                       IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0435
                               Filed September 12, 2018


SESSIONS L. HARPER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



       Sessions Harper appeals the denial of his application for postconviction

relief. AFFIRMED.




       Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, PC, Storm

Lake, for appellant.

       Sessions L. Harper, Fort Madison, pro se.

       Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Assistant Attorney

General, for appellee State.




       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                              2


MULLINS, Judge.

          “Sessions Harper raped me, tied me up, and set my house on fire.” This

nontestimonial dying declaration1 by Holly Michael was a small piece of the

insurmountable evidence that led to Harper’s convictions of sexual abuse,

kidnapping, murder, and arson—all in the first degree. After the supreme court

affirmed Harper’s convictions on direct appeal, Harper filed an application for

postconviction relief (PCR), which was ultimately denied by the district court.

Harper appeals the denial of his PCR application. In addition to his various pro se

claims of ineffective assistance of counsel, he contends the district court erred in

concluding his trial counsel did not render ineffective assistance of counsel in

failing to object to an allegedly improper jury instruction on the crime of first-degree

kidnapping and abused its discretion in declining to admit certain evidence in the

PCR trial.

I.        Background Facts and Proceedings

          On the evening of Saturday, January 7, 2006, Holly Michael, Becky Sittig,

Ashleigh Attig, and Harper hung out at Michael’s house in Fort Dodge beginning

at around 7:00 or 8:00 p.m.2 From then until the early morning hours of January

8, the group drank alcohol, smoked marijuana, and consumed cocaine. The group

left the residence to go to a nearby bar at which they arrived around 1:00 a.m.

Video surveillance footage at the bar depicted Harper to have a shaved head and

wearing a black jacket with a hood. They drank at the bar until around 1:40 a.m.

then returned to Michael’s house, where they consumed more alcohol and drugs.


1
     See generally Harper v. State, 770 N.W.2d 316 (Iowa 2009).
2
     Michael shared the residence with her mother, Anita, who was out of town at the time.
                                               3


At some point after the group returned from the bar, Attig and Harper engaged in

sexual intercourse on the floor in Michael’s bedroom.3 Attig testified, as was

normally the case when she and Harper engaged in intercourse, Harper did not

wear a condom.

          Sittig, Attig, and Harper left Michael’s house around 4:30 a.m. and returned

to the home shared by Sittig and Attig. Sittig left the home to go to her mother’s

roughly ten minutes later. Harper left around the same time to retrieve something

from his residence, which was just around the corner. He returned a short time

later, dropped off the item he retrieved, and left again shortly thereafter. Harper

made eight phone calls from his cell phone to the Michael residence after he

departed from the party, at 4:28, 4:55, 4:58, 5:23, 5:32, 5:41, 5:42, and 6:35 a.m.

          James and Michelle Leith live in the vicinity of the Michael residence. When

James arrived home from work at around 8:00 a.m. on January 8, he saw a car he

did not recognize parked in the street near his home, “a sporty-looking, red, four-

door” car with a rear spoiler. James took a second look at the vehicle after he got

out of his car and observed it to be an Oldsmobile. At about 9:10 a.m., as Michelle

was leaving home to take her children to Sunday school, she noticed the red car

parked in the street at the end of her driveway. When she returned about twenty

minutes later, the vehicle was still there.          At this point, Michelle observed a

multicolored lei hanging from the car’s rearview mirror. The Leiths observed the

car drive away at around 9:40 a.m., but did not see who was driving it.




3
    Harper and Attig were romantically involved prior to these events. The two share a child.
                                        4


      Joey McDowell, a neighbor of the Leiths, also lives in the vicinity of the

Michael residence. At around 8:00 a.m., McDowell observed a red car with a

“wing” on the back parked on the street near her home. At about 9:30 or 9:40 a.m.,

McDowell looked out her front window and observed an African American male

with a shaved head wearing a jacket with a hoodie underneath get in the car and

drive away.

      At or around 9:45 a.m., passers-by observed Michael’s home to be on fire

and called 911. Upon their arrival, firefighters entered the home to search for any

occupants. After searching the main level, firefighters opened the basement door,

which was initially blocked with a piece of furniture, and heard screaming. In the

basement, firefighters found Michael lying face down on the floor, wrapped in a

burning comforter, with her arms and legs bound with wire.           Michael was

transported from the basement to an ambulance on the scene. When placed in

the ambulance, a paramedic poured saline on Michael to extinguish the smoldering

materials attached to her body. The paramedic observed Michael was not wearing

any clothing and had gray duct tape and brown telephone wire on her right wrist.

