                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1769
                            Filed February 20, 2019


LEROY DEAN HAINES,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



      The applicant appeals the denial of his application for postconviction relief.

AFFIRMED.




      Thomas Hurd of Glazebrook, Greenberg & Hurd, LLP, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
                                         2


POTTERFIELD, Presiding Judge.

       LeRoy Haines appeals the denial of his second application for

postconviction relief (PCR).

       In 1999, Haines was charged with two counts of sexual abuse in the second

degree—one count relating to A.H. and one count relating to S.H. At his bench

trial, Haines did not dispute any of the State’s evidence that the sex acts occurred;

rather, he based his defense on a claim of insanity. The district court made the

following findings:

               On or about April 21, 1999, [the mother of A.H. and S.H.] first
       learned of improper contact between [Haines] and [the children]. . . .
       [The mother] asked [A.H.] about that incident and [A.H.] confirmed
       what [the mother’s] father had told [the mother]. [The mother] then
       confronted [Haines] and he admitted that he had both “french kissed”
       [A.H.] and had touched [S.H.’s] private parts. [The mother] became
       enraged, slapped [Haines] and then called the police.
               Two police officers responded to her call: Officer Trent Olson
       and Lieutenant Dennis Memka.
               ....
               [Haines] was using the telephone when Memka and Olson
       approached him. They told him to put the phone down which he did.
       During the initial questioning, [Haines] admitted that during the
       previous month and a half he had sexual contact with [A.H. and S.H.]
       He admitted that he had kissed both of the girls, kissed their “boobs,”
       rubbed their vaginas and butts and had inserted his fingers into their
       vaginas. He also told the police officers that the girls had kissed his
       penis. [Haines] was immediately taken to the Law Enforcement
       Center in Fort Dodge where a more formal interview was
       conducted. . . .
               ....
               [Haines] stated during the interview that he had found [A.H.,
       S.H., and a third child] engaged in sexual exploration. Consequently,
       he did what he did to the girls as punishment and by way of
       encouraging them not to engage in that type of activity in the
       future. . . .
               On April 27, 1999 Dr. Dan Cole conducted a culposcopic
       exam on [A.H.] and [S.H.] Dr. Cole has been a family practitioner for
       twenty-six years and has conducted culposcopic examinations for
       eight or nine years. He is certified in the use of the machine, and
       has done over 800 such exams.
                                            3


              Dr. Cole testified that [A.H.] had a tear in her hymen that had
       occurred within the past week to ten days. She had an older injury
       in the vaginal area as well. He stated that usually the only reason
       for tears such as [A.H.’s] is a sexual assault of some type.
              With respect to [S.H.], Dr. Cole testified that she had two older
       tears in her hymen and had a newer tear that had occurred within a
       week or two of his examination. He testified that those tears were
       caused by assault.
              According to Dr. Cole, both girls’ injuries were the result of
       penetration, partial penetration or attempted penetration.
              Both of the victims testified that [Haines] had engaged in
       sexual conduct with them on several occasions. Each of the girls
       graphically described incidents of inappropriate touching that had
       been visited upon them by [Haines], and each described the touching
       as being painful. Those episodes were supported by the findings of
       Dr. Cole.

       The court concluded Haines had not met his burden to establish his insanity

defense and convicted Haines of both charges.              He was sentenced to two

consecutive terms of not more than twenty-five years.

       Haines filed the PCR application at issue in 2016.1 He asserted the State

had committed a Brady violation2 by failing to disclose exculpatory evidence and

statements made by A.H. during the course of the underlying proceedings and that

the nondisclosure prejudiced him.3 Haines’s claim is based upon an anatomical

drawing; Haines asserts A.H. was asked during trial preparation with the county



1
   The PCR application at issue is Haines’s second PCR application. Haines directly
appealed his convictions, arguing trial counsel provided ineffective assistance. We found
Haines’s claim to be without merit and affirmed his convictions. See State v. Haines, No.
01-1236, 2002 WL 31525763, at *2 (Iowa Ct. App. Nov. 15, 2002). Additionally, Haines
filed an application for PCR in 2004, which the PCR court denied. We affirmed the PCR
court. See Haines v. State, No. 05-0656, 2006 WL 1409099, at *1 (Iowa Ct. App. May 24,
2006).
2
  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding failure of prosecution to disclose
evidence that may be favorable to the accused is a violation of the Due Process Clause
of the Fourteenth Amendment).
3
   Haines also raised a number of issues pro se. The court found those claims were
untimely and dismissed them pursuant to the statute of limitations. Haines does not
challenge on appeal the court’s ruling as to his pro se claims.
                                           4


attorney to place a mark on the drawing that corresponded to where Haines had

touched her. He argues she made no mark, which indicates Haines did not touch

her, and that the State failed to turn over the unmarked drawing before trial.4

       A trial on the merits of Haines’s second PCR application took place in 2017.

According to their testimony and the evidence introduced at trial, neither Haines’s

trial attorney nor his attorney from his first PCR action ever received a blank

drawing from the State.

       In its written ruling, the PCR court denied Haines’ application for PCR. The

court did not explicitly consider whether Haines’s evidence that the State failed to

disclose the blank drawing met the ground-of-fact exception. See, e.g., State v.

Harrington, 659 N.W.2d 509, 520 (Iowa 2003) (requiring the applicant to prove “the

alleged ground of fact could not have been raised earlier . . . [and] a nexus between

the asserted ground of fact and the challenged conviction” for the exception to

apply). Instead, the court proceeded directly to the merits of whether Haines could

establish a Brady violation.

