                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1909
                               Filed August 16, 2017


VINCENT MUMMAU,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Michael J.

Shubatt, Judge.



      Defendant appeals the district court decision denying his petition for

postconviction relief from his conviction for third-degree sexual abuse.

AFFIRMED.



      Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                        2


BOWER, Judge.

       Vincent Mummau appeals the district court decision denying his petition

for postconviction relief from his conviction for third-degree sexual abuse. We

find Mummau has failed to show he received ineffective assistance from his

defense and appellate counsel. We also find the postconviction court did not

abuse its discretion in denying Mummau’s request for a subpoena of certain cell

phone records.     We affirm the district court’s decision denying Mummau’s

request for postconviction relief.

       I.     Background Facts & Proceedings

       The following facts are set out in Mummau’s direct appeal:

              On July 7, 2011, B.K. arrived at the home of Vincent
       Mummau to fix his television and pick up eggs. After working on
       one television in the lower level of the home, Mummau suggested
       she also see the one upstairs and offered her a tour of his home.
       The two walked upstairs to the second level of the home. Mummau
       asked whether she “need[ed] some loving” to which she responded
       “not today.” The tour continued to Mummau's bedroom, where B.K.
       declined his advances again. At some point, Mummau forced B.K.
       onto the bed, landing on top of her. Mummau then instructed her to
       remove her clothes.        B.K. stood and complied.      Mummau
       performed various sex acts on B.K. and left the room. B.K.
       reported the incident to police several days later.

State v. Mummau, No. 12-1082, 2013 WL 2145994, at *1 (Iowa Ct. App. May 15,

2013) (footnote omitted). At the time of the incident, B.K. was a seventy-three

year old woman in poor health.

       Mummau was charged with sexual abuse in the third degree, in violation

of Iowa Code section 709.4(1)(a) (2011).     Mummau admitted he engaged in

sexual conduct with B.K. but stated the encounter was consensual. A jury found

Mummau guilty of third-degree sexual abuse. He was sentenced to a term of
                                         3


imprisonment not to exceed ten years. Mummau’s conviction was affirmed on

appeal. See id. at *7.

      On April 27, 2015, Mummau filed an application for postconviction relief,

claiming he received ineffective assistance of counsel during his criminal trial.

He claimed defense counsel (1) failed to object to certain evidence and failed to

move for a mistrial; (2) failed to impeach witnesses properly; (3) failed to present

character evidence; (4) failed to investigate evidence that could have been used

to impeach B.K.; and (5) was generally ineffective.        Mummau also claimed

appellate counsel failed to raise issues that should have been raised.1

      During the postconviction proceedings, Mummau filed a motion seeking

the production of the cell phone records of B.K. and eight other people for thirty

days before and thirty days after July 7, 2011. He stated the evidence was

needed to show defense counsel did not adequately investigate impeachment

evidence concerning B.K.’s testimony about who she told of the sexual assault

and when she told them. The State resisted the motion. The court granted the

motion as to B.K.’s cell phone records but denied the request for the cell phone

records of the other people. Subsequently, B.K.’s estate objected to the order

requiring the production of her cell phone records.2 After a hearing, the court

denied Mummau’s motion to authorize the disclosure of B.K.’s cell phone

records.

      At the postconviction hearing, the deposition of defense counsel was

presented. The district court found Mummau failed to show counsel breached an

1
   Mummau’s counsel for his direct appeal was the same attorney who represented him
during the criminal trial.
2
  By the time of the postconviction proceedings, B.K. was deceased.
                                         4


essential duty or he was prejudiced by counsel’s conduct. The court concluded

Mummau failed to show he received ineffective assistance of counsel. Mummau

now appeals the district court’s decision.

       II.     Ineffective Assistance

       We conduct a de novo review of claims of ineffective assistance of

counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a

claim of ineffective assistance of counsel, a defendant must prove (1) counsel

failed to perform an essential duty and (2) prejudice resulted to the extent it

denied the defendant a fair trial. Id. A defendant’s failure to prove either element

by a preponderance of the evidence is fatal to a claim of ineffective assistance.