      When Michael arrived in the emergency room, an x-ray technician heard

Michael say, “Harper did it, Harper did it.” A respiratory therapist heard Michael

say, “Don’t let him hurt me.” Dr. Daniel Cole asked Michael what happened to her.

Michael responded Sessions Harper raped her, tied her up, and set her house on

fire. Dr. Cole asked Michael to repeat what she said, and Michael again stated

Sessions Harper raped her, tied her up, and set her house on fire. Dr. Elizabeth

Day questioned Michael if she knew who had done this to her. Michael responded,

“Sessions Harper” and specified, “He tied me up, raped me, and left me in the
                                         5


basement.” Dr. Dan Warlick heard Michael state Sessions Harper raped her, tied

her up, and set her house on fire. Due to the severity of her injuries, Michael was

airlifted to Iowa City. When Michael’s mother visited her in the hospital, Michael

mouthed the word “Sessions” over and over again from her hospital bed. Michael

suffered third- and fourth-degree burns to sixty percent of her body, some to the

bone, and her arms had to be amputated. Michael ultimately died as a result of

her injuries.

       The day after the fire, McDowell read the newspaper, which included a

written description and picture of Harper in connection with the fire at the Michael

residence. McDowell thought the person she saw with the red car parked on the

street near her home might have been Harper. McDowell approached James

Leith, and the two spoke about their observations the previous morning. As a

result of that discussion, James called the police.

       Upon investigation of the scene, it was discovered that all of the smoke

detectors in the home had been disabled. In the basement of the home, law

enforcement found charred terry cloth on the floor, a gasoline can containing a

small amount of gasoline with a charred paper towel wick sticking out of the top,

and a container that would normally contain paint thinner. Subsequent forensic

analysis of the gasoline can confirmed it contained gasoline. Testing of the other

container revealed it contained a small amount of medium petroleum product, such

as paint thinner. Michael’s mother, Anita, who owned the residence and lived in it

with Michael, testified the paint thinner was from her garage and she would never

bring it into the home when she used it. Anita also testified the gasoline can did

not belong to her and she had never seen it before.
                                        6


      The charred comforter Michael was wrapped in when she was found was

located in the middle of the basement floor. Upon examination, a special agent

with the State Fire Marshal’s Office detected a relatively strong odor of gasoline

and paint thinner on the comforter. A forensic analysis of the comforter revealed

the presence of a mixture of gasoline and a medium petroleum product, such as

paint thinner, both of which are fire accelerants or “ignitable liquids.” Near the

comforter, law enforcement found a roll of duct tape and telephone wire. The

telephone cords initially attached to the rafters of the basement ceiling had been

torn out and were dangling from the ceiling. A pair of sunglasses found in the

basement near where Michael was found were submitted to the State crime lab for

fingerprint and DNA analysis. Harper’s fingerprints and DNA were found on the

sunglasses. The gas-powered water heater in the basement had been moved to

an extent that the gas flue that would normally exhaust gas vapors from the home

was disconnected from the water heater.

      Michael’s bedroom and its contents suffered extensive fire damage. The

mattress and box spring comprising Michael’s bed were placed in front of the two

windows in Michael’s room, presumably to block any view of the fire from outside

the residence. A fire also occurred in the master bedroom on the other side of the

home. The special agent testified the fires were unrelated and had completely

separate origins, thus leading him to believe that each of the separate fires was

intentionally set. Furthermore, the gas stove in the kitchen had been tipped over,

the control knobs on the stove were in the on position, and a candle was placed

underneath the stove. All in all, the fire investigator testified there were five

separate origins of the fire—the master bedroom, Michael’s bedroom, the gasoline
                                          7


can in the basement, the comforter Michael was wrapped in, and the area of the

gas stove—all of which were intentionally set.

