                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0159
                            Filed February 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KEVIN JACOB MUEHLENTHALER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



      Kevin Muehlenthaler appeals his convictions of three counts of sexual

exploitation by a school employee. AFFIRMED.




      Joseph R. Cahill of Cahill Law Offices, Nevada, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.




      Heard by Doyle, P.J., and Mullins and McDonald, JJ.
                                         2


MULLINS, Judge.

       Kevin Muehlenthaler appeals his convictions of three counts of sexual

exploitation by a school employee. Muehlenthaler contends his trial counsel was

ineffective in failing to object to: (1) the State’s misstatement to the jury about

Muehlenthaler’s plea; (2) testimony about Muehlenthaler’s alleged use of racially

insensitive comments; (3) the State’s questions which amounted to backdoor

hearsay; (4) expert testimony provided by a non-expert; (5) the State’s violation of

its own motion in limine; and (6) the State’s statements concerning Muehlenthaler’s

failure to testify or produce evidence. Muehlenthaler also claims the trial court

erred in admitting into evidence statements he made during a school investigation.

I.     Background Facts and Proceedings

       From the evidence presented at trial, the jury could find the following facts.

In the fall of 2013, Muehlenthaler was a part-time band instructor for the North Polk

School District. At that time, K.M. was a sixteen-year-old high school senior who

volunteered to assist Muehlenthaler with his band classes during her free periods.

Her duties included assisting with set up and lessons, providing accompaniment

on piano, grading papers, and assisting in a fundraiser. As the fall semester

continued, both began sharing personal information about themselves, including

family and home life. At some point in November, on a day K.M. was upset about

family issues, Muehlenthaler asked for permission and proceeded to hug K.M.

From that point on, Muehlenthaler would hug K.M. before she left his classroom

for the day. The relationship also included Muehlenthaler making jokes of a sexual

nature and divulging information about his sex life with his wife. Both parties then

began emailing each other. K.M. continued volunteering during the 2014 spring
                                           3


semester, including volunteering extra hours and days. This resulted in K.M.

staying past the period she volunteered for and being late to her next class.

Muehlenthaler signed off on her tardy slips.

       In either January or February 2014, Muehlenthaler invited K.M. to his house

after an evening basketball game, informing her that his wife would not be there.

On this occasion, they sat and laid on his couch with their clothes on, “spooning

and cuddling.” K.M. also met Muehlenthaler on Valentine’s Day in downtown

Ames to assist in delivering thank-you cards to businesses that had helped during

a school event. After handing out the cards, Muehlenthaler and K.M. sat in his car

and talked. On another occasion after Valentine’s Day, they met in a store parking

lot and cuddled in K.M.’s van. On this occasion, Muehlenthaler reached under

K.M.’s shirt and touched her breasts.

       Muehlenthaler and K.M. text messaged one another frequently, including

sexual content.1 At some point in February, while in his classroom, Muehlenthaler

asked K.M. if she wanted to have sex. After agreeing, Muehlenthaler and K.M.

texted their plans on when and where they planned to have sex. Muehlenthaler

and K.M. met at a local motel. K.M. waited in her car as Muehlenthaler went in to

purchase a room. On that date, someone checked in under the name of P.S., the

name of K.M.’s classmate. This individual paid in cash and there is no record of

any identification provided to the motel employee. The motel’s policy is to not

provide a room without appropriate identification; however, a front desk clerk

testified that not all staff have followed this policy. K.M. testified this person was


1
 The exact content of their text messages is not available, as the messages were deleted
and unrecoverable. K.M. testified as to the messages.
                                           4


Muehlenthaler. Muehlenthaler gave K.M. the room number after he checked in,

and they had sexual intercourse that night. K.M. identified that after Muehlenthaler

undressed, she noted that he wears an insulin pump on his right buttock,

something she could not see during the day while at school. Muehlenthaler is a

diabetic.

