                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1976
                             Filed February 8, 2017


ERIC EARL HOUK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Taylor County, Dustria A. Relph,

Judge.



      Eric Houk appeals the district court’s denial of his postconviction relief

claims. AFFIRMED.




      Stephen P. Dowil of Booth Law Firm, Osceola, for appellant.

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

Attorney General, for appellee State.




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


VAITHESWARAN, Presiding Judge.

      A jury found Eric Houk guilty of first-degree kidnapping, second-degree

arson, and three counts of third-degree sexual abuse, in connection with the

confinement, removal, and sexual assault of a young woman, M.F., and the

subsequent destruction of evidence.             This court conditionally affirmed his

conviction. State v. Houk, No. 08-2067, 2010 WL 1052085, at *3-4 (Iowa Ct.

App. Mar. 24, 2010) (affirming and remanding for application of correct standard

on review of new trial motion). Houk filed an application for postconviction relief,

which he amended and supplemented.

      The State moved for summary judgment. The court granted the motion on

all but one of the claims. Following consideration of written arguments, the court

denied the remaining claim. Houk appealed.

       Houk raises his claims under an ineffective-assistance-of counsel rubric.

To succeed, he must show (1) the breach of an essential duty and (2) prejudice.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). “If we conclude a

claimant has failed to establish either of these elements, we need not address

the remaining element.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

I.    Use of Stun Belt

      Houk claims his trial attorney was ineffective in failing to seek a hearing

prior to the State’s placement of a stun belt around his waist. The belt, worn

beneath his clothing, was a security apparatus that allowed officers to shock

Houk with an electrical current and immobilize him if he attempted to flee or if he

or others became disruptive during trial.
                                         3

       In resolving this claim, we elect to focus on the Strickland prejudice prong.

This prong requires a postconviction relief applicant to establish a reasonable

probability of a different outcome. See Strickland, 466 U.S. at 694; cf. State v.

Wilson, 406 N.W.2d 442, 448 (Iowa 1987) (“[T]he defendant has the burden to

show the incident prejudicially affected the jury or that his ability to present his

defense was impaired as a result of his being seen in shackles.”); State v.

Blodgett, No. 03-0229, 2003 WL 22900539, at *3 (Iowa Ct. App. Dec. 10, 2003)

(same). But see Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (stating “in

Strickland v. Washington, the Supreme Court rejected the claim by the defendant

that prejudice was established when the attorney’s unprofessional errors resulted

in a mere impairment of the presentation of the defense”).

       Our de novo review of the record reveals the following facts. A retired

Taylor County sheriff testified that, unlike shackles, the stun belt was not visible

to the jury and, unlike knee braces, the belt did not “lock up,” requiring personnel

to release it within possible eyesight of the jury. The retired sheriff testified the

only problem conveyed to him by personnel inside the courtroom was a need to

readjust the belt, which was done during a break outside the jury’s presence.

       Houk did not refute this testimony.      There was no indication that any

member of the jury saw the belt or that officers shocked him with it. See State v.

Buchanan, No. 03-0230, 2004 WL 1071896, at *4-5 (Iowa Ct. App. May 14,

2004) (distinguishing cases involving the prejudicial effect of having a defendant

“in the presence of the jury for an extended period of time in prison attire,

restraints, or both”).
                                          4


       Houk nonetheless asserts his fear of being shocked made it difficult to

concentrate on the proceedings and this difficulty established Strickland

prejudice.   Houk did not express any concerns about the belt during trial.

According to the sheriff, he passed notes to his attorney and was never seen

“sitting rigidly in his chair as though he was afraid to move.”

       Nor is there evidentiary support for Houk’s assertion that the stun belt

compelled him to change “his trial strategy” or prevented him from fully

questioning “the credibility of the victim.” Houk’s attorney cross-examined the

complaining witness extensively. The trial record does not reflect that the belt

inhibited Houk from consulting with his attorney during cross-examination or,

indeed, during any part of her testimony.