        Law enforcement found a used condom in Michael’s bedroom containing

Harper’s DNA on the inside and Michael’s DNA on the outside. Black zip-ties were

also found in Michael’s bedroom. Matching zip-ties were found in Harper’s home

pursuant to a search warrant. The plant manager of Harper’s employer testified

the same zip-ties were used at the business and Harper had access to them.

        Law enforcement also seized a red Oldsmobile Alero belonging to Harper’s

wife and known to be driven frequently by Harper. The seized Alero had a rear

spoiler and a Hawaiian lei hanging from the rearview mirror. Several witnesses

testified Harper was known to drive a red Alero with these characteristics. When

shown pictures of the seized car at trial, McDowell and the Leiths generally testified

it appeared to be the car that was in their neighborhood the morning of the fire.

Upon a search of the vehicle, law enforcement found documents bearing Harper’s

name.

        A number of individuals close to Harper at the time of these events testified

they were unable to reach Harper on his cell phone the morning of the fire and

thereafter. Harper did not show up for work the day after the fire and did not

provide his employer with a reason for his absence.          Harper was ultimately

apprehended by law enforcement in Des Moines in the early morning hours of

January 11. Photographs taken by law enforcement of Harper’s person depict

scratches or scarring on both of his hands and his face, an open wound on his

right knee, and scabbing on his left knee.
                                        8


      Harper was charged by trial information with first-degree sexual abuse,

kidnapping, murder, and arson. A jury found Harper guilty as charged. In June

2009, shortly after the supreme court affirmed his convictions, Harper filed a PCR

application generally alleging ineffective assistance of his trial and appellate

counsel. Over the course of the next seven and a half years, Harper specified his

ineffective-assistance claims by way of multiple supplemental or amended filings.

In February 2017, the district court denied Harper’s application. Harper appeals.

Additional facts will be set forth below as are relevant to the issues raised on

appeal.

II.   Standard of Review

      Appellate review of PCR proceedings is typically for correction of errors at

law, but where claims of ineffective assistance of counsel are forwarded, our

review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). Harper

must prove by a preponderance of the evidence that (1) his trial or appellate

counsel failed to perform an essential duty and (2) prejudice resulted. Strickland

v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116

(Iowa 2018). We “may consider either the prejudice prong or breach of duty first,

and failure to find either one will preclude relief.” State v. McNeal, 897 N.W.2d

697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

A failure to register meritless arguments does not amount to ineffective assistance

of counsel. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).

      Rulings on the admission of evidence are reviewed for an abuse of

discretion, our most deferential standard of review. State v. Dentler, 742 N.W.2d

84, 87 (Iowa 2007); see State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017).
                                            9


III.   Analysis

       A.         Pro Se Claims of Ineffective Assistance of Counsel

                  1.    Serious Injury

       The first few pro se contentions are relative to the serious-injury element of

Harper’s conviction of first-degree sexual abuse. First, Harper contends his trial

or appellate counsel was ineffective in failing to challenge the district court’s

“overbroad definition” of serious injury. Sessions acknowledges the propriety of

the court’s definition of the third element of the crime—“During the commission of

sexual abuse, the Defendant caused [the victim] a serious injury,” see Iowa Code

§ 709.2 (2006)—but challenges the following related instruction provided by the

district court:

       Concerning Element No. 3 of [first-degree sexual abuse], the serious
       injury need not occur simultaneously with the commission of the
       sexual abuse, but may precede or follow it if the injury and the sexual
       abuse occur as part of an unbroken chain of events or as part of one
       continuous series or acts connected with one another.

We find this instruction to be a correct statement of the law and conclude trial and

appellate counsel were under no duty to challenge it. See State v. Carter, 602

N.W.2d 818, 822 (Iowa 1999) (“We hold that under Iowa Code section 709.2 the

serious injury need not occur simultaneously with the commission of the sexual

abuse in order to constitute first-degree sexual abuse under Iowa Code section

709.2. It is sufficient if the serious injury precedes or follows the sexual abuse as

long as the injury and sexual abuse occur as part of an unbroken chain of events

or as part of one continuous series of acts connected with one another.”).

