                IN THE SUPREME COURT OF IOWA
                                 No. 09–1500

                           Filed April 20, 2012


STATE OF IOWA,

      Appellee,

vs.

KENNETH LEE MADSEN,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Kurt L.

Wilke, Judge.



      Defendant appeals his convictions on two counts of second-degree

sexual abuse and one count of lascivious acts with a child. COURT OF

APPEALS DECISION VACATED; JUDGMENT OF DISTRICT COURT

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.


      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger and

Susan R. Krisko, Assistant Attorneys General, and Ricki L. Osborn,

County Attorney, for appellee.
                                     2

WATERMAN, Justice.

       In this case, we review our promise-of-leniency doctrine and

related issues to determine the admissibility of the confessions of

defendant, Kenneth Lee Madsen. A Webster County jury that heard part

of his confessions found him guilty on two counts of sexual abuse in the

second degree in violation of Iowa Code section 709.3(2) (2007) and one

count of lascivious acts with a child in violation of Iowa Code section

709.8. Madsen argues the district court erred in failing to suppress his

confessions because (1) his first of two interviews was not recorded

electronically, and (2) his confessions were involuntary under the

constitutional totality-of-the-circumstances test due to the detective’s

threat to make him late for work in the first interview and promise in the

second interview that if Madsen told him everything he could thereby

keep his name out of the local newspaper and put the matter behind

him.   The district court ruled police are not required to videotape or

audiotape noncustodial interviews and Madsen’s confessions were

voluntary and admissible.      On appeal, Madsen also claims his trial

counsel was ineffective for not attempting to suppress his confession

under our common law evidentiary test for promises of leniency.        In

response, the State invited our court to abandon the evidentiary test in

favor of the totality-of-the-circumstances test.

       We transferred the case to the court of appeals, which affirmed

Madsen’s convictions and rejected his ineffective-assistance claim based

on its conclusion no promise of leniency was made. On further review,

we decline to require audio or video recording of noncustodial interviews,

and we decline to abandon our evidentiary test for promises of leniency.

We conclude Madsen’s trial counsel breached an essential duty by failing

to move to suppress his confessions under that test.        We hold the
                                             3

interrogating officer made promises of leniency that require suppression

of   part    of    Madsen’s      confession,     but   Madsen’s   self-incriminating

statements made before those promises remain admissible. As a result,

Madsen is entitled to a new trial on one count of second-degree sexual

abuse, but his two remaining convictions are affirmed based on lack of

prejudice.        The decision of the court of appeals is vacated, and the

district court convictions and sentences are affirmed in part and reversed

in part.

        I. Background Facts and Proceedings.

        Madsen       met   the    victim,    D.M.K.,    when   the   child   was    in

kindergarten after the boy’s family moved into Madsen’s Fort Dodge

neighborhood. D.M.K. began spending time with Madsen when D.M.K.

was about seven years old.                  D.M.K. visited Madsen’s apartment,

sometimes alone and sometimes with his brother, D.K., and other young

boys.    Madsen had a Nintendo 64 at his apartment the boys used for

computer games. Madsen took the boys bowling and on walks in wooded

parks. Madsen had a police radio scanner and sometimes took the boys

“cop scanning”—going to the scenes of accidents and police calls. D.M.K.

occasionally spent the night at Madsen’s apartment.

        In the summer of 2008, D.M.K., D.K., and their older sister were

sitting on the front porch of their house with other children.                     The

conversation turned to sex, and D.K. said to D.M.K., “Why don’t you tell

about you and Kent [Madsen].” D.M.K. said D.K. was “lying” and went

into the house. The sister confronted D.M.K. alone to inquire, saying she

needed to know what happened. D.M.K. began to cry. D.M.K. told her

that Madsen had measured his penis with a ruler he called a “peter

meter” and that D.M.K. slept naked at Madsen’s home. The sister told
                                      4

their mother, who contacted the Iowa Department of Human Services

(DHS).

      In July, Jodie Keller, a child protective worker with DHS, called

Madsen and asked if they could meet to discuss child abuse allegations.

Madsen had previously completed a sixteen-week course of study at the

Fort Lauderdale, Florida Police Academy and graduated from that

program. He admitted he learned at the Academy that a person has a

right to leave an interview if he is not in custody. Madsen agreed to meet

at the DHS office in Fort Dodge. Because of the possibility of criminal

charges, Keller invited Fort Dodge police detective Jody Chansler to

attend the interview.    At the DHS interview, which was conducted

without audio or video recording, Madsen admitted he had used a ruler

to measure the penises of several boys who were eight to ten years old.

Madsen also admitted at this unrecorded interview the boys had

masturbated at his apartment a number of times and that he had not

told their parents. Madsen does not claim he was in custody for the DHS

interview.