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       A.      Vouching

       1.      Mummau claims defense counsel should have objected because

witnesses were improperly permitted to vouch for the credibility of B.K. A witness

may not directly or indirectly render an opinion on the credibility of another

witness.     See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014).           This is

because a witness should not comment on a defendant’s guilt or innocence.

State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014).

       First, during the trial, Maria Farmer, a sexual assault response nurse who

examined B.K., was asked, “Can you describe [B.K.’s] demeanor when you were

getting her medical history from her?” The court overruled defense counsel’s

objections. Farmer then testified B.K. “was very open about what was going on

and talked very strongly about the events that had occurred the night before, but

by the time of the end of it, she was tearful, when it really got down to the details
                                        5


of the event.” We find there was no breach of duty because defense counsel did

object to the question.     Additionally, Farmer’s testimony concerned B.K.’s

demeanor and was not improper vouching. See id.

      Second, Farmer was asked, “As a trained sexual assault response nurse,

is a delay in reporting common?” Defense counsel raised several objections,

which were overruled by the district court. Farmer answered, “Yes, it’s common

that they delay in receiving treatment.”    Defense counsel did not breach an

essential duty because he objected to the question.       Furthermore, Farmer’s

testimony was not improper because she gave no opinion about this specific

case, stating only a delay was common. See Dudley, 856 N.W.2d at 676 (citing

State v. Payton, 481 N.W.2d 325, 327 (Iowa 1992)).

      Third, defense counsel asked Farmer if there was medical evidence that

would dispute Mummau’s version of the events and Farmer responded, “History

taking in the medical profession is evidence. Your statement to me, just as in

chest pain, is medical evidence. So, yes, medical evidence is what you state is

wrong with you.” This question and answer did not relate to improper vouching,

and Mummau has not shown he received ineffective assistance on this ground.

      Fourth, Deputy Brent Ostrander was asked why a photograph of Mummau

was taken when he was not wearing a shirt. Ostrander replied, “I assume that it

was the State’s idea that since there is a sexual assault and at the time that the

sexual assault was reported, it was believed that Vincent wasn’t wearing a shirt.”

No objection was made to this statement.       We find this statement does not

involve improper vouching because Deputy Ostrander was not stating another

witness was credible. He gave no opinion as to whether an investigation was
                                        6


warranted, but stated there was an investigation of Mummau, which would have

been apparent from the fact he was being prosecuted for sexual abuse.          Cf.

Brown, 856 N.W.2d at 689 (finding it was improper for an expert witness to state

an investigation of a witness’s account of sexual abuse was “clearly warranted”).

Mummau has not shown he received ineffective assistance due to counsel’s

failure to object to the statement.

          Fifth, Deputy Steven Holst testified B.K. was a strong woman. When

questioned about this statement on cross-examination, Deputy Holst stated, “she

was strong in the fact that she faced a traumatic experience and she was able to

express her feelings about it.” No objection was made. As the postconviction

court pointed out, the evidence B.K. was a strong woman was consistent with the

defense’s theory she would not have complied with Mummau’s request for sex if

she did not agree with it. The postconviction court also noted an objection to the

evidence would have drawn more attention to it. We conclude Mummau has not

shown he received ineffective assistance due to defense counsel’s failure to

object.

          2.    Mummau claims defense counsel should have filed a motion for

mistrial due to improper vouching for B.K. based on the following statements,

which were objected to during the trial.      Deputy Ostrander was asked to

described B.K.’s demeanor and he stated, “My time with [B.K.], I have noticed

her as a very direct and what I would consider an honest person.” The district

court sustained defense counsel’s objection and directed the jury to disregard the

answer. Also, when Deputy Ostrander was asked about B.K.’s demeanor, he
                                         7


stated, “[B.K.] was fearful.”3   Defense counsel’s objection was denied by the

court. Special Agent Mike Krapfl testified, “In my opinion, [B.K.] did not go to the

bed on her own.”         The court sustained defense counsel’s objection to the

statement.