       Next, Harper contends trial and appellate counsel were ineffective in failing

to challenge the sufficiency of the evidence concerning the serious-injury element
                                          10


of the crime. However, this argument is premised on Harper’s erroneous challenge

to the jury instruction discussed above, as he only argues there was insufficient

evidence “that a serious injury was cause[d] during the commission of a sexual

abuse.” As noted, “the serious injury need not occur simultaneously with the

commission of the sexual abuse.”        Id.    To the extent Harper challenges the

sufficiency of the evidence to show the serious injury occurred as part of an

unbroken chain of events or as part of a continuous series of acts connected with

one another, upon our de novo review and viewing the evidence in the light most

favorable to the State and the verdict, including all reasonable inferences, we

conclude the serious-injury element was supported by substantial evidence and

trial and appellate counsel were therefore under no duty to challenge the same.

See State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (noting the evidence in

sufficiency-of-the-evidence challenges is viewed “in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence”); see also State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (“[W]e will

uphold a verdict if substantial evidence supports it. Evidence is substantial if, when

viewed in the light most favorable to the State, it can convince a rational jury that

the defendant is guilty beyond a reasonable doubt.” (citation and internal quotation

marks omitted)). Indeed, Harper appears to concede this, as he acknowledges

the “jury could find . . . the victim suffered a serious injury at sometime,” and only

argues the evidence was insufficient to show the serious injury was inflicted literally

simultaneously with the act of sexual abuse.
                                            11

               2.     Second-Degree-Kidnapping Instruction

       Next, Harper claims his trial and appellate counsel rendered ineffective

assistance in failing to object to the district court’s failure to instruct the jury on the

offense of second-degree kidnapping in addition to the offense of first-degree

kidnapping. See Iowa R. Crim. P. 2.6(3) (“In cases where the public offense

charged may include some lesser offense it is the duty of the trial court to instruct

the jury, not only as to the public offense charged but as to all lesser offenses of

which the accused might be found guilty under the indictment and upon the

evidence adduced, even though such instructions have not been requested.”).

Generally, trial courts in Iowa are required to “automatically instruct on a lesser-

included offense if the legal test is met as to a greater offense that has support in

the evidence.” State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988).

       [U]nder the legal test the lesser offense is necessarily included in the
       greater offense if it is impossible to commit the greater offense
       without also committing the lesser offense. If the lesser offense
       contains an element not required for the greater offense, the lesser
       offense cannot be included in the greater. This is because it would
       be possible in that situation to commit the greater without also having
       committed the lesser. In using this test, we look to the statutory
       elements rather than to the charge or the evidence.

Id. at 740 (citations omitted). Kidnapping in the second degree requires proof that

either “the purpose is to hold the victim for ransom” or “the kidnapper is armed with

a dangerous weapon.” Iowa Code § 710.3. Kidnapping in the first degree does

not include either of these alternatives as an element of the crime. See id. § 710.2.

As such, it is not impossible to commit first-degree kidnapping without also

committing second-degree kidnapping.             See Jeffries, 430 N.W.2d at 740.

Accordingly, the court was not required to instruct the jury on the elements of
                                        12


kidnapping in the second degree and, in turn, trial and appellate counsel were

under no duty to raise the issue.

             3.     Confinement or Removal—Sufficiency of the Evidence

      Next, Harper appears to argue trial and appellate counsel were ineffective

in failing to effectively challenge the sufficiency of the evidence concerning the

confinement or removal element of first-degree kidnapping. When assessing the

sufficiency of the evidence to support a conviction, the court views “the evidence

‘in the light most favorable to the State, including all reasonable inferences that

may be fairly drawn from the evidence.’” Ortiz, 905 N.W.2d at 180 (quoting State

v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is considered, not just

that of an inculpatory nature. See Huser, 894 N.W.2d at 490. “[W]e will uphold a

verdict if substantial evidence supports it.” Wickes, 910 N.W.2d 554, 563 (Iowa

2018). “Evidence is substantial if, ‘when viewed in the light most favorable to the

State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.’” Id. (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa

2017)). If the record contains substantial evidence to support the conviction,

counsels’ failure to raise the issue could not have been prejudicial. See State v.

Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).

