                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1780
                               Filed August 5, 2020


VINCENT DUNCAN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Tama County, Patrick R. Grady,

Judge.



      Duncan appeals the denial of his application for postconviction relief.

AFFIRMED.




      Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, West Des Moines,

until withdrawal, and then Allan Richards, Tama, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



      Considered by Bower, C.J., Ahlers, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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BOWER, Chief Judge.

       Vincent Duncan appeals the denial of his application for postconviction relief

(PCR). Because he failed to establish his ineffective-assistance-of-counsel claim,

we affirm.

       In 2014, after a bench trial, Vincent Duncan was convicted of second-

degree sexual assault, lascivious acts with a child, and assault with intent to

commit sexual abuse.

       On appeal, this court rejected Duncan’s claim that insufficient evidence

supported the convictions. State v. Duncan, No. 14-0073, 2015 WL 1546433, at *1

(Iowa Ct. App. Apr. 8, 2015) (“[A]s the district court found, the child was the first

person to raise the issue of sexual contact with Duncan, she ‘consistently’

described the sex act in a statement to a child protective worker and in her trial

testimony, she ‘corrected’ the worker when the worker identified a different person

as the perpetrator, she identified the defendant as the perpetrator at trial, she

‘made no other allegations of contact, sexual, assaultive, or otherwise, against’

Duncan, and ‘at no point’ did she recant her statements.”).

       In this PCR action, Duncan asserts trial counsel provided ineffective

assistance by failing to investigate or consult experts about Duncan’s inability to

maintain an erection and lack of libido due to prostate cancer and failing to call his

ex-wife to confirm his erectile dysfunction. The district court denied Duncan’s PCR

application, finding:

       Duncan has fallen far short of carrying his burden to show his
       attorney’s representation fell below the range of constitutional
       adequacy. [Trial counsel] investigated the case, focused on the
       theory that he thought in his experience was his best defense and
       followed through with it. He successfully kept adverse expert
       testimony out of the trial record and rejected a defense, lack of sexual
       potency, that could have backfired on Duncan. This court concludes
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       that [trial counsel] did not violate any fundamental duty to Duncan
       and that any lack of success of his trial strategy was more a function
       of the difficult task facing him rather than a lack of diligence.

       Duncan appeals.

       We generally review PCR proceedings “for correction of errors at law.”

Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018). However, constitutional

claims such as ineffective assistance of counsel are reviewed de novo. See id.

       “In order to support a claim of ineffective assistance of counsel, a [claimant]

must show (1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020); see also Strickland

v. Washington, 466 U.S. 668, 687–88 (1984). “Both elements must be proven by

a preponderance of the evidence.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). But if either prong is lacking, we need not address both. Id.

       “To establish the first prong, the applicant must demonstrate the attorney

performed below the standard demanded of a reasonably competent attorney.” Id.

“Miscalculated trial strategies and mere mistakes in judgment normally do not rise

to the level of ineffective assistance of counsel.” Id. at 143. “The crux of the

prejudice component rests on whether the [applicant] has shown ‘that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Kuhse, 937 N.W.2d at 628

(quoting Strickland, 466 U.S. at 694).

       Defense counsel considered and rejected a strategy of exploring Duncan’s

erectile dysfunction with his former wife, testifying:

       We had a discussion about his wanting to focus on an issue
       concerning prostate. He brought up an issue regarding prostate
       cancer shortly before the trial. He wanted to talk about his wife and
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       his sex life to the court, to the jury and to the court. I thought that
       would be a rather improvident strategy.
                Q. And why is that? A. I didn’t think that a jury or a court would
       find it tasteful talking about the sex life or lack of sex life against a
       husband and a wife in the context of a child sex abuse case, number
       one.
                Number two, the crux of what Mr. Duncan wanted to talk about
       was his inability to either obtain or maintain an erection, like that was
       a reason he would not abuse a child. I didn’t think that was going to
       gain him any points with the jury or the court.

Duncan argues this was not a reasonable strategy. We disagree. See In re E.H.

III, 578 N.W.2d 243, 248 (Iowa 1998) (noting accused’s physical incapability of an

erection “does not eliminate the possibility” sexual abuse occurred).

       The State accused Duncan of putting his penis in a child’s mouth. Any

expert or lay evidence about Duncan’s inability to have an erection would not have

made the facts of the crime more or less probable. Duncan waived a jury trial.

After a bench trial, the fact finder wrote a detailed and thoughtful ruling, found the

complaining witness’s testimony credible, found Duncan’s testimony “inconsistent

with that of other witnesses and even himself,” and determined Duncan “performed

a sex act with [the child] by placing his penis into her mouth.”

       In an amended and substituted findings of fact, conclusions of law, and

verdict, the district court found Duncan’s “lack of ability to achieve an erection due

to medical issues, if the same is even true, does not bear upon whether [Duncan]

committed the act of placing his penis into [the child]’s mouth for his own sexual

gratification.” We agree with the PCR court Duncan has failed to prove trial

counsel failed to perform an essential duty. We affirm the denial of his PCR

application.

       AFFIRMED.