       In his deposition, defense counsel testified to his reasons for not filing a

motion for a mistrial:

               That jury that we had contained a lady who Vince went to
       church with, who ended up being the foreman of that jury, it had a
       lady whose brother had been wrongfully accused of sexual
       harassment, and I believe two or three other men who had been
       criminal defendants.
               I thought we had a favorable jury. Vince always wanted to
       try to get this over with, as did I. And I think Vince, if he's honest
       about it, and we had talked about it, felt we had a good jury. To ask
       for a mistrial, if it was granted, would have put him seeking a retrial
       in front of a jury that would not be as favorable as what this jury
       seemed to me to be.

We conclude defense counsel engaged in a reasonable trial strategy to try the

case to the jury already present, rather than seeking a mistrial. See State v.

Ross, 845 N.W.2d 692, 698 (Iowa 2014) (noting a claim of ineffective assistance

requires “more than a showing that trial strategy backfired” or another attorney

would have tried the case differently).       We agree with the district court’s

statement, “Further, given that the jury was perceived as favorable to the

defense, it was reasonably strategic for counsel not to move for a mistrial over

this issue.”




3
    We additionally find this statement about B.K.’s demeanor was not improper
vouching. See Brown, 856 N.W.2d at 689.
                                         8


       B.     Hearsay Evidence

       In general, hearsay evidence is not admissible.       Iowa R. Evid. 5.802.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Iowa R. Evid. 5.801(c). Hearsay evidence may be admissible if it

comes within one of the exceptions to the hearsay rule. See Iowa R. Evid. 5.803;

State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (“Hearsay is not admissible

unless it falls within one of several enumerated exceptions.”).

       During the criminal trial, the State presented a recording of a jail

conversation between Mummau and Marvin Kahr, a mutual friend of Mummau

and B.K. Defense counsel filed a motion to suppress and a motion in limine, and

objected during the trial but the district court ruled the recording was admissible.

Mummau now claims defense counsel should have sought to keep out portions

of the recording on hearsay grounds. In his deposition, defense counsel stated if

the tape was going to come in, it was better for the whole thing to come in. He

stated parts of the recording were helpful to the defense. Defense counsel also

stated, “[Y]ou have to conserve your objections when you’re trying a case.” We

find defense counsel made a strategic decision not to object to the recording on

hearsay grounds. As the postconviction court found, “This was not a random

decision or an oversight on [defense counsel’s] part.”

       Mummau claims defense counsel should have objected to B.K.’s

testimony concerning Kahr’s statements when she told him what had happened

with Mummau. The statements—“Oh, my God,” “Well, let’s go to Oelwein, and

we can talk about it,” and “Are you going to turn him in?”—were not offered for
                                         9

the truth of the matter asserted, and therefore, do not constitute hearsay. See

Iowa R. Evid. 5.801(c). “Counsel does not fail to perform an essential duty by

failing to raise a meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa

2015).

         B.K. also testified she talked to Deputy Holst, who told her she had ten

years to report an offense of sexual abuse, said “What’s going on?” and told her

to get checked out at a hospital. Again, the statements were not offered for the

truth of the matter asserted. See Iowa R. Evid. 5.801(c). Defense counsel had

no obligation to object to the statements on hearsay grounds.

         Deputy Ostrander testified “[B.K.] had conveyed to us at the time we

arrived that she had a neighbor staying there to try to help her because she was

fearful for her safety. She was fearful that something was going to happen now

that this has come out.” Defense counsel objected on hearsay grounds and the

objection was denied by the district court. Mummau has not shown defense

counsel breached an essential duty.

         Deputy Ostrander testified concerning B.K.’s statements to him about

what Mummau was wearing and described the sheets in his bedroom.               The

postconviction court found, “At least in part, this was a strategic decision by the

defense because there were inconsistencies between what B.K. told Ostrander

and what she said on other occasions. In a case largely dependent on credibility,

any inconsistencies are valuable to the defense.” The court additionally noted

Mummau was not prejudiced by the statements because he did not deny B.K.

came to his house on the day in question. We conclude Mummau has not shown

he received ineffective assistance on this issue.
                                         10


       Deputy Ostrander testified Mummau’s shorts were sent to the crime lab for

DNA testing and they were positive for seminal fluid belonging to Mummau.