       Finally, the evidence of guilt was overwhelming. See State v. Ambrose,

861 N.W.2d 550, 559 (Iowa 2015). The State meticulously established Houk’s

entry into M.F.’s car shortly before she completed her shift at a local grocery

store, his multiple sexual assaults at various locations, and his decision to

partially destroy the evidence by setting fire to M.F.’s vehicle.

       Houk asserted the multiple sex acts were consensual, as was the binding

of her hands and feet with duct tape. Even without the benefit of seeing or

hearing him testify, his defense rings hollow.        We conclude Houk failed to

establish a reasonable probability of a different outcome had counsel sought and

obtained a hearing on the use of the belt. Strickland, 466 U.S. at 694.

II.    Challenges to Jury Instructions

       In a pro se brief, Houk raises several challenges to the jury instructions

under an ineffective-assistance-of-counsel rubric.
                                         5

       A. Confinement Instruction

       Houk’s first challenge is to an instruction on the meaning of confinement

for purposes of the kidnapping charge. Houk asks us to consider the view of a

special concurrence in a recent Iowa Supreme Court opinion, State v. Robinson,

859 N.W.2d 464, 488 (Iowa 2015) (Wiggins, J., concurring specially).              In

Robinson, as in this case, the district court separately instructed the jury on the

meaning of “confinement.” See Robinson, 859 N.W.2d at 488. The instruction in

Robinson failed to include two intensifiers required by our precedent on

kidnapping: a “substantial” increase in the risk of harm to the victim or a

“significant” decrease in the risk of detection.    Id. (citing State v. Rich, 305

N.W.2d 739, 745 (Iowa 1981)). The special concurrence would have found these

omissions inconsistent with Rich and would have concluded defense counsel

breached an essential duty in failing to object to the instruction, which prejudiced

the defendant “in a factually close case such as this.” Id. at 492.

       Assuming without deciding that Houk’s trial attorney breached an essential

duty in failing to object to the absence of the quoted intensifiers, we cannot find

Strickland prejudice. Unlike Robinson, this was not a close case; as we have

already discussed, the evidence was overwhelming. Accordingly, there is no

reasonable probability of a different outcome. See State v. Ronnau, 14-0787,

2016 WL 351314, at *10 (Iowa Ct. App. Jan. 27, 2016) (finding “no reasonable

probability of a different outcome had counsel objected to the uniform jury

instruction” on confinement).
                                            6

       B. Kidnapping Instruction

       Houk asserts the kidnapping instruction allowed “the jury to convict without

finding all of the elements as prescribed by Iowa Code [section] 710.2, namely

that the victim was intentionally subjected to sexual abuse as a consequence of

the kidnapping.” He focuses on the last element of the kidnapping instruction,

which required the State to prove, “As a result of the removal and/or confinement

[M.F.] was sexually abused.” In his view, this language is inconsistent with the

statute, which requires proof of a “completed kidnapping” rather than “proof of a

simple confinement or removal.”1 This court addressed and rejected the identical

argument in Ronnau. See id. at *9. The court stated:

       [W]hen the phrase “as a result of the confinement or removal” is
       read in context, it is clearly referring to the defendant’s kidnapping
       of the victim. . . . [I]t is clear that when the marshalling instruction is
       read in conjunction with the instruction defining confinement or
       removal . . . the jury instructions in this case correctly conveyed the
       law and elements of the offense of first-degree kidnapping.

Id. We find this reasoning persuasive. Assuming counsel had a duty to object to

the instruction on the ground that it failed to track the language of section 710.2,

Houk was not prejudiced by the omission because the instructions as a whole

properly conveyed the elements of the crime. See id.

