Christensen, including his own testimony.           During his direct examination,

Christensen denied having touched or comforted E.S. and denied having

witnessed a sex act.     On cross-examination, however, he both admitted and

denied that he saw Sickels having sex with E.S. He also acknowledged it was

possible that he may have touched E.S.’s hand and told her, “Don’t worry, this

didn’t happen” when he left.

       For all of these reasons, Christensen has not met the high bar of proving

the result probably would have been different had the jury heard this recording.

       B. Facebook Posts. Christensen argues that E.S.’s Facebook posts about

domestic violence perpetrated by her boyfriend are evidence of her motivation to

lie at trial regarding consent to sexual intercourse. Christensen concedes these

posts would be used to attack E.S.’s credibility.

       While the Facebook posts were created after the jury verdict, Christensen

was aware before trial that E.S.’s boyfriend was abusive. E.S.’s credibility and

motivation to lie to avoid angering her boyfriend were directly at issue in the

criminal trial and were the subject of a pretrial motion in limine. Although the trial

court limited some testimony, the jury heard E.S. testify that she and her boyfriend

sometimes got into “semiphysical confrontations” but she was not afraid of him.

Likewise, E.S.’s boyfriend testified that he and E.S. sometimes had “physical

confrontations” when they had been drinking. And the jury heard from E.S.’s

manager about a time E.S. came to work with a black eye, cuts on her hand, and

bruises on her arms. When the manager asked E.S. how she got the injuries, E.S.

explained her boyfriend had hit her because she was not having enough sex with
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him and thought she was cheating on him. E.S. told the manager during that same

incident her boyfriend had pointed a shotgun at her and smashed a mirror and

window on her van. The manager testified that E.S. was afraid of her boyfriend.

       We agree with the district court that “[t]he only thing the posts indicate is

that [E.S.] continued to date and be subjected to physical violence by [her

boyfriend] after the trial.”   These Facebook posts are merely cumulative and

impeaching. In any event, Christensen has failed to show that admitting these

Facebook posts probably would have changed the result of the trial. The jury

considered evidence about E.S.’s abusive relationship, rejected the theory that

E.S. had a motivation to lie, and convicted Christensen. The district court did not

err in denying Christensen’s claim on this ground.

       IV. Disposition.

       For these reasons we affirm the district court’s denial of Christensen’s

application for postconviction relief.

       AFFIRMED.