      Detective Chansler followed up with a second interview of Madsen

on August 6.    Madsen agreed to meet in an interview room at the

Fort Dodge police station.    This time the interview was recorded by

audiotape and by videotape with sound. A transcript of the audiotape is

included in the court record. The video recording begins with Chansler

opening and closing the door to show it remained unlocked.            The

interview began with this exchange:

            [DETECTIVE CHANSLER]: You are here on your own
      free will.
             [MADSEN]: Yes.
            Q. You can get up and leave at any time, do you agree
      to that? A. Yes.
                                     5

Chansler then referred back to Madsen’s interview at the DHS office

several weeks earlier and reviewed the names of the five boys who had

spent time at his apartment, including D.M.K. and D.K. Chansler then

noted, “When we spoke to you last you gave us the information . . . about

the measuring of the penises.” Madsen stated, “That was poor judgment

on my part but . . . I don’t feel I really did anything all that wrong.” The

interview continued as follows:

             Q. Okay. Run me back through that so I know what
      you did and why you think that wasn’t wrong? A. Uh going
      back to those . . . thinking the night they had done it . . . I
      think that was one of the nights when [D.M.K.] was there.
      He had told [S.] you know . . . he showed them the ruler and
      said you know why don’t you measure your dick. . . . And
      uh . . . [D.M.K.] had an erection and he turned around and
      he kind of stuck it up and he was showing you know
      everybody how he was doing it. And he didn’t think he was
      doing it right so he had asked me if I would help him and
      show him how to do it. I said well I’d rather not and he goes
      come on just . . . you know I don’t know if I’m doing this
      right. I tried to explain it to him . . . and he goes here just
      do it. So I went over and I slid it in and tried to sit and
      measure it, and I told him how big it was and I went and sat
      the ruler down. So then everybody else started you know
      measuring theirs and I went back and sat on the bed
      watching TV.

The video at this point of the interview includes gestures indicating

Madsen had placed his hand on D.M.K.’s penis to hold the ruler against

it. Madsen continued to describe how he had helped five different boys

measure their penises on six different days or nights.

      Chansler then referred back to the DHS interview at which they

discussed how boys masturbated at his home and walked in on Madsen

masturbating.    The boys that masturbated included D.K. and D.M.K.

Madsen admitted D.M.K. masturbated “a lot” at Madsen’s residence.
                                      6

      Madsen made these self-incriminating statements during the

videotaped interview before Detective Chansler made the following

promises of leniency at issue:

              Q. Okay. You want this to go away right? A. Well
      yeah.
             Q. Because you have a good job, you have a life, and
      you . . . A. I made a poor choice.
            Q. And you want this to be done with . . . this . . . A. I
      thought it was over. I thought the decision was made . . .
      I’m waiting for the other shoe to basically drop right now.
              Q. Well here is what I need from you okay and I’ve
      explained to you once when we spoke before . . . you’ve got
      . . . in order for this case to get wrapped up, in order for you
      to go along with your life I have to know everything. A.
      Yeah.
             Q. And there is more information that I know that
      happened that you haven’t told me about so that’s going to
      keep the investigation open until I get everything and I’m
      satisfied with. I mean you don’t want this in the Messenger
      [the Fort Dodge daily newspaper] do you? A. No.
             Q. You don’t want your family . . . your job to open the
      Messenger and see your photograph and see my name saying
      that you’re under investigation for this, this, this . . . you want
      it over with now, right? A. Yes. I’m trying.
            Q. Well you’ve got to . . . you’ve got to come clean on
      everything. A. That’s what I’m doing.
            Q. Okay. So tell me about [S.] . . . the whole anal
      thing . . . I know there was . . . A. The whole what?
             Q. Okay at any time did any of the boys asked [sic]
      you for help or anything with like anal sex . . . and before
      you answer that think about what I just said about this
      investigation getting wrapped up and getting over with so
      you can move on with your life. I need you to tell me
      everything that went on in that apartment. I’m not arresting
      you today. I’ve already explained that . . . these boys have
      already had . . . they’ve already been down to Des Moines . . .
      they’ve already been interviewed by different people that
      specialize in this thing. Okay there is so much evidence . . .
      so much . . . uh . . . I got all kinds of videos, statements,
      evidence . . . and my last piece is you telling us the truth or
      this investigation is not going to be open and I’m just going
      to keep going and keep going so . . . I need you to make it
      over with. I can’t make it over with you unless [you] help
      out. A. Well I can’t tell you anymore . . . it didn’t happen. I
                                     7
      mean you know . . . well maybe you don’t know . . . I don’t
      have any problem with cooperating with police, I always
      have.
             Q. I agree with that.

(Emphasis added.)

      The interview then continued with more than twenty minutes of

Madsen being evasive and denying specific allegations of sexual conduct
while acknowledging the boys took baths at his home and that he helped

them bathe. About twenty-four minutes after Chansler’s comment about

the Messenger, Madsen admitted D.M.K. had grabbed his [Madsen’s]

penis, which got hard. Madsen then talked about D.M.K. playing with

his erect penis for minutes, but denied ejaculating.