       Muehlenthaler and K.M. had sexual intercourse several more times over the

course of the next few months, including at Muehlenthaler’s house. Their last

sexual encounter occurred in mid-July, by which time K.M. had graduated from

high school. Muehlenthaler ended the relationship, informing K.M. that he would

not be able to be with her anymore because his wife wanted to get pregnant. He

gave her a sex toy as a break-up gift to “replace him.” At all times during the sexual

relationship, Muehlenthaler was employed as a teacher at North Polk. Several

times during the relationship, Muehlenthaler told K.M. not to tell because he would

lose his job, lose his wife, and get into trouble.

       K.M. first reported the relationship in 2016 after she began college and saw

a notice on social media that Muehlenthaler accepted a full-time position at a

different school district. She reported the relationship to her college professor, who

then made an anonymous third-party report to the principal of Muehlenthaler’s new

school. School officials from Muehlenthaler’s new district received the anonymous

report approximately two weeks after Muehlenthaler began working. The principal

and superintendent met with Muehlenthaler the morning of August 30 to inquire

about the anonymous report and asked Muehlenthaler if he had any information.

Muehlenthaler informed the officials that the report must be about his high school

helper and gave K.M.’s name. He informed the officials that he had become
                                             5


uncomfortable with the dynamic between himself and K.M. after she shared

personal information about herself and family. Muehlenthaler also indicated he

reported the situation to officials at North Polk. After the meeting, Muehlenthaler

returned to his classroom and taught for the remainder of the day. Ten minutes

before the official end of that school day, Muehlenthaler was informed he was

being placed on administrative leave pending the outcome of the school

investigation. During a formal interview on September 15, Muehlenthaler refused

to answer questions and was informed of his right to refuse to answer questions.

         K.M. eventually spoke to the superintendent herself and ultimately to the

police. She also turned over the sex toy Muehlenthaler gave her to the police. In

March 2017, Muehlenthaler was charged by trial information with four counts of

sexual exploitation by school employee, in violation of Iowa Code section

709.15(5)(a) (2013).2 Prior to the trial in October, the State filed a motion in limine

seeking to exclude any evidence of K.M.’s sexual history, which the court granted.

During the hearing on the motion in limine, Muehlenthaler’s counsel sought the

exclusion of evidence of statements made by him to school officials during their

investigation into the allegations of an inappropriate student relationship, arguing

it would violate Garrity.3 The court granted the request in part, determining that

Muehlenthaler’s statements made to school officials after he was informed he

would be placed on administrative leave were to be excluded.

         A jury found Muehlenthaler guilty as charged. Muehlenthaler filed post-trial

motions in arrest of judgment and for a new trial.              He argued there was


2
    Prior to trial, the State dismissed one count.
3
    See generally Garrity v. New Jersey, 385 U.S. 493 (1967).
                                        6


impermissible burden shifting and claimed insufficiency of the evidence. Further,

he argued the testimony of statements he made during a school investigation

violated Garrity.   The court denied both motions, finding there was sufficient

evidence to establish the elements of the offenses, no shifting of the burden of

proof, and no Garrity violation.

       The court sentenced Muehlenthaler on each count to an indefinite term of

incarceration not to exceed two years to run consecutively. His sentence also

included an order to register as a sex offender, placement on the sex offender

registry, and a ten-year special sentence pursuant to Iowa Code section 903B.2.

II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.        State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Muehlenthaler must show counsel

“failed an essential duty and that the failure resulted in prejudice.” Id. at 206

(quoting State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016)). “[C]ounsel fails his

or her essential duty by ‘perform[ing] below the standard demanded of a

reasonably competent attorney.’” Id. (quoting Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001)). We presume “the attorney performed competently” and “we

avoid second-guessing and hindsight.”          Ledezma, 626 N.W.2d at 142.

Muehlenthaler must also demonstrate “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668, 964

(1984)).
                                           7


III.   Analysis

       A.     Ineffective Assistance of Counsel

       Muehlenthaler makes several claims of ineffective assistance of counsel.

We will address each in turn.

              1.     Opening Statement

       First, Muehlenthaler contends counsel was ineffective for failing to object

and correct a prosecutor’s statement after reading the trial information to the jury.

A review of the record shows that before beginning its opening statement, the State

read the trial information against Muehlenthaler to the jury. After reading all of the

offenses charged, the State then stated, “To these charges Mr. Muehlenthaler has

entered a plea of guilty.” He contends that because his counsel failed to object or

correct this misstatement, it prejudiced the jury and he did not receive a fair trial.