      In support of this contention, Harper provides his slanted version of the

evidence and a wealth of conclusory statements in support of his position. He

provides us with no on-point legal authority to support his position other than a

passive citation to State v. Rich, in which the supreme court stated:

      [O]ur legislature . . . intended the terms “confines” and “removes” to
      require more than the confinement or removal that is an inherent
                                          13


       incident of commission of [some other crime].[4] Although no
       minimum period of confinement or distance of removal is required for
       conviction of kidnapping, the confinement or removal must definitely
       exceed that normally incidental to the commission of [the other
       crime]. Such confinement or removal must be more than slight,
       inconsequential, or an incident inherent in the [other] crime . . . so
       that it has a significance independent from [the other crime]. Such
       confinement or removal may exist because it substantially increases
       the risk of harm to the victim, significantly lessens the risk of
       detection, or significantly facilitates escape following the
       consummation of the offense.

305 N.W.2d 739, 745 (Iowa 1981) (emphasis added).

       A de novo review of the record evidence reveals the following. After leaving

the party at the Michael residence at 4:30 a.m. on January 8, Harper returned to

the home and gained entry, likely sometime after his final call to the Michael

residence at 6:35 a.m. The sequence of events that occurred in the home as

provided by Michael was that Harper raped her, tied her up, and then set the house

on fire. The fact that Michael’s jeans and the used condom containing both

Michael’s and Harper’s DNA were found in Michael’s bedroom indicates the sexual

assault occurred in Michael’s bedroom. The act of tying Michael up occurred

thereafter in the basement of the home, an area more secluded than the main floor,

as is evidenced by the fact that Michael was bound with telephone wire and duct

tape, both of which were found in the basement, the telephone wire having been

torn from the beams in the ceiling of the basement. Harper then engaged in

several deliberate steps relative to starting the fire, concealing its detection, and

facilitating his escape. Of course, it would be impossible to determine from the




4
 See State v. Misner, 410 N.W.2d 216, 223 (Iowa 1987) (concluding “the Rich principles
prevent kidnapping charges from being prosecuted” in cases “in which a person is moved
or confined wholly as part of a murder, sexual abuse, or other crime” (emphasis added)).
                                        14


evidence in what order the steps were taken, but the evidence reveals the following

steps were taken by Harper while Michael was bound and confined in the

basement: (1) disabling the smoke detectors in the home; (2) retrieving the

gasoline can that was foreign to the home; (3) retrieving the petroleum product

from the garage of the home; (4) wrapping Michael in the comforter; (5) separately

pouring gasoline and the petroleum product on the comforter; (6) igniting the

comforter; (7) inserting a paper towel wick in the gasoline can and lighting the end

to create a delayed explosion; (8) dislodging the gas flue on the gas-powered water

heater in the basement; (9) placing a piece of furniture in front of the basement

door after he finished his activities in the basement; (10) positioning the mattress

and box spring in Michael’s bedroom in front of the bedroom windows; (11)

intentionally starting an independent fire in Michael’s bedroom; (12) intentionally

starting an independent fire in the master bedroom; and (13) overturning the gas

stove in the kitchen, turning the control knobs to the on position, and placing a

candle under the stove. Harper then left the Michael residence around 9:30 a.m.,

got into the nearby Oldsmobile Alero, and left the area. Harper then left Fort Dodge

and was in Des Moines by mid-day.

       Although a majority of the steps taken by Harper were relative to starting

the fires that resulted in Michael’s death, some of the steps taken were aimed at

decreasing the risk of detection and facilitating Harper’s escape. For example,

after the sexual assault, Harper moved Michael to the basement of the home, a

more secluded area than the main floor, and tied her up so she could not get away.

See State v. Robinson, 859 N.W.2d 464, 479 (Iowa 2015) (noting Iowa case law

emphasizes that binding the victim usually exceeds confinement ordinarily
                                         15

incidental to another crime); State v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997)

(finding that confining a victim by ordering her to take off her clothes so she could

not leave a motel room lowered the defendant’s chance of detection and increased

the risk of harm to the victim); State v. McGrew, 515 N.W.2d 36, 40 (Iowa 1994)

(finding the secluded location the defendant used in confining the victim for the

purpose of sexual abuse “not only lessened the risk of detection for McGrew, but

also further increased the risk of harm to the victim”); State v. Folck, 325 N.W.2d

368, 371 (Iowa 1982) (“She was taken to a secluded spot where detection was

unlikely. The remoteness of the place . . . substantially increased the risk of harm

if she fought to defend herself or to escape.”); Rich, 305 N.W.2d at 745–46 (finding

sufficient evidence for confinement or removal upon the facts that defendant,

among other things, took victim to a more secluded area and bound the victim’s

hands).