      Both Chansler and Madsen remained calm and conversational

throughout the entire interview.     No voices were raised.     Both men

remained seated during their dialogue.         Chansler never made a

threatening gesture or movement towards Madsen.         Madsen described

his conduct with the boys in a matter-of-fact tone.

      Under    further   prompting   by   Chansler,    Madsen   described

attempted anal sex by D.M.K. and J. in Madsen’s presence.         Madsen

offered the boys lubricant and used his hands to “stage them.” Madsen

said he told D.M.K. and J. to cease the anal sex if it was painful.

Madsen told Chansler that helping the boys attempt anal sex made him

uncomfortable because Madsen himself had been raped when he was a

teenager.   Madsen volunteered that “everyone kind of experimented at

some point in time in life” and attributed the anal sexual activity as the

boys’ “kind of experimentation stage.” Moments later, Detective Chansler

turned off the audio tape recorder while the video recording captured

their final dialogue:

      A. So where do we go from here?
                                       8
              Q. At this point in time, Kent, all I’m doing is, is
        compiling a report okay? The county attorneys look it over
        and they will deem whether or not they want to do anything
        with it okay? That’s it. A. So they still could issue a
        warrant at this point?
               Q. They could, yes. That’s possible. A. Wonderful.
               Q. But, I’m not saying that’s going to happen and I’m
        not saying it isn’t going to happen. I don’t know. They have
        to look over all the evidence, all the paperwork. It’s not going
        to happen anytime soon. I’ll let you know if it does. But
        they will have to review it. Okay? Anything else you want to
        discuss . . . ?

Madsen displayed no sense of surprise or betrayal when told the county

attorney could charge him. He calmly walked out of the interview room.

        Madsen was charged with multiple counts of sexual abuse in the

second degree and lascivious acts with four boys.          The district court

granted his motion for separate trials. Madsen moved to suppress his

confessions at both interviews as involuntary and on grounds the first

interview was not recorded electronically.         Madsen alleged Detective

Chansler used “various statements and tactics to override [his] will by

making promises and threats.”        And he claimed the detective’s tactics

rendered his confession involuntary under the Fifth and Fourteenth

Amendments of the United States Constitution and article I, section 8 of

the Iowa Constitution. In his brief supporting the motion, Madsen cited

state    and    federal   cases   applying   a   totality-of-the-circumstances

voluntariness test and performed a totality-of-circumstances analysis.
The district court found Madsen’s statements were voluntary under the

totality of the circumstances, and the failure to record the first interview

did not require suppression. D.M.K.’s case proceeded to jury trial.

        The jury heard testimony from D.M.K. and his brother, D.K., and

heard Madsen’s confessions.        Madsen testified and denied any sexual

contact with D.M.K.        Madsen explained that he made admissions to
                                    9

Detective Chansler to avoid public humiliation and loss of his job if he

did not cooperate. D.K. testified he saw Madsen “jacking off” with his

hand on D.M.K.’s penis and that Madsen used a ruler to measure his

penis and his brother’s. D.M.K. testified Madsen would pull down his

pants to measure his penis and that Madsen wore no clothes when

D.M.K. was at his apartment. D.M.K. described Madsen as masturbating

while touching D.M.K.’s penis, that Madsen would touch D.M.K.’s penis

“pretty often,” and that Madsen put his mouth on D.M.K.’s penis.

      The jury acquitted Madsen on the count alleging oral sex—an act

Madsen never admitted in his confessions. The jury found Madsen guilty

on two counts of second-degree sexual abuse and one count of lascivious

acts with a child. The district court denied Madsen’s motion for a new

trial and sentenced him to twenty-five-year terms of imprisonment for

each count of second-degree sexual abuse and a ten-year term for the

lascivious acts with a child. The terms are to be served consecutively.

      Madsen appealed, and his appeal was transferred to the court of

appeals. On appeal, Madsen argues the district court erred in refusing

to suppress evidence as a result of the State’s failure to record his

noncustodial first interview and erred in finding his confession was

voluntary under the totality of the circumstances. Madsen also claims

his trial counsel was ineffective for not attempting to suppress his

confession in the second interview pursuant to the nonconstitutional,

evidentiary promise-of-leniency test favored in State v. McCoy, 692

N.W.2d 6, 28–29 (Iowa 2005).