       C. “Serious Injury” Instruction

       Houk takes issue with the following definition of “serious injury” provided to

the jury:



1
  Section 710.2 states, “Kidnapping is kidnapping in the first degree when the person
kidnapped, as a consequence of the kidnapping, suffers serious injury, or is intentionally
subjected to torture or sexual abuse.” (Emphasis added.)
                                             7


       A serious injury is a disabling mental illness, a condition which
       cripples, incapacitates, weakens or destroys a person’s normal
       mental functions, and/or bodily injury which creates a substantial
       risk of death or which causes serious permanent disfigurement or
       extended loss or impairment of the function of any bodily part or
       organ. “Serious injury” includes but is not limited to skull fractures
       and rib fractures.

Houk contends the inclusion of “skull fractures and rib fractures” was improper

because “in cases of adults, [these] are [not] per se serious injury.” 2 Houk could

not establish a reasonable probability of a different outcome had the challenged

language been removed.           As the district court determined, “at worst, the

language is mere surplusage.” The court concluded, “There was no evidence of

skull or rib fractures with respect to the victim in this case, thus no possibility that

the jury could have determined that such evidence was sufficient to constitute a

serious injury under the sentence.” See State v. Maxwell, 743 N.W.2d 185, 197

(Iowa 2008) (“When the submission of a superfluous jury instruction does not

give rise to a reasonable probability the outcome of the proceeding would have

been different had counsel not erred, in the context of an ineffective-assistance-

of-counsel claim, no prejudice results.” (internal citation omitted)).

       D. “Dangerous Weapon” Instruction

       Dangerous weapon was defined for the jury as follows:

       [A]ny device or instrument designed primarily for use in inflicting
       death or injury, and when used in its designed manner is capable of
       inflicting death. It is also any sort of instrument or device actually
       used in such a way as to indicate the user intended to inflict death
       or serious injury, and when so used is capable of inflicting death.


2
  Iowa Code section 702.18(2) states, “‘Serious injury’ includes but is not limited to skull
fractures, rib fractures, and metaphyseal fractures of the long bones of children under
the age of four years.”
                                           8


The term appeared in the marshalling instruction on second-degree sexual

abuse.

         Houk appears to argue the instruction should not have been given

because there was insufficient evidence to prove second-degree sexual abuse

by use of a dangerous weapon. Houk failed to establish Strickland prejudice

because the jury did not find him guilty of second-degree sexual abuse. As the

district court concluded,

       [T]he jury did not consider the offense of sexual abuse in the
       second degree because it convicted [Houk] of the greater offense
       of first degree kidnapping. [Houk] could not have been prejudiced
       by an instruction that the jury would not consider if it followed the
       court’s instructions, which it is presumed to have done.

       E. Instruction on Third-Degree Kidnapping

       Houk challenges an instruction on third-degree kidnapping and,

specifically, the element requiring proof of specific intent to “secretly confine

[M.F.]” He points to the State’s removal of any allegation of secret confinement

as an alternate charging ground.       Again, Houk failed to establish Strickland

prejudice. As the district court stated,

       [T]he jury did not consider the offense of kidnapping in the third
       degree because it convicted [Houk] of the greater offense of first
       degree kidnapping. [Houk] could not have been prejudiced by an
       instruction that the jury would not consider if it followed the court’s
       instructions, which it is presumed to have done.

       F. Second-Degree Kidnapping Instruction

       Houk claims he “was entitled to a . . . second-degree kidnapping

instruction as the primary lesser included offense as guaranteed by the Iowa

Constitution.” Second-degree kidnapping is “[k]idnapping where the purpose is

to hold the victim for ransom or where the kidnapper is armed with a dangerous
                                           9


weapon.” Iowa Code § 710.3 (2007). In Houk’s view, the State must have

believed a dangerous weapon was involved in light of its request for a

“dangerous weapon” instruction and, if there was substantial evidence of a

dangerous weapon, the second-degree kidnapping instruction was warranted.

       The district court concluded second-degree kidnapping was not a lesser

included offense of first-degree kidnapping. The court reasoned as follows: “A

conviction of first degree kidnapping can . . . occur without necessarily including

second degree kidnapping since sexual abuse is not an element of second

degree kidnapping and neither option for the commission of second degree

kidnapping is required for first degree kidnapping.”            We agree with this

conclusion. See State v. Bitzan, No. 12-0551, 2013 WL 3273813, at *4 (Iowa Ct.