Mummau claims the DNA evidence was hearsay and defense counsel should

have objected.       Even if the evidence was hearsay, it was not prejudicial to

Mummau.      He admitted to a sexual encounter with B.K., but claimed it was

consensual, although B.K. now regretted the encounter. The fact his seminal

fluid was in his shorts was not prejudicial and he was not harmed by counsel’s

failure to object.

       Special Agent Krapfl testified Mummau told him he called Kahr and B.K.

on July 7, 2011, but when Krapfl looked at cell phone records, he did not see

where Mummau had called Kahr. Mummau claims defense counsel should have

objected because the contents of the cell phone records were hearsay. The

postconviction court stated:

       First, the testimony seems to verify Mummau’s statement that he
       had, in fact, called B.K., which was helpful to the defense. Whether
       or not he called Kahr is a minor point in light of all of the evidence
       offered at trial, and Mummau has not shown a likelihood that the
       outcome of the trial would have been different if this testimony had
       been kept out.

We agree with the court’s statements and conclude Mummau has not shown he

received ineffective assistance of counsel on this ground.

       C.      Confrontation Clause

       Under the Confrontation Clauses of the United States and Iowa

Constitutions, a defendant has the right “to be confronted with the witnesses

against him.” U.S. Const. amend. VI; Iowa Const. art. I, § 10. “A testimonial out-

of-court statement made by a declarant who is unavailable to testify is
                                           11


inadmissible if the defendant has not had an opportunity to cross-examine the

declarant.” State v. Wells, 738 N.W.2d 214, 218 (Iowa 2007).

       Mummau briefly mentions the admission of the recording of his

conversation with Kahr violated his rights under the Confrontation Clause

because he was not allowed to cross-examine Kahr about the statements. He

does not cite any authority or give further explanation of his claim. We conclude

the issue has not been adequately raised. See Iowa R. App. P. 6.903(2)(g)(3)

(“Failure to cite authority in support of an issue may be deemed waiver of that

issue.”).

       Mummau also claims the admission of the DNA results violated his rights

under the Confrontation Clause and defense counsel should have objected to the

admission of the evidence.        The admission of evidence in violation of the

Confrontation Clause does not require reversal if the error was harmless beyond

a reasonable doubt See id. We find the guilty verdict was not attributable to the

evidence Mummau’s DNA was found in his shorts, and conclude any error in

admitting the DNA evidence was harmless beyond a reasonable doubt.

       D.     Impeachment of B.K.

       Mummau claims he received ineffective assistance because defense

counsel did not properly impeach B.K. He states defense counsel should have

done more to bring out inconsistencies in her testimony.4




4
   Mummau relies in part on the inconsistencies between B.K.'s trial testimony in April
2012 and her statements in a civil deposition in October 2013. As the postconviction
court pointed out, defense counsel "cannot be criticized for failing to impeach B.K. with
deposition testimony that did not yet exist."
                                        12


       Defense counsel confronted B.K. with some of the inconsistencies in her

statements. He stated, however, he felt it was more productive to attempt to

show B.K. agreed to the sexual encounter with Mummau but changed her mind

and had a case of regret rather than attempt to show she was a liar. Defense

counsel testified, “I was concerned about making her appear to be more of a

victim.” We conclude defense counsel made a reasonable strategic decision

concerning his questioning of B.K. We find Mummau has not shown defense

counsel breached an essential duty by failing to impeach B.K. with absolutely

every inconsistency in her statements.       He has failed to show he received

ineffective assistance of counsel on this ground.

       E.     Character Evidence

       Prior to trial, Mummau indicated he wanted to present the testimony of

witnesses to show he was a peaceful, non-aggressive person. The district court

ruled the testimony was inadmissible and Mummau made an offer of proof. On

appeal, Mummau claimed the district court erred in not allowing testimony from

the character witnesses. Mummau, 2016 WL 2145994, at *3. We found no error

by the district court, concluding the evidence, as shown in the offers of proof, did

not meet the foundational requirements found in State v. Hobbs, 172 N.W.2d

268, 271 (Iowa 1969). Id. at *5. In his postconviction action, Mummau claims he

received ineffective assistance because defense counsel did not lay a sufficient

foundation for the character evidence to be admissible.