      A three-judge panel of the court of appeals unanimously affirmed

Madsen’s convictions, concluding electronic recording is not required and

that Madsen’s confessions in both interviews were voluntary.          The
                                    10

appellate court rejected Madsen’s claim his confession was induced by

threats or a promise of leniency:

            Detective Chansler made statements and asked
      questions some of which when viewed individually or in
      some combinations might arguably be considered to be
      promises of leniency.    However, the exchanges between
      Chansler and Madsen that we have quoted, when taken as a
      whole, demonstrate that Chansler intended, and Madsen
      understood, that Chansler was referring to his investigation
      and was indicating only that when he became satisfied
      Madsen had disclosed everything relevant to the
      investigation that had transpired, then the investigation
      would be concluded. Chansler’s statements and questions
      gave no assurance that by cooperating with the investigation
      Madsen might gain in some manner relating to possible
      charges or punishment. We find no error in the district
      court’s determination that Madsen’s statements in the
      second interview were voluntarily made and therefore should
      not be suppressed.

We granted Madsen’s application for further review.

      II. Scope of Review.

      We review de novo Madsen’s constitutional challenges to the

admissibility of his confessions. We give deference to the district court’s

fact-findings because of its ability to assess the credibility of the

witnesses, but we are not bound by those findings. State v. Crawford,

659 N.W.2d 537, 541 (Iowa 2003). We review de novo Madsen’s claim his
trial counsel was ineffective. State v. Fannon, 799 N.W.2d 515, 520 (Iowa

2011).

      III. Failure to Electronically Record the First Interview.

      Madsen first made incriminating admissions when he was

interviewed by DHS employee Keller at her office with Detective Chansler

present.   This interview was not videotaped or audiotaped.        Madsen

contends the “failure to electronically record interrogations should render

them inadmissible.” We disagree. The district court correctly rejected

Madsen’s argument, stating, “While the fact that the interview was not
                                       11

recorded is bothersome to this court, it is not of such an egregious or

suspicious nature to require suppression of defendant’s statements.”

      Madsen on appeal relies on our statement in State v. Hajtic, “We

believe    electronic   recording,   particularly   videotaping,   of   custodial

interrogations should be encouraged, and we take this opportunity to do

so.” 724 N.W.2d 449, 456 (Iowa 2006) (emphasis added). In Hajtic, a

videotape of the confession assisted our de novo review in which we

rejected    the   defendant’s    arguments      that   his   self-incriminating

statements were made involuntarily due to his difficulty understanding

English.    The videotape enabled our court to observe the defendant’s

responses to questions in a manner that made clear he understood them.

Id.   We did not say in that case that unrecorded confessions were

inadmissible, and we decline Madsen’s invitation to take that step now.

As the court of appeals observed:

             The Hajtic decision, specifically refers to custodial
      interrogation. It is clear that Madsen was not in custody at
      the time of the first interrogation. Keller, an employee of
      DHS telephoned Madsen and left a voice message. Madsen
      returned her call and they set up an appointment at DHS
      offices in Fort Dodge.      The interview was described as
      “pleasant,” and lasted about one hour. Madsen was free to
      leave, and left at the end of the interview. Madsen was not
      deprived of his freedom in any significant way. While it
      would have been better if the interview had been recorded,
      we conclude that information obtained as a result of the
      interview was not inadmissible due to the lack of electronic
      recording.

(Citations omitted.)

      We reiterate our admonition in Hajtic encouraging videotaping of

custodial interrogations.     Since Hajtic was decided, “the use of video

recordings as evidence at trial has become a common practice . . . to

further the truth-seeking process.” People v. Kladis, 960 N.E.2d 1104,

1110 (Ill. 2011) (also recognizing videotape “objectively document[s] what
                                    12

takes place by capturing the conduct and the words of both parties”). We

also encourage electronic recording of noncustodial interviews when it is

practical to do so. But, because noncustodial interrogations occur under

a variety of circumstances, we decline at this time to adopt a per se rule

requiring electronic recording.   Madsen concedes his interview at the

DHS office was noncustodial. We hold the failure to electronically record

Madsen’s first interview does not render his confessions inadmissible.

     IV. Detective Chansler’s Alleged Threat to Make Madsen Late
For Work.

      Madsen argues he made involuntary admissions in his first

interview to avoid being late for work after Detective Chansler threatened

to keep him there all day until he told him what he wanted to hear. The

district court heard the testimony of Detective Chansler and DHS

employee Keller denying any pressure to continue the interview. Madsen

came and left voluntarily and departed ahead of the time he said he

needed to leave for work. The district court found Madsen’s admissions

in the first interview were voluntary and not the product of any threat or

coercion. We agree. It defies common sense that Madsen would confess

to class B felonies to avoid getting in trouble for being late for work. We

are not inclined to suspend disbelief in our de novo review of the record.

See United States v. Jacques, 784 F. Supp. 2d 48, 56 (D. Mass. 2011)

(finding confession voluntary because “it defies credulity to think that

Trooper Mazza told Defendant, and that Defendant believed, that

confessing to an arson would result in his immediate release from

custody”).