       “[A] criminal conviction is not to be lightly overturned on the basis of a

prosecutor’s comments standing alone, for the statements or conduct must be

viewed in context; only by so doing can it be determined whether the prosecutor’s

conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11

(1985). “Inappropriate prosecutorial comments, standing alone, would not justify

a reviewing court to reverse a criminal conviction obtained in an otherwise fair

proceeding.” Id.

       First, after the jury was selected in this case, the court explained to the jury

the sequence of events of the trial. It instructed the jury that the attorneys would

make opening statements but those statements were not evidence. The court

explained the State would read the trial information about the offenses charged

and, again, instructed the jury that the trial information was not evidence. The
                                         8


State then gave its opening statement. Defense counsel followed with an opening

statement that ended with him saying at the end of the evidence he would be

asking the jury to deliberate and “find Kevin not guilty of each and every count.”

       After the close of the evidence, the court instructed the jury. Several jury

instructions clearly identify that the jury is the decision-making body of

Muehlenthaler’s guilt or innocence on each charge, Muehlenthaler is presumed

innocent, this presumption remained with him throughout the trial unless the

evidence established guilt beyond a reasonable doubt, and, most importantly,

Muehlenthaler pled not guilty to all charges. The instructions also reminded the

jury of the court’s earlier admonition that statements and comments by the

attorneys were not evidence and their verdict must be based upon the evidence

presented and the jury instructions.

       However, on the record before us, we cannot determine why counsel did

not object to the misstatement of his not guilty plea, and thus cannot determine

whether counsel’s performance fell below that of reasonably competent counsel.

Likewise, the record is inadequate to decide the prejudice issue. Consequently,

we preserve the claim for possible postconviction-relief proceedings.

              2.     Defendant’s past racial statements

       Muehlenthaler next contends trial counsel failed to object to testimony from

K.M. that Muehlenthaler made racially insensitive comments to her about students

at the school. Muehlenthaler claims the testimony was highly prejudicial and

inadmissible character evidence which should have resulted in counsel moving for

a mistrial.
                                          9


       A review of the record shows that during K.M.’s direct examination, after

being asked about the nature of the jokes Muehlenthaler made while joking around

with her, K.M. testified:

       And he also said some jokes that made me feel kind of
       uncomfortable, like when one of the kids who played trumpet, we
       were having a lesson, and he said that he was sad because his dad
       was moving back to Mexico, and then when he left the room he
       snickered and said that his dad was getting deported. And he also
       told me that when he was in college him and one of his friends would
       go to KFC and make fun of the black people, and generally just a lot
       of jokes that I thought were kind of really inappropriate and kind of
       immature.

Defense counsel did not object.

       Iowa Rule of Evidence 5.404(b)(1) prohibits the admission of “[e]vidence of

a crime, wrong, or other act . . . to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.” To

determine if evidence is admissible under rule 5.404(b), it must meet a three step

analysis:

              (1) the evidence must be relevant and material to a legitimate
       issue in the case other than a general propensity to commit wrongful
       acts;
              (2) there must be clear proof the individual against whom the
       evidence is offered committed the bad act or crime; and
              (3) if the first two prongs are satisfied, the court must then
       decide if [the evidence’s] probative value is substantially outweighed
       by the danger of unfair prejudice to the defendant.

State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004).

       Based upon our review of the record, we find it inadequate to address this

claim on direct appeal. We preserve this claim to allow the parties to develop the

record as to why defense counsel did not make a record on this issue and
                                         10


“as to any prejudice which may or may not have resulted from trial counsel’s

actions.” State v. Shanahan, 712 N.W.2d 121, 143 (Iowa 2006).

              3.     Failure to object to “backdoor” hearsay

       Muehlenthaler also claims trial counsel was ineffective for failing to object

to the State’s questioning of several witnesses that amounted to “backdoor”

hearsay. Further, he contends trial counsel failed to seek any curatives to the

hearsay, either by requesting an admonishment or instruction to the jury to

disregard the testimony, or by moving for a mistrial.