       Mummau had a prior conviction for assault in 2010, which the State

claimed was sexually motivated. Defense counsel filed a motion in limine and

the district court ruled the evidence of the conviction was inadmissible. Defense
                                       13


counsel recognized putting on evidence to show Mummau was peaceful and

non-aggressive made it much more likely the evidence of his prior conviction for

assault would have been admissible to impeach the testimony of the character

witnesses. The postconviction court stated:

      Thus, counsel was not ineffective for not offering this character
      evidence. Said another way, it was better for Mummau that this
      particular door remained closed. At the very least, Mummau
      cannot show that admission of the testimony likely would have led
      to a different outcome, and thus cannot show prejudice.

We agree with the postconviction court’s conclusions and determine Mummau

has not shown he received ineffective assistance of counsel on this issue.

      F.     Investigation

      Mummau claims he received ineffective assistance because defense

counsel did not adequately investigate the case. He states defense counsel

should have done more to reveal evidence to show B.K. had a financial

motivation to testify against him. After the criminal case, B.K. was a party in a

civil action against Mummau.        He states defense counsel should have

investigated whether B.K. was a party in other lawsuits, her cell phone records, a

domestic abuse petition she filed against another man, and other instances in

which she called the police.

      Defense counsel’s duty to investigate “depends on the facts and

circumstances of a particular case.” Schrier v. State, 347 N.W.2d 657, 662 (Iowa

1984). “[T]he duty to investigate and prepare a defense is not limitless.” Id. “It

does not require that counsel pursue ‘every path until it bears fruit or until all

conceivable hope withers.’”      Id. (citations omitted).   “The extent of the
                                        14


investigation required in each case turns on the peculiar facts and circumstances

of that case.” Id.

       Defense counsel testified he believed it would have “made us look silly in

front of the jury” to argue B.K. had a financial motive for alleging she was

sexually abused by Mummau. We find defense counsel made a reasonable

strategic decision not to pursue an argument during the criminal trial B.K. was

making false statements for a financial motive. The cell phone records were not

in evidence at the postconviction hearing and Mummau only speculates they

would have provided evidence helpful to the defense. As to the other matters

raised by Mummau, we find the evidence would not have been relevant to the

charges against him.     Additionally, we agree with the postconviction court’s

statement, “The Court finds nothing in this evidence to suggest that its admission

likely would have changed the outcome.” We conclude Mummau has not shown

he received ineffective assistance due to defense counsel’s failure to investigate.

       G.     Appellate Counsel

       Mummau claims he received ineffective assistance from appellate counsel

because the issues he now raises concerning vouching were not raised on

appeal. He also claims his hearsay and Confrontation Clause issues should

have been raised on appeal. We have determined these issues are without

merit. We agree with the postconviction court’s statement, “There has been no

showing that raising the issues on the direct appeal would have resulted in a

reversal that would have vacated the conviction and sentence.”
                                       15


       III.   Cell Phone Records

       Mummau claims the postconviction court abused its discretion by not

permitting him to subpoena the cell phone records of B.K. and eight other people.

He wanted the records to attempt to show defense counsel failed to conduct a

reasonable investigation. Mummau states the cell phone records would show

whether B.K. was truthful in her statements about who she contacted after her

sexual encounter with him. “We review a district court’s discovery decisions for

an abuse of discretion.” Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017).

       The district court first noted Mummau sought the records under 47 U.S.C.

§ 551(c)(2)(b), which applies only to governmental agencies. Because Mummau

is not a governmental agency, he is not entitled to cell phone records under this

statute. See Interscope Records v. Does 1-7, 494 F.Supp.2d 388, 390 (E.D. Va.

2007). Additionally, the court found the cell phone records were not reasonably

calculated to lead to the discovery of admissible evidence. The records would

not give Mummau any information about the content of B.K.’s calls. The court

determined the cell phone records “would seem to have little bearing on the

issues before the Court, given that [Mummau] knows of numerous individuals

with whom [B.K.] had contact during the relevant time period.” We conclude the

district court did not abuse its discretion in denying Mummau’s request for a

subpoena of cell phone records.

       We affirm the district court’s decision denying Mummau’s application for

postconviction relief.

       AFFIRMED.