      V. Madsen’s Constitutional Voluntariness Claim.

      Madsen moved to suppress his statements to Detective Chansler in

the second interview as “involuntary” and “obtained in violation of . . .
                                     13

the 5th and 14th Amendments to the Constitution of the United States

and, the Constitution of Iowa, Article I, Section 8.”      We will apply the

same analysis to each constitutional provision. See In re Det. of Garren,

620 N.W.2d 275, 280 n.1 (Iowa 2000) (refusing to deviate from federal

analysis in considering state constitutional claim because appellant

“ha[d] suggested no legal deficiency in the federal principles . . . nor ha[d]

he offered an alternative test or guidelines”).

      For the reasons set forth in the next division of this opinion, we are

reviewing   the   promise-of-leniency     claim   under   our   common    law

evidentiary test. Because we hold Madsen’s confession that followed the

promise of leniency must be suppressed under that test, we do not

decide whether that part of his confession was involuntary under the

totality-of-the-circumstances test. We will address Madsen’s claim that

his confession which preceded the promise of leniency was involuntary

under the totality test, and we confine this analysis to the earlier part of

his confession.

      Under a constitutional totality-of-the-circumstances voluntariness

analysis, statements are voluntary if the defendant’s will is not overborne

or his capacity for self-determination is not critically impaired. State v.

Bowers, 661 N.W.2d 536, 541 (Iowa 2003).

      A number of factors help in determining voluntariness.
      Among them are: defendant’s age; whether defendant had
      prior experience in the criminal justice system; . . . whether
      deception was used; whether defendant showed an ability to
      understand the questions and respond; the length of time
      defendant was detained and interrogated; defendant’s
      physical and emotional reaction to interrogation; whether
      physical punishment, including deprivation of food and
      sleep, was used.

State v. Payton, 481 N.W.2d 325, 328–29 (Iowa 1992) (citations omitted).
                                    14

      The district court viewed the videotaped confession in ruling on

Madsen’s motion to suppress. The court ruled the videotaped confession

was admissible:

      This court’s impression was that Defendant discussed his
      involvement in the facts of the case in a matter-of-fact
      manner with the belief that he had done nothing wrong and
      was perfectly willing to voluntarily continue the
      conversation.    This court concludes that Defendant’s
      statements at this interview were voluntary and should not
      be suppressed.

      The district court reached the same conclusion after the jury
convicted Madsen and the court denied his motion for new trial:

      In reviewing the videotape of the interview, this Court was
      struck, not by any indication that the Defendant was under
      duress, but most by the fact that the Defendant appeared
      much at ease and that his statements to Detective Chansler
      were clearly voluntary. This Court likened the August 6,
      2008 interview to two men having a conversation on a park
      bench. For those reasons, this Court found no substance to
      the Defendant’s motion to suppress and the Defendant’s
      statements were deemed admissible at trial.

      Our own review of the videotape persuades us that Madsen’s

confession that preceded the promise of leniency was voluntary under

the totality of the circumstances. Madsen was thirty-five years old and a

graduate of a sixteen-week course at the Fort Lauderdale Police

Academy. He admittedly knew he was not in custody and was free to

leave or remain silent. Madsen remained calm throughout his interview.

The video does not depict a man whose will was overborne or whose

capacity for self-determination was impaired. Accordingly, Madsen was

not entitled to suppression of the part of his confession that preceded the

promise of leniency. We next consider whether Madsen’s confession that

followed the promise of leniency should have been suppressed under the

common law evidentiary test if his trial counsel had raised that issue.
                                      15

      VI. Madsen’s Ineffective-Assistance-of-Counsel Claim.

      On appeal, Madsen argues his trial counsel rendered ineffective

assistance by not attempting to suppress his recorded statements under

the nonconstitutional, evidentiary promise of leniency prohibition favored

in McCoy.     692 N.W.2d at 28–29.           The motion to suppress cited

constitutional authority and did not cite McCoy or otherwise develop the

evidentiary standard, nor did the district court address the evidentiary

test. The evidentiary standard was not preserved for direct appeal and

can only be reached under the ineffective-assistance framework.            See

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011) (“Ineffective-

assistance claims are an exception to our normal rules of error

preservation.”).

      “Ineffective-assistance-of-counsel claims have their basis in the

Sixth Amendment to the United States Constitution.”           State v. Vance,

790 N.W.2d 775, 785 (Iowa 2010). To establish an ineffective-assistance-

of-counsel claim, a claimant must prove by a preponderance of the

evidence “(1) his trial counsel failed to perform an essential duty, and

(2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 687–88,

104 S. Ct. 2052, 2064–65, 80 L. Ed. 2d 674, 693 (1984)). The claimant

must prove both elements by a preponderance of the evidence. King v.

State, 797 N.W.2d 565, 571 (Iowa 2011).