       A “backdoor hearsay” problem occurs when a “question and answer [does]

not produce hearsay ‘in the classic or textbook sense,’ [but] the questioning

nevertheless [is] designed to circumvent the hearsay rule and present the jury with

information from unsworn, out-of-court sources.” State v. Huser, 894 N.W.2d 472,

497 (Iowa 2017) (quoting Schaffer v. State, 721 S.W.2d 594, 597 (Tex. App.

1986)). While “the form of [a] question [does] not literally require the jury to infer

the subject matter . . . the use of the ‘don’t tell me what [the other person] said’

questioning directly after [the witness] testified about the [communication] was

designed to encourage the jury to make the connection.” Id. “The state ‘is not

permitted by means of the insinuation or innuendo of incompetent and improper

questions to plant in the minds of the jurors a prejudicial belief in the existence of

evidence which is otherwise not admissible and thereby prevent the defendant

from having a fair trial.’” Id. (quoting State v. Carey, 165 N.W.2d 27, 32 (Iowa

1969)).

       During the trial, the State did not offer the testimony of Donna Spence or

Mary Schmiltz, two school officials Muehlenthaler claimed to have spoken with
                                         11


about his concerns regarding K.M. The State did call Paula Wright, superintendent

of the school district where Muehlenthaler began teaching in 2016. During direct

examination of Wright, the State elicited the following:

               [STATE]: And you stated that he informed you that she was
       acting weird. Did he elaborate on that any further with you?
               [WRIGHT]: I asked him what “weird” meant, what that was,
       and he said that she was trying to get close to him, that she would
       share personal information with him that he was uncomfortable with.
       I asked him if he told anyone about that, and he indicated he had
       spoken with his principal Donna Spence about it.
               [STATE]: And were you—did you look into what he claimed or
       who he claimed to have told these things to?
               [WRIGHT]: Not that day, but later, yes.
               [STATE]: Were you ever able to substantiate his claims that
       he had reported inappropriate behavior to anyone at North Polk?
               [WRIGHT]: When I spoke with Donna Spence on the phone
       she didn’t indicate—
               [DEFENSE COUNSEL]: Objection, Your Honor. Hearsay.
               THE COURT: The objection’s sustained.
               [STATE]: That’s okay. Without saying what anyone told you,
       were you ever able to substantiate his claims?
               [WRIGHT]: No.
               [STATE]: And did the two of you speak about anything else at
       that time?
               [WRIGHT]: We continued with the conversation. I asked him
       if anybody else knew, if he had talked to anybody else, and he
       indicated that he’d talked to Mary Schmiltz, and I’m sorry I probably
       pronounced her name wrong, she was his mentor teacher. And I
       asked what was their advice, and he said to keep the door open and
       to keep things public, and to avoid the situation.
               [STATE]: And again, were you ever able to substantiate that
       claim he had reported to Ms. Schmiltz?
               [WRIGHT]: No.

       The defense made no other hearsay objections to Wright’s testimony and

made no motions.

       As to Wright’s testimony about Donna Spence, the State’s initial question

of “Were you ever able to substantiate his claims” was asking for a yes or no

answer. However, the witness answered with more information than what was
                                         12


asked. After the court sustained the hearsay objection, the State repeated its

question but added in “[w]ithout saying what anyone told you.” Whether this

resulted in backdoor hearsay is a close question. Thus, any analysis of counsel’s

effective assistance on this issue requires further record. We preserve this issue

for possible postconviction-relief proceedings.

       Muehlenthaler also points to other testimony given by Wright which involved

her conversation with K.M.:

              [STATE]: Okay. After you spoke with her, without saying what
       she said, did you try to verify details that you had received from
       [K.M.]?
              [WRIGHT]: After I spoke with her I did try to verify some details
       that she gave me.
              [STATE]: What did you try to verify?
              [WRIGHT]: His employment with Steve’s Mobile Music.

Wright then proceeded to testify as to the steps of verifying his employment. This

led the State to offer a printout of the webpage of Steve’s Mobile Music, which

included Muehlenthaler’s email address at this job. As to this testimony, we find

no prejudice, as K.M. had already testified about Muehlenthaler’s employment at

Steve’s and his use of an email address through this employment.