App. June 26, 2013) (concluding where the State charged first-degree

kidnapping under sexual-abuse alternative, “second-degree kidnapping [was] not

a lesser-included offense” and “defense counsel was not ineffective because

counsel has no duty to pursue a meritless issue”). Counsel did not breach an

essential duty in failing to insist on a second-degree kidnapping instruction.

III.   Trial Information

       Houk claims the “trial information and subsequent verdicts and judgment

. . . are void due to the lack of sufficient factual specificity.” As the district court

concluded, “The minutes in this case are detailed and clearly support each of the

charges filed.” See State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994) (“Iowa courts

consider both the indictment or information and the minutes filed when

determining the adequacy of the allegations to apprise the accused of the crime
                                         10


charged.”). Counsel did not breach an essential duty in failing to challenge the

trial information.

IV.    Ineffective Assistance of Appellate Counsel

       Houk claims his appellate attorney was ineffective in failing to raise the

ineffectiveness of trial counsel. We no longer require ineffective-assistance-of-

counsel claims to be raised on direct appeal to preserve them for postconviction

relief. See Iowa Code § 814.7(1) (2016) (“An ineffective assistance of counsel

claim . . . need not be raised on direct appeal . . . in order to preserve the claim

for postconviction relief purposes.”). Accordingly, we conclude appellate counsel

did not breach an essential duty in failing to raise the ineffective-assistance

claims Houk later raised in his postconviction relief application

V.     Search Warrants

       Houk contends search warrants issued in the case were void. He asserts

that the “search warrant application affidavit” failed to demonstrate “a nexus

between criminal activity and the 2004 red Dodge vehicle that was searched at

[his] residence.”

       In determining whether probable cause exists to issue a search warrant,

“[t]he task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before [the

magistrate], . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” State v. Hoskins, 711 N.W.2d 720, 727 (Iowa

2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also State v.

McNeal, 867 N.W.2d 91, 100 (Iowa 2015) (“[T]he affidavit of probable cause is
                                         11


interpreted in a common sense, rather than a hypertechnical, manner.” (citation

omitted)).

       The district court addressed this claim as follows,

       [T]he search warrant application recites that the victim and [Houk]
       were located leaving [Houk’s] residence when [he] was
       apprehended. At that time, according to the search warrant
       application, the only vehicle at [Houk’s] residence was the red
       Dodge pickup truck. Since his residence was in a rural area, it is
       logical to assume that they did not arrive at the residence on foot
       and used the pickup truck to get there. The search warrant
       application also affirmatively indicates that [Houk] and the victim
       drove to [his] residence.
              Further, the search warrant application indicates that a red
       pickup truck was seen at the area where it was believed that the
       victim had been abducted, that this truck left tire tracks, and that the
       pickup truck at [Houk’s] residence had tires with tread similar to the
       tracks found at the scene of the abduction. The victim’s car had
       also been found burning behind the Junction Café in Bedford, some
       distance form [Houk’s] residence, further lending support to the
       assumption that the pickup truck was the means of transportation
       from the scene of the abduction to [Houk’s] residence.
              ....
              [A]n attorney is not incompetent for failing to pursue a
       meritless issue. [Houk’s] arguments are wholly without merit and a
       motion to suppress would have been denied. There can be no
       prejudice to [Houk] for his trial counsel failing to attack the search
       warrants . . . .

       On our de novo review of the search warrant application, we concur in this

analysis. There is no question the State established a sufficient nexus to support

the search warrant application. Accordingly, counsel did not breach an essential

duty in failing to challenge the search warrant.