      A. Failure to Perform Essential Duty. To satisfy the first prong

of the Strickland test, Madsen must show that “counsel’s representation

fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.            In evaluating the

objective   reasonableness   of   trial    counsel’s   conduct,   we   examine

“whether, in light of all the circumstances, the identified acts or
                                    16

omissions were outside the wide range of professionally competent

assistance.”   Id. at 690, 104 S. Ct. 2066, 80 L. Ed. 2d at 695.         We

evaluate the attorney’s performance against “ ‘prevailing professional

norms.’ ” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (quoting

Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

      1. The evidentiary test for promises of leniency.      We have held

counsel breaches an essential duty when he does not attempt to

suppress a confession under our evidentiary test and the confessions

were induced in violation of that test.          McCoy, 692 N.W.2d at 29

(“[C]ounsel’s failure to [file a motion to suppress] constituted a breach of

an essential duty.”).   We find the record adequate to resolve Madsen’s

claim on direct review.    As noted in McCoy, there is “no strategic or

tactical reason for not filing the motion.” Id. at 27. This prong turns on

whether Detective Chansler induced Madsen’s statements in violation of

our evidentiary test for promises of leniency.

      In McCoy, we found officers impermissibly promised the defendant

leniency under our evidentiary test.             692 N.W.2d at 29.       We

distinguished the evidentiary test from the constitutional test and cited

to our cases that applied the evidentiary approach. Id. at 27–28 (citing

State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992); State v. Mullin, 249

Iowa 10, 14, 85 N.W.2d 598, 600 (1957)).           We recently applied this

evidentiary test in State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012).

Under our evidentiary test, a “ ‘confession can never be received in

evidence where the prisoner has been influenced by any threat or

promise.’ ” McCoy, 692 N.W.2d at 27 (quoting Mullin, 249 Iowa at 14, 85

N.W.2d at 600).

      2. The State’s invitation to abandon the evidentiary test.         The

federal courts use the totality-of-the-circumstances test to review
                                    17

promise of leniency issues.   See Arizona v. Fulminante, 499 U.S. 279,

285, 111 S. Ct. 1246, 1251–52, 113 L. Ed. 2d 302, 315 (1991).           The

State in this appeal urges us to use that approach for consistency and

for policy reasons:

            Iowa’s courts should rely on the constitutional “totality
      of the circumstances” test for several reasons. Under the
      evidentiary test, a confession may be excluded even if not
      induced by the officer’s improper promises. “A confession is
      like no other evidence.       Indeed, the defendant’s own
      confession is probably the most probative and damaging
      evidence that can be admitted against him.” Arizona v.
      Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 1257, 113
      L. Ed. 2d 302, 322 (1991). The jury should not be denied
      the use of such evidence without a real inquiry into the
      actual effect of any promise of leniency that may have been
      made.
            Although it may be difficult to “measure the force of
      the influence used or decide upon its effect on the mind” of a
      defendant, State v. Mullin, 85 N.W.2d 598, 600 (Iowa 1957),
      the court should be able to sift the evidence and determine
      whether an alleged promise of leniency actually led the
      defendant to confess. . . .
             Use of the evidentiary approach in connection with
      allegations   of    promissory    leniency   can    lead     to
      inconsistencies. Such an approach places Iowa courts at
      odds with federal courts, in which the constitutional “totality
      of the circumstances” test is used and a promise of leniency
      is only one factor to be considered in determining whether a
      defendant’s statement is voluntary. See, e.g., United States
      v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000); United States
      v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997). The legal
      standards applicable to a particular defendant’s case
      therefore would depend on whether he or she is charged in
      federal or state court. In addition, within Iowa’s court
      system, the legal standard applicable to a defendant’s claim
      of involuntariness would depend on whether he or she
      alleged promissory leniency or another type of compulsion,
      such as physical brutality or deprivation of food, water, or
      sleep. When a defendant claims that his or her confession
      has been extracted by compulsion, the legal framework
      applicable to the claim should not depend on the specific
      type of compulsion at issue.
            Because application of the evidentiary approach can
      lead to both exclusion of highly probative evidence that may
      not have been obtained through compulsion and
      inconsistencies in how claims of involuntariness are treated,
                                     18
      Iowa’s courts should employ the constitutional totality of the
      circumstances test.

      We agree these are good reasons for using the totality-of-the-

circumstances test in lieu of the evidentiary, common law per se

exclusionary rule. But, we note the evidentiary rule has the advantage of

clarity and is a better deterrent against police misuse of threats and

promises of leniency to obtain confessions. Courts and commentators

have long recognized promises of leniency can induce false confessions

leading to wrongful convictions of the innocent. In Mullin, we observed:

      Wigmore says . . . the query is, “Was the inducement such
      that there was any fair risk of a false confession?” Were the
      statements made to the accused strong enough so that it
      could in reason be determined that the prisoner would lie
      and say he was guilty when he was not, so as to gain some
      special favor?
             While it is hard to believe that a person would admit
      false facts showing his guilt without greater assurance than
      is sometimes held sufficient to make inadmissible alleged
      confessions, the courts feel compelled to go to the extreme to
      protect the weak or confused innocent party who may feel
      his chances of establishing his innocence are too remote to
      turn down what appears to be an assurance of leniency if he
      will confess to the crime of which he is accused. It seems
      more reasonable to assume that before an accused would
      falsify bad conduct for good conduct, he would demand some
      fairly specific assurance or promise of leniency, which is the
      obvious reason for the many decisions that a mere statement
      by an officer that it would be better or wiser to tell the truth,
      is not such an assurance or inducement as to make a
      statement by accused inadmissible. However, when the
      officer or officers go further and explain just how it will be
      better or wiser for the accused to speak, these statements
      may suddenly become more than an admonishment and
      assume the character of an assurance or promise of special
      treatment which may well destroy the voluntary nature of
      the confession in the eyes of the law.

249 Iowa at 16, 85 N.W.2d at 601–02 (quoting 3 Wigmore on Evidence

§§ 823–24 (3d ed. 1940)).

      In McCoy, we also reiterated that “ ‘the law cannot measure the

force of the influence used, or decide upon its effect upon the mind of the
                                            19

prisoner, and therefore excludes the declaration if any degree of

influence by force or other inducement has admittedly been exerted upon

him.’ ” 692 N.W.2d at 27 (quoting Mullin, 249 Iowa at 14, 85 N.W.2d at

600 (internal quotation marks omitted)).                     The use of a per se

exclusionary rule eliminates the need for the court to attempt to read the

mind of defendant to determine if his confession, in fact, was induced by

or made in reliance upon the promise of leniency.

       The State previously invited us to abandon the evidentiary test in

McCoy, and we declined to do so. In McCoy, we noted the district court

had applied the evidentiary test and “the State filed no post-hearing

motion asking the [district] court to employ the federal totality-of-the-

circumstances test.” Id. at 28. Thus, the issue was not preserved. The

State faces no such obstacle here: the district court used the totality-of-

the-circumstances        test    in   ruling     that   Madsen’s       confession      was

admissible, and it was Madsen’s trial counsel that failed to argue for the

evidentiary test in district court.          On balance, however, we favor the

evidentiary test as the better deterrent against promises of leniency that

can lead to wrongful convictions. 1

       Accordingly, we decline the State’s invitation to abandon the
evidentiary test in favor of the totality-of-the-circumstances test.

       3. Application of the evidentiary test. Our court has not previously

addressed whether a threat of adverse publicity in the newspaper or a

promise to avoid newspaper coverage would render a subsequent


       1District  courts should first employ the evidentiary test to determine the
admissibility of confessions challenged on grounds of a promise of leniency. If
application of the evidentiary test requires suppression of the confession, the district
court need not also apply a totality-of-the-circumstances test. If the district court finds
the evidentiary test does not require exclusion, it should still employ the totality-of-the-
circumstances test to ensure the State has met its burden of establishing that
defendant’s confession was voluntary.
                                     20

confession involuntary.     In this case, Chansler’s statements about

newspaper coverage were combined with statements including, “you

want this to go away . . . you want this to be done with.”         Chansler

thereby implicitly conveyed the message that by confessing Madsen could

avoid public charges against him.

      In Polk, we held “the [officer] crossed the line by combining

statements that county attorneys ‘are much more likely to work with an

individual that is cooperating’ with suggestions [the defendant] would not

see his kids ‘for a long time’ unless he confessed.” 812 N.W.2d at 676.

In McCoy, we required a new trial because the defendant confessed after

the detective told him twenty-five times that “if he didn’t pull the trigger,

he wouldn’t be in any trouble.” 692 N.W.2d at 28. In Quintero, we held

the police improperly coerced defendant’s confession by threatening that

his sixteen-year-old nephew would be tried as an adult and sent to

prison unless he cooperated. 480 N.W.2d at 50, 52. In State v. Kase, we

reversed a conviction because the defendant confessed after a Division of

Criminal Investigation agent told her “that if she told him what she knew

about Vaughn’s death and signed a consent to search her apartment no

criminal charges would be filed against her; otherwise, she was told, she

would be charged with murder.” 344 N.W.2d 223, 226 (Iowa 1984). In

State v. Hodges, we held that defendant’s confession was inadmissible

when he was told “that a lesser charge would be much more likely if he

gave ‘his side of the story.’ ”   326 N.W.2d 345, 349 (Iowa 1982).        In

Hodges, we offered some parameters:

             An officer can ordinarily tell a suspect that it is better
      to tell the truth.     The line between admissibility and
      exclusion seems to be crossed, however, if the officer also
      tells the suspect what advantage is to be gained or is likely
      from making a confession.             Ordinarily the officer’s
                                     21
      statements then become promises or assurances, rendering
      the suspect’s statements involuntary.

Id. (citing Mullin, 249 Iowa at 16–17, 85 N.W.2d at 601–02).