       Muehlenthaler also makes a claim of backdoor hearsay in the questioning

of Daniel Mart. During his testimony, the State elicited the following: “Q. Yes, sir.

To your knowledge, Dr. Mart, did the defendant ever make a report to the school

about problems with [K.M.]? A. Not to my knowledge.” We find his negative

testimony was not backdoor hearsay. See State v. Don, 318 N.W.2d 801, 806

(Iowa 1982); see also State v. Kern, 307 N.W.2d 22, 26 (Iowa 1981).
                                        13

             4.     Bolster credibility of complainant

      Muehlenthaler also argues his trial counsel was ineffective in failing to

object to backdoor hearsay, which he contends was elicited to bolster K.M.’s

credibility. He points to two witness exchanges with Wright and Detective Suzanne

Owens, the lead investigator in the case. During the State’s direct examination of

Wright, the following testimony was offered:

            [STATE]: And without again saying what she told you, were
      you able to get more details about the situation that occurred?
            [WRIGHT]: Yes. I received quite a few details.
            [STATE]: Each of the three times that you spoke with [K.M.],
      was she consistent in her story and the details?
            [WRIGHT]: Yes.

During Detective Owen’s direct examination, the following testimony was offered:

             [STATE]: Detective Owens, during the course of your
      investigation, how many opportunities did you have to speak with
      [K.M.]?
             [DETECTIVE OWENS]: I think I spoke to her several times.
      Most—after the first interview, most of them were just short phone
      calls.
             [STATE]: You indicated to us you also had the opportunity to
      review a statement she had typewritten; is that correct?
             [DETECTIVE OWENS]: Yes.
             [STATE]: Did you review any of the statements that she had
      provided to the school?
             [DETECTIVE OWENS]: Yes.
             [STATE]: During the course of your investigation, was [K.M.]’s
      statements consistent?
             [DETECTIVE OWENS]: Yes.

      Counsel should be given an opportunity to respond. This issue is preserved

for possible postconviction-relief proceedings.

             5.     DNA evidence

      Muehlenthaler also claims his counsel failed to object to expert testimony

provided by a non-expert.      He contends Detective Owens provided expert
                                       14


testimony about the characteristics and destructibility of blood and DNA evidence

when she was not an expert in the field of DNA or blood evidence. The State

contends the detective’s eighteen years of experience in law enforcement,

including ten years as a detective, her work with DNA in many sexual abuse and

assault investigations, and her training qualify her to testify about factors she

considered in determining whether or not to attempt to collect evidence.

      Detective Owens testified on direct examination by the State that in the

course of her investigation of the allegations against Muehlenthaler, she did not

believe she would find any DNA evidence in Muehlenthaler’s house given the

amount of time, two to three years, since K.M. alleged sexual acts between her

and Muehlenthaler occurred in the house. She testified during the defense’s cross-

examination that she did not try to find any of Muehlenthaler’s DNA on a sex toy

provided by K.M. as an alleged gift from Muehlenthaler. She further testified that

she received information in her investigation about K.M. bleeding on

Muehlenthaler’s couch while on her period but did not seek a search warrant to

look for such evidence. Defense counsel asked:

      Knowing that there might possibly be blood DNA, which is not easily
      destroyed, did you when you got a search warrant for the
      Muehlenthalers’ home have specialists come in from either your
      department or the DCI to at least look and see if there was any
      evidence to corroborate her story?

Detective Owens responded to this question with “no.” On redirect, Detective

Owens testified she worked specifically with DNA many times over her years in

law enforcement and that it can be destroyed with the difficulty of destruction

depending on the situation. The State then elicited testimony about different ways

DNA could be destroyed, including cleaning products, the weather, and by touch.
                                          15


Detective Owens then clarified her earlier testimony that it was possible DNA could

have been found on the couch but she did not know whether she would find it if

K.M. had wiped it up immediately. Further she testified that based upon her

training and experience, wiping up DNA could destroy it.