VI.    Prosecutorial Misconduct

       Houk    claims   “the   prosecutor     committed      misconduct   by      falsely

characterizing evidence.”      He contends the prosecutor misled the jury by
                                         12


“consistently misidentify[ying] a red mark on [M.F.’s] left hand as a bruise” rather

than a “petechial.” The district court stated,

       [T]he difference between a bruise and a petechial is one of degree
       of subcutaneous bleeding, with a bruise representing a relatively
       greater amount of bleeding. Both terms refer to an injury suffered
       by the victim and there is no reason to believe based on this record
       that referring to the victim’s injury by the correct medical term
       instead of the common lay term would have made any difference in
       the outcome of this case. The jury had a picture of the victim’s
       hand where the injury was located and was free to assess the
       significance of that injury without regard to the terminology used to
       describe it.

We fully concur in this analysis. Counsel did not breach an essential duty in

failing to challenge the prosecutor’s use of the term “bruise.”

VII.   Jury Selection

       Houk contends “the district court erred and abused its discretion . . . by

overruling challenges for cause which, forced [him] to use all of his peremptory

strikes and forced incompetent jurors upon him.”

       A juror may be removed for cause where “the juror holds such a fixed

opinion on the merits of the case that he or she cannot judge impartially the guilt

or innocence of the defendant.” State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa

1993) (citing State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985)). The “partiality of

a juror may not be made the basis for reversal in instances in which that juror has

been removed through exercise of a peremptory challenge.”           Id. at 747.   A

peremptory challenge “serve[s] as a safeguard against an unjust conviction.”

State v. Mootz, 808 N.W.2d 207, 223 (Iowa 2012).

       During jury selection, Houk’s attorney challenged juror D.E. for cause.

The district court denied the challenge. We are persuaded D.E. should have
                                        13


been removed for cause. D.E. repeatedly equivocated on whether he could be

fair and impartial. He conceded he made “some pretty strong statements” about

the case when it first arose, essentially commenting on “what they should do with

people that are responsible for basically wrecking a girl’s life.” When asked what

he thought should happen, he stated, “Whoever is responsible for it should not

see daylight again.” While he did not assert Houk was guilty, he stated he did

not “know” whether he could set aside his prior views. These were not the words

of an impartial juror. See Neuendorf, 509 N.W.2d at 745 (concluding juror who

simply stated he would “try” to judge the defendant on what he did or did not do

should have been removed for cause).

       Houk’s attorney also challenged juror T.G. for cause. The district court

denied the challenge. Again, we are persuaded T.G. should have been removed

for cause.   She stated “when they find a girl that they are looking for at

someone’s house, it is kind of hard not to form some sort of an opinion.” When

asked whether she could put this opinion aside, she responded, “You’ve got to

completely forget everything you heard?       Probably not.” She continued, “[I]t

would be harder to presume probably that he is innocent.” When advised she

was required to presume him innocent and asked whether she could do that, she

responded, “I’m not so sure.” These were not the words of an impartial juror.

       That said, the failure to have these jurors removed for cause could not be

laid at defense counsel’s doorstep. Because Houk’s attorney challenged both

jurors for cause, Houk failed to establish the breach of an essential duty.

       Houk also failed to establish Strickland prejudice. As in Neuendorf, the

prosecutor and Houk’s attorney exercised several peremptory challenges that
                                          14

resulted in the removal of these jurors. They did not decide Houk’s guilt. Cf.

Mootz, 808 N.W.2d at 222 (distinguishing Neuendorf on the ground that the

defendant “was denied the opportunity to exercise a peremptory challenge

against a specific juror”).

        Houk next asserts his attorney should have stricken juror J.A. on the basis

of the juror’s disclosure that he was sexually assaulted as a child.

        Iowa Rule of Criminal Procedure 2.18(5)(m) allows a challenge for cause

where “the juror is a . . . complainant against the defendant or any other person

indicted for a similar offense.” J.A. declined to disclose his childhood abuse by a

“dirty old man” until he was forty-four years old. We surmise, then, that J.A. was

not a complainant in a criminal charge against the man.             For that reason,

rule 2.18(5)(m) does not apply.