       The court’s ruling on a statute-of-limitations defense, such as whether an

exception applies, is reviewed for correction of errors at law. See id. at 519. “[W]e

employ a de novo review of the court’s ruling on the asserted Brady violation.” Id.

       We first consider whether Haines’s claim survives the statute of limitations.

See Schmidt v. State, 909 N.W.2d 778, 799 (Iowa 2018) (“[W]e do not reach the

merits of a claim based on a new ground of fact in deciding whether the exception




4
 As Haines recognizes, the alleged error relates only to his conviction for second-degree
sexual abuse involving A.H.—not the conviction related to sexual acts perpetrated upon
S.H.
                                             5


to the three-year statute of limitation applies.”). Because the blank document was

not in the file of Haines’s trial attorney or his first PCR attorney,5 we agree that the

issue could not have been raised within the applicable period. See id. Additionally,

assuming the blank document was a result of A.H.’s failure to make a mark on the

drawing when asked by the county attorney to mark where Haines touched her,

the evidence also meets the nexus requirement. See id. (“[A] ground of fact is

‘relevant’ if it is the type of fact ‘that has the potential to qualify as material evidence

for purposes of a substantive claim under section 822.2.’” (citation omitted)). In

determining whether the exception to the statute of limitations applies, we do not

determine the ultimate value of the evidence claimed by Haines; we focus on

whether the evidence “has the potential to qualify as material evidence that

probably would have changed the outcome” of Haines’s case. Id.

       Because the evidence of the blank drawing could not have been raised

during the applicable time period and there is a nexus between the evidence and

Haines’s conviction for sexual abuse in the second degree as it relates to A.H.,

Haines’s claim survives the statute of limitations.

       Next we must consider whether Haines can prove a violation of due

process. In order to do so, Haines has the burden to establish “(1) the prosecution

suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the

evidence was material to the issue of guilt.” Harrington, 659 N.W.2d at 521–22




5
  There was some question before the PCR court whether the blank document was its
own document or whether it was a copy of the exhibit created at trial when A.H. was asked
to mark the anatomical drawing where A.H.’s crayon markings failed to show up. While
that question is ultimately one for the trier of fact to determine, it was undisputed that
neither Haines’s trial attorney nor his first PCR attorney were aware of the blank drawing.
                                         6


(citation omitted). In order to be successful, Haines must establish each of the

three elements. See id.

       The PCR court considered the first element and concluded Haines could

not establish the State suppressed evidence. The court stated:

       At this trial, the State cross-examined Mr. Haines’ counsel from the
       underlying trial about the “suppressed evidence” and whether he had
       seen the particular drawing in question, showing the front of a young
       girl, during his representation of Mr. Haines. The State then offered
       State’s Exhibit A, which was an original exhibit admitted at the
       underlying trial showing the front of a young girl with orange crayon
       markings. When viewed together, both aforementioned exhibits
       appear to actually be the same drawing, only the one offered by
       [Haines] looks to be a faded grayscale copy.

While it is possible the blank drawing offered by Haines is just a poor copy of the

original exhibit completed by A.H. during trial, we have no evidence in the record

to support that determination. We agree the anatomical figure is the same, but as

both would have been supplied by the county attorney’s office, that does nothing

to convince us the blank drawing is just a poor copy of the trial exhibit. There are

otherwise no markings on the blank drawing that link the two versions.

       However, we agree with the PCR court that Haines’s due process claim

fails. Contrary to Haines’s assertion, a blank drawing, without any context, is not

favorable to Haines. He argues that A.H. was asked to mark the drawing where

Haines touched her and then did not make any markings, but nothing in the record

supports this assertion. At the PCR hearing, the county attorney who prosecuted

the underlying case testified it was generally her practice at that time to meet with

alleged victims of sexual abuse before trial, and Haines’s second PCR attorney

referenced a bill from the guardian ad litem (GAL) that indicated the GAL was

present with the prosecuting attorney and the children at five pretrial meetings.
                                         7


Additionally, the county attorney testified she would “sometimes” have young

children execute an anatomical drawing in a pre-trial meeting before she asked

them to do so while testifying at trial. But there was no indication A.H. was asked

to do so here, or that if she was asked, she specifically chose not to mark the

drawing as an indication she had not been touched by Haines.

       And we cannot say the evidence of the blank drawing was material to the

issue of guilt. In contrast to Harrington, where the defendant maintained his

innocence throughout and the prosecution failed to disclose police reports

identifying an alternative suspect, Haines never denied he perpetrated sexual acts

upon A.H. 659 N.W.2d at 523. Rather, he based his defense on a claim of insanity,

which the existence of the blank drawing does not bolster. Now on appeal, he

argues that his entire defense strategy would have changed if he knew this

exculpatory evidence existed, but even if it had, Haines cannot establish that “there

is a reasonable probability that, had the [blank drawing] been disclosed, the result

of the proceeding would have been different. Id. (citation omitted). Even if Haines

had chosen to rebut the State’s allegations based upon the evidence of the blank

document, our confidence in the court’s verdict is not undermined. See Strickler

v. Greene, 527 U.S. 263, 290 (1999) (“[T]he materiality inquiry is not just a matter

of determining whether, after discounting the inculpatory evidence in light of the

undisclosed evidence, the remaining evidence is sufficient to support the

[factfinder’s] conclusions. Rather, the question is whether ‘the favorable evidence

could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict.’” (citation omitted)).       Here, there was

testimony from a number of witnesses that Haines had admitted committing sexual
                                          8


acts upon A.H., the doctor testified about physical evidence that corroborated the

perpetration of sexual acts, and A.H. testified at trial that such acts occurred.

       Haines’s claim regarding an alleged Brady violation fails. We affirm.

       AFFIRMED.