       Furthermore, Michael’s confinement in the basement provided Harper with

the ability to take his time. With this ability, Harper disabled the smoke detectors

in the home, thus preventing the likelihood that someone nearby could detect the

fire before it came to full fruition; positioned the mattress and box spring in

Michael’s bedroom in front of the bedroom windows, presumably so a passer-by

could not see into that room where one of the fires was started; and placed a piece

of furniture in front of the door to the basement, obviously to further prevent

Michael’s escape or prevent someone from opening the door and detecting her

presence. Based on the totality of the circumstances, a jury could have reasonably

concluded Harper’s confinement had independent significance from the murder

because it significantly lessened the risk of detection. In addition, but for the
                                         16


confinement, Michael would not have been in the basement when the house was

set ablaze. A jury could have reasonably concluded the confinement substantially

increased the risk of harm to Michael.        Finally, Michael’s confinement in the

basement provided Harper with the ability to not only flee the scene, but to

additionally flee the area and evade apprehension by law enforcement for almost

three days.    A jury could have reasonably concluded Michael’s confinement

significantly facilitated Harper’s escape.

       Upon our de novo review, we conclude there was sufficient evidence for the

jury to reasonably conclude that Harper’s confinement of Michael substantially

increased the risk of harm to Michael, significantly decreased the risk of detection,

or significantly facilitated Harper’s escape following the consummation of the

offense.   Because the record contains substantial evidence to support the

challenged element of the kidnapping conviction, trial and appellate counsels’

failures to raise the issue did not result in prejudice to Harper. See Truesdell, 679

N.W.2d at 616. Counsel were not ineffective.

              4.     Remaining Pro Se Claims

       As to Harper’s remaining challenges relating to counsel’s competency as to

various other jury instructions, we find such arguments generally incoherent,

lacking in specificity, unconvincing, and insufficient to identify error on appeal.

Likewise, Harper’s challenge to the kidnapping statutes as in violation of

constitutional ex post facto prohibitions drastically misses the mark. As to these

remaining claims, we agree with the district court that Harper failed to prove by a

preponderance of the evidence that his counsel failed to perform an essential duty

or that he suffered prejudice.
                                         17


       B.     First-Degree-Kidnapping Marshalling Instruction

       Harper argues the district court erred in concluding his trial counsel did not

render ineffective assistance of counsel in failing to object to an allegedly improper

jury instruction on the crime of kidnapping. He specifically argues his counsel was

ineffective in failing to recognize the kidnapping instruction did not “include the

required intensifiers relative to the element of confinement and removal” and was

therefore an incorrect statement of the law. See Rich, 305 N.W.2d at 745.

              1.     Statute of Limitations

       The State argues Harper failed to raise this argument in the district court

within the statutory limitations period contained in Iowa Code section 822.3 (2009).

The State points out procedendo issued in March 2009 following Harper’s direct

appeal, Harper’s original PCR application filed in June 2009 did not raise this

specific issue, and the argument was not made in the PCR court until an amended

application was filed in August 2015, outside the three-year statute-of-limitations

period. Indeed, in a December 2015 ruling on Harper’s motion for summary

judgment, the district court entered a ruling in accordance with the State’s position

on appeal, finding the claim is “untimely and not exempt from the three year statute

of limitations.” However, the court went on to minimally address the merits of the

ineffective-assistance claim in denying Harper’s motion for summary judgment. In

the February 2017 order denying Harper’s PCR application, the district court

incorporated its December 2015 ruling on this issue by reference.

       As Harper points out, however, the State never raised the statute-of-

limitations issue as an affirmative defense in its responsive pleading to the

amended application or at any other point in time during the proceedings. Instead,
                                          18


it appears the district court applied it sua sponte. Because the statute-of-limitations

defense was not raised by the State, it should not have been applied to preclude

the claim. See, e.g., Page v. State, No. 14-1842, 2016 WL 719243, at *2 (Iowa Ct.

App. Feb. 24, 2016); Reyna v. State, No. 13-0126, 2014 WL 1234142, at *2 (Iowa

Ct. App. Mar. 26, 2014). We proceed to the merits.