       Expert testimony is permitted if it consists of “scientific, technical, or other

specialized knowledge [which] will help the trier of fact to understand the evidence

or to determine a fact in issue.” Iowa R. Civ. P. 5.702. “[K]nowledge, skill,

experience, training, or education” may qualify a witness as an expert. Id. There

is “no precise rule [that] governs how a witness may acquire the requisite

qualifications.” State v. Belken, 633 N.W.2d 786, 800 (Iowa 2001). The supreme

court has adhered “to a liberal view on the admissibility of expert testimony.”

Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997).

       No DNA was actually tested in this case, and the State’s case against

Muehlenthaler did not rest on any DNA evidence implicating him.               Further,

Muehlenthaler’s counsel’s cross-examination of Detective Owens sought to

undermine the police investigation and highlight that the detective failed to seek

out all avenues of evidence as to multiple issues, including following up with

questions about the couch, the sex toy, and even with the P.S. individual identified

as the person who checked into the hotel. With regard to the DNA evidence,

defense counsel accomplished this by getting Detective Owens to admit there

could have been evidence on the couch K.M. described but she did not have it

tested.   The State was entitled to redirect examination of the detective to

rehabilitate the witness. The State’s examination was properly within the scope of

the subject matter addressed by the defense cross-examination. To the extent her
                                         16


testimony might be considered expert testimony, it was based on her training and

experience and was limited in scope to respond to the defense’s cross-

examination. Her testimony was admissible but subject to challenge as to the

weight to be accorded to the testimony. Counsel was not ineffective in failing to

challenge expert testimony.

              6.     Violation of motion in limine

       Muehlenthaler also contends the State violated its own motion in limine

prohibiting both parties from asking K.M. about any other sexual partners. Before

the trial started, the court ruled on a number of motions in limine. In the State’s

motion, it requested that any evidence regarding K.M.’s past sexual history or other

sexual partners be prohibited. The court granted the State’s motion “to the extent

that unless we have a hearing outside the presence of the jury, the parties are

prohibited from asking the alleged victim about other sexual partners and sexually

transmitted diseases.” During the defense’s opening statement, defense counsel

referred to P.S. and related to the jury that a person checked into a motel under

that name on the night K.M. alleged she met and had sex with Muehlenthaler at

the motel. He explained that P.S. was K.M.’s classmate. During both direct and

cross-examination of K.M., the State and defense asked who P.S. was and how

K.M. knew him. On re-cross, the State asked:

              [STATE]: [K.M.], you were asked a moment ago too about
       [P.S.]. [Defense Counsel] asked you about him being a track star
       and well known in the school. Was he really well known?
              [K.M.]: I—
              [DEFENSE COUNSEL]: I guess objection, Your Honor. Calls
       for speculation.
              THE COURT: It’s overruled.
                                          17


             [K.M.]: I—I don’t know. I—I remember his name and I
      remember what he looked like, but I wasn’t friends with him, and I
      don’t—I can’t say how well known he was, I guess.
             [STATE]: Did you ever meet him anywhere to go have sex
      with him?
             [K.M.]: No.
             [STATE]: Did you ever have sex with P.S.?
             [K.M.]: Not that I remember.

      We find the record is inadequate for us to resolve the claim on direct appeal

and preserve this claim for possible postconviction-relief proceedings.

             7.     Comments on the defendant’s failure to testify

      Muehlenthaler also asserts the State made improper comments in its

closing argument on his failure to testify or produce evidence during the trial. He

contends the comments by the State implied he should have called witnesses to

rebut the State’s assertions and thus the comments amounted to a shifting of the

burden of proof onto him. The record reflects that during closing argument, the

State argued:

      So now we’re going to go back to [K.M.] trusted him. She talked
      about all of these things. In a normal relationship, ladies and
      gentlemen, this teacher who didn’t have a counselling certificate,
      who didn’t have knowledge, who didn’t have training, who was only
      part-time could have directed this young woman to a counselor, to a
      therapist, could have picked up the phone and called her parents.
      Did you hear of any of that happening? You didn’t.

Muehlenthaler’s counsel did not object.

      It is the State who “bears the burden of proof in criminal cases.” State v.