        Additionally, the similarities between J.A.’s experience and that of M.F.

were not “striking.” See State v. Hatter, 381 N.W.2d 370, 372 (Iowa 1985). And,

J.A. unequivocally stated he could be fair and impartial notwithstanding his own

childhood experience. We are persuaded counsel did not breach an essential

duty in failing to challenge this juror for cause or in failing to exercise a

peremptory challenge to remove the juror.

VIII.   M.F.’s Medical History

        Houk contends his trial attorney was ineffective in failing to “investigate,

interview or call as witnesses any of the medical staff regarding the lack of any

evidence alluding to a sexual assault.” He continues, “[t]here was absolutely no

damaging information in the medical report that would have damaged [his]

defense or trial strategy.” To the contrary, Houk’s trial attorney testified,
                                         15


       [T]here was very, very damaging testimony on those medical
       records and—and there’s no way to just allow certain portions in
       and keep other portions out, because evidence and statements on
       the—on those medical records corroborated what she said
       happened to her, and they would have been—basically
       corroborated her story in regards to what had happened to her, and
       it would have been bad for [Houk].

       Although a sexual assault nurse examiner conceded there was “no

evidence of injuries found” during her exam of M.F., she stated, “You can’t

assume because there are no injuries that [a sexual assault] did not occur.” She

testified by deposition that “more often than not” a “victim can be subject to

sexual assault without actually . . . sustaining any injuries.” We conclude counsel

did not breach an essential duty in declining to introduce medical evidence.

IX.    Alleged Exculpatory Videotape

       Houk contends he “was denied effective assistance of trial counsel when

counsel failed to employ video evidence that . . . supported [his] defense.” He

asserts his attorney “had access to video that proved that [he] was in the Locker

Room Bar until 9:49 p.m.” and thus established M.F. “lied about being abducted

after getting off of work at 9:04 p.m.” As the district court explained,

       It would appear that his effort here is to discredit the victim’s
       version of events. The difficulty here is that it also completely
       discredits [Houk’s] version of events as well. He testified at trial
       that he left the Locker Room bar at 9 p.m. so that he could make
       contact with the victim when she got off work at 9 p.m. He further
       testified that he in fact did have contact with the victim at Hy-Vee as
       she was leaving work and that he then waited in the Hy-Vee
       parking lot until about 10:30 p.m. for the victim to return. He now
       argues that the Locker Room videotape conclusively establishes
       that he was at the Locker Room bar until 9:49 p.m. and that his trial
       counsel should have introduced it at trial. Had trial counsel done
       so, he would have conclusively established that [Houk] . . . had lied
       under oath at trial. There is absolutely no chance that the “failure”
       of trial counsel to introduce the Locker Room videotape was
       ineffective assistance of counsel.
                                        16



       On our de novo review, we find this analysis supported by the record.

Counsel did not breach an essential duty in failing to introduce a video that would

have undermined Houk’s testimony and impeached his credibility.

X.     Double Jeopardy

       Houk contends “his multiple sentences of sexual abuse in the third

degree” should be vacated “as they are factually and legally lesser included

offenses of first degree kidnapping.” We need not review this contention under

an ineffective-assistance-of-counsel rubric because an illegal sentence may be

challenged at any time. See State v. Walker, 610 N.W.2d 524, 526 (Iowa 2000)

(“An illegal sentence may be urged as a ground for reversal at any time,

obviating the need to challenge the error in district court in order to preserve the

issue for appeal.”); State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995)

(“[I]llegal sentences are not subject to the usual requirements of error

preservation and waiver. . . . [Defendant’s] conduct in the trial court does not

prevent him from claiming on appeal that his sentences violated section 701.9.”).

       A merger argument is inapplicable where there are “two separate crimes.”

Walker, 610 N.W.2d at 525; State v. Dittmer, 653 N.W.2d 774, 777-78 (Iowa Ct.

App. 2002).      The State charged and proved several separate crimes.

Accordingly, Houk was appropriately sentenced for each of the crimes.

       We affirm the district court’s denial of Houk’s postconviction relief

application.

       AFFIRMED.