              2.     Merits

       As noted, Harper contends his counsel was ineffective in failing to recognize

the kidnapping instruction did not “include the required intensifiers relative to the

element of confinement and removal” and was therefore an incorrect statement of

the law. On the element of confinement and removal, the jury in Harper’s 2007

trial was instructed as follows:

               Confinement or removal requires more than what is included
       in the commission of the crime of murder.
               A person is “confined” when their freedom to move about is
       substantially restricted by force, threat or deception. They may be
       confined either in the place where the restriction began or in a place
       to which they have been removed.
               No minimum time of confinement or distance of removal is
       required. It must be more than slight. The confinement or removal
       must have significance apart from the other crime.
               In determining whether confinement or removal exists, you
       may consider whether (1) the risk of harm to Holly Michael was
       increased, (2) the risk of detection was reduced, or (3) escape was
       made easier.

As fully quoted above, the supreme court has held:

       [O]ur legislature, in enacting section 710.1, intended the terms
       “confines” and “removes” to require more than the confinement or
       removal that is an inherent incident of commission of [some other
       crime]. Although no minimum period of confinement or distance of
       removal is required for conviction of kidnapping, the confinement or
       removal must definitely exceed that normally incidental to the
       commission of [the other crime]. Such confinement or removal must
       be more than slight, inconsequential, or an incident inherent in the
       [other] crime . . . so that it has a significance independent from sexual
                                          19


       abuse. Such confinement or removal may exist because it
       substantially increases the risk of harm to the victim, significantly
       lessens the risk of detection, or significantly facilitates escape
       following the consummation of the offense.

Rich, 305 N.W.2d at 745 (emphasis added). In support of his argument that

counsel was ineffective in failing to object to the instruction’s lack of the Rich

intensifiers—substantially and significantly—Harper relies on a concurring opinion

in State v. Robinson, 859 N.W.2d 464, 487–492 (Iowa 2015) (Wiggins, J.,

concurring specially).

       Roughly eight years after Harper’s conviction, the supreme court decided

Robinson, a case in which the defendant challenged a jury instruction nearly

identical to the one employed in Harper’s trial. See Robinson, 859 N.W.2d at 487

(Wiggins, J., concurring specially). The majority reversed Robinson’s first-degree

kidnapping charge on sufficiency-of-the-evidence grounds, viewing the jury

instructions as the law of the case. Id. at 482. One justice wrote separately and

asserted the confinement and removal instruction’s failure to include the Rich

intensifiers amounted to reversible error and a challenge to such a jury instruction

by trial counsel “was a claim worth raising.” Id. at 487, 492 (Wiggins, J., concurring

specially). On the issue of prejudice for a claim of ineffective assistance of counsel,

however, the special concurrence recognized that, notwithstanding the lack of the

intensifying language, “in some cases the evidence clearly establishes the

prerequisites for kidnapping independent of the underlying crimes.” See id. at 492.

We deem this to be one of those cases. In order to establish the prejudice prong

of an ineffective-assistance claim, a defendant is required to “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of
                                          20

the proceeding would have been different.”       Strickland, 466 U.S. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. “[T]he question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting

guilt.” Id. at 695.

       Upon our de novo review of the record, we answer that question in the

negative. Assuming without deciding trial counsel had a duty to object to the

instruction without the intensifiers, we cannot say Harper suffered prejudice. We

find no reasonable probability the jury would have returned a not-guilty verdict on

the first-degree kidnapping charge had the intensifiers been included in the

instruction. Accordingly, counsel was not ineffective in not challenging the jury

instruction for want of the Rich intensifiers.

       C.      Admission of Exhibits

        At the PCR trial, Harper requested the admission of a number of pro se

exhibits. The State objected to the admission of the exhibits on relevance grounds,

contending the exhibits were not relevant to the issues raised in the PCR

proceedings.     The district court agreed with the State.      Thereafter, Harper

attempted but was unable to coherently explain how the exhibits were relevant to

the pending PCR issues. The court stood by its ruling excluding the exhibits on

relevance grounds. We find the district court did not exercise its discretion on

grounds clearly untenable or to an extent clearly unreasonable and affirm its ruling.

IV.    Conclusion

       We affirm the denial of Harper’s PCR application.

       AFFIRMED.