Hanes, 790 N.W.2d 545, 556 (Iowa 2010). The State may not “attempt to shift the

burden to the defense to call the witnesses or to suggest the jury could infer from

the defense’s failure to call the witnesses that they would not have said anything

helpful to the defense.” Id. at 557. Further, the “federal constitution prohibits a
                                           18


prosecutor from commenting on a defendant’s failure to testify in his or her own

behalf.” State v. Bishop, 387 N.W.2d 554, 562 (Iowa 1986). The State may not

make either direct or indirect comments on a defendant’s silence. Id.

       To establish error, a “defendant must show (1) the prosecutor’s conduct or

remarks were improper, and (2) this misconduct prejudiced defendant’s substantial

rights causing the defendant to be deprived of a fair trial.” Id. at 562–63. “To

determine whether the [State]’s remarks were improper, we consider whether ‘the

prosecutor manifestly intended to refer to the defendant’s silence, or [whether] the

jury would “naturally and necessarily” interpret the statement to be a reference to

the defendant’s silence.’” Id. at 563 (quoting State v. Hutchison, 341 N.W.2d 33,

39 (Iowa 1983)). Further, “we will not find that the prosecutor manifestly intended

to comment on defendant’s right to remain silent when an equally plausible

explanation exists for [the State’s] comments.” Id. However, “[a] prosecutor may

properly comment upon the defendant’s failure to present exculpatory evidence,

so long as it is not phrased to call attention to the defendant’s own failure to testify.”

Id. (quoting United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984)).

       On our review, we find the State’s statement advanced its arguments that

Muehlenthaler did not report or direct K.M. to speak with anyone about the issues

she shared regarding her family and self-esteem issues, which he claimed he had

reported to school officials. We do not find the statements were improper as the

remarks did not shift the burden of proof or refer to Muehlenthaler’s decision not

to testify. Therefore, counsel was not ineffective for not objecting.
                                        19

       B.     Garrity violation

       Muehlenthaler finally claims the district court erred in allowing statements

he made during a meeting with school officials on August 30, 2016, based upon a

Garrity violation. He argues the administration’s investigation began on August

29, therefore any statements made during and after the August 30 meeting were

inadmissible as he was not warned about the consequences of his answers and

was not told he had a choice on whether or not to answer. Because of the

constitutional nature of this claim, our review is de novo. See State v. Neiderbach,

837 N.W.2d 180, 190 (Iowa 2013).

       During the hearing on the motion in limine, the defense moved to exclude

all statements he made to school officials before he was given a Garrity warning

on September 15. The court initially determined that any conversations between

Muehlenthaler and school administration after September 15 were inadmissible

under Garrity. However, after further discussion with counsel, the court clarified

its ruling and held that the determining date for the admissibility of conversations

between Muehlenthaler and school administration would be when Muehlenthaler

was informed he was being placed on administrative leave.

       During Wright’s testimony, she testified she received a report during the

evening of August 29 from the high school principal of an alleged inappropriate

relationship Muehlenthaler had at his previous school. She characterized the

meeting as informal and she went into the meeting without much information as

the allegation was anonymous. She testified that she set up the meeting with

Muehlenthaler and the principal for August 30 during the second period of the

school day in the principal’s office. She further testified that at the beginning of
                                         20


this meeting, she informed Muehlenthaler of the allegation and asked if he knew

anything about it.     She identified that because the allegation was initially

anonymous, it did not have much credibility at that point and so the meeting was

about just finding out what Muehlenthaler might know about the situation. At that

point, Muehlenthaler offered that it must have been “his high school helper”

because she tried to “get close to him, and it was really weird situation, and he was

uncomfortable with the situation.” Muehlenthaler named the student helper and

told the officials that he had reported the situation to two school officials. She

testified to the follow-up questions she asked in response to Muehlenthaler’s

statements and that during their conversation, Muehlenthaler did not act surprised

about the allegation and was not upset. At the end of the meeting, Muehlenthaler

went back and taught his classes for the remainder of the day. At approximately

3:10 p.m., ten minutes before the end of the school day, Muehlenthaler was

informed he was being placed on paid administrative leave and was sent home

pending the outcome of the inquiry. Wright testified that she considered the

investigation began on August 31, after K.M. called and the complaint was no

longer anonymous.

       The Fifth Amendment to the United States Constitution provides: “No

person . . . shall be compelled in any criminal case to be a witness against himself.”

This amendment “applies to the State of Iowa through the Due Process Clause of

the Fourteenth Amendment to the United States Constitution.” State v. Iowa Dist.

Ct., 801 N.W.2d 513, 517 (Iowa 2011). As a general rule, compulsion is present

when the State threatens to inflict “potent sanctions” unless the constitutional
                                           21


privilege is waived or threatens to impose “substantial penalties” because a person

elects to exercise that privilege. Id. at 518.

       In Garrity, that threat was the loss of employment as police officers were

investigated for allegedly fixing traffic tickets. 385 U.S. at 494. Before the officers

were questioned, each was warned that anything they might say could be used

against them in possible criminal proceedings and that they had the right to remain

silent if their disclosure would tend to incriminate them, but if they refused to

answer, they would be subject to removal from their jobs.             Id.   The officers

subsequently answered questions without a grant of immunity and some of their

responses to the investigator were used against them in subsequent criminal

proceedings. Id. at 495. The Supreme Court noted:

       The choice given petitioners was either to forfeit their jobs or to
       incriminate themselves. The option to lose their means of livelihood
       or to pay the penalty of self-incrimination is the antithesis of free
       choice to speak out or to remain silent. That practice, like
       interrogation practices we reviewed in Miranda v. State of Arizona, is
       “likely to exert such pressure upon an individual as to disable him
       from making a free and rational choice.” We think the statements
       were infected by the coercion inherent in this scheme of questioning
       and cannot be sustained as voluntary under our prior decisions
               ....
               We conclude that policemen, like teachers and lawyers, are
       not relegated to a watered-down version of constitutional rights. . . .
       We now hold the protection of the individual under the Fourteenth
       Amendment against coerced statements prohibits use in subsequent
       criminal proceedings of statements obtained under threat of removal
       from office.

Id. at 497–98, 500 (citations omitted). Penalties are “not restricted to fine or

imprisonment.” Spevack v. Klein, 385 U.S. 511, 515 (1967). “It means . . . the

imposition of any sanction which makes assertion of the Fifth Amendment privilege

‘costly.’” Id. (quoting Griffin v. California, 380 U.S. 609 (1965)). “The threat of [loss
                                          22


of licensure] and the loss of professional standing, professional reputation, and of

livelihood are powerful forms of compulsion to make a [teacher] relinquish the

privilege.” Id. at 516.

       Here, the record does not suggest that Muehlenthaler spoke with school

officials on August 30 based upon a belief that his employment was at risk unless

he gave a statement.         The meeting during which Wright inquired about the

allegation was informal. Additionally, she testified that the allegation initially had

little credibility since it was anonymous at that point and because she had little

information, her initial inquiry was void of detail. Her subsequent questions to

Muehlenthaler were based upon his voluntary responses.            Further, after the

meeting concluded, Muehlenthaler was allowed to return to teach the remainder

of the day. School officials informed Muehlenthaler of his administrative leave near

the end of the school day, not during or immediately following the morning meeting.

We find no Garrity violation occurred as the “record before us contains no proof of

threatened sanctions, direct or implied” during the August 30 meeting. State v.

Trigon, Inc., 657 N.W.2d 441, 446 (Iowa 2003).

IV.    Conclusion

       We find two of Muehlenthaler’s four claims were not impermissible backdoor

hearsay therefore defense counsel was not ineffective for failing to object. We

also find the State was entitled to redirect examination of a police detective on

DNA evidence and the examination was properly within the scope of the defense’s

cross-examination.        Further, to the extent her testimony might be considered

expert testimony, it was based on her training and experience and was limited in

scope, therefore defense counsel was not ineffective for failing to challenge expert
                                         23


testimony. We also find the State’s statements did not shift the burden of proof to

Muehlenthaler or refer to his decision not to testify, therefore his trial counsel was

not ineffective for failing to object. We preserve the remainder of Muehlenthaler’s

claims of ineffective assistance of counsel as we find the record inadequate to

address the issues. We find no Garrity violation.

       AFFIRMED.