      We find the detective’s interrogation techniques impermissibly

promised Madsen leniency.       Detective Chansler suggested to Madsen

that his confession was necessary “for this case to get wrapped up” and

to keep his name out of the newspaper:

             Q. Well here is what I need from you okay . . . in order
      for this case to get wrapped up, in order for you to go along
      with your life I have to know everything.
             ....
            Q. You don’t want your family . . . your job to open
      the Messenger and see your photograph and see my name
      saying that you’re under investigation for this, this, this . . .
      you want it over with now, right?
             ....
            Q. Well you’ve got to . . . you’ve got to come clean on
      everything.

The statements threatened Madsen with an adverse newspaper story if

he did not tell Chansler “everything.”        Chansler’s statements also

communicated to Madsen there was “an advantage . . . to be gained” if he

confessed.   See id.   The investigation would “get wrapped up” quickly,

Madsen could “go along with [his] life,” and he could avoid newspaper

publicity that would humiliate him in the community. The statements

flunk our evidentiary test for a promise of leniency.
      Accordingly, Madsen’s counsel breached an essential duty by not

moving to suppress statements made after the impermissible promises

under the evidentiary promise-of-leniency test.

      B. Prejudice.     Madsen must also establish counsel’s deficient

performance prejudiced him. Prejudice exists if “ ‘there is a reasonable

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

proceeding would have been different.’ ”     State v. Graves, 668 N.W.2d
                                     22

860, 882 (Iowa 2003) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698).         A “reasonable probability” means a

“substantial,” not “just conceivable,” likelihood of a different result. King,

797 N.W.2d at 572. Counsel’s error must “undermine our confidence in

the verdict.” Id. at 575.

      Importantly, the State did not admit Madsen’s entire interview into

trial evidence. The State only admitted ten video clips of the interview

ranging from seconds to several minutes.        Detective Chansler testified

about the statements contained on the video, the State cross-examined

Madsen as to the video statements, and prosecutors incorporated the

video clips into closing argument. The first two clips contained Madsen’s

admission that he measured D.M.K.’s penis with a ruler.                These

statements were properly admitted into evidence because Madsen made

the statements before the detective’s promise of leniency. See Mullin, 249

Iowa at 17, 85 N.W.2d at 602 (requiring threat or promise of leniency to

precede confession). The remaining clips contained admissions made by

Madsen after the detective engaged in improper questioning. Video clips

three through ten contained statements by Madsen that he walked

around naked while D.M.K. was at his apartment, that D.M.K.

masturbated him for several minutes while the two laid in bed watching

TV, that he did not tell the boys’ parents that their sons engaged in

sexual activities at his house, and that the sexual activity at his house

was “something different, something wild.”

      We must decide whether the admission of the statements

contained in video clips three through ten prejudiced Madsen. The jury

convicted Madsen on three counts. We review each count separately.

      1. Count I. Count I charged Madsen with second-degree sexual

abuse in violation of Iowa Code section 709.3(2), alleging Madsen
                                     23

directed D.M.K. to touch his genitals. Jury Instruction No. 9 required

the jury to find:

            1. Between July 1, 2005 and July 31, 2008, the
      Defendant did commit a sex act with a child, by engaging in
      hand (D.M.K.) to genitalia (Defendant) contact with D.M.K.
           2. The Defendant performed the sex act while D.M.K.
      was under the age of twelve (12) years old.

“Sex act” is defined as “any sexual contact between two or more persons

by: . . . contact between the finger or hand of one person and the

genitalia or anus of another person.”     Iowa Code § 702.17.       We have

stated whether a “sex act” has occurred is a fact question for the jury

that can “be determined from the type of contact and circumstances

surrounding it.” State v. Pearson, 514 N.W.2d 452, 455–56 (Iowa 1994).

      D.M.K. testified he masturbated Madsen at Madsen’s direction.

D.M.K. stated Madsen “took my hand and jacked himself off” and that

Madsen’s penis was “hard.” This testimony was corroborated by more

than four minutes of impermissible video clips that showed Madsen

explaining how D.M.K. masturbated him.          Video clips numbers six,

seven,   and    eight   contain   admissions   by   Madsen   that    D.M.K.

masturbated him for several minutes while the two watched television.
Madsen admitted his penis was erect.

      While the jury may have found D.M.K. to be a credible witness, the

admissions contained in the video clips made conviction for this count

virtually certain. The statements removed any reasonable doubt effective

cross-examination of D.M.K. could create. In fact, Madsen’s counsel did

not even attempt to impeach D.M.K. as to this testimony.        Given the

undeniably persuasive value of Madsen’s four-minute confession, we find

there is a “reasonable probability” the jury would have returned a
                                     24

different verdict as to Count I if tapes six, seven, and eight were not

admitted into evidence.

      2. Count II. Count II charged Madsen with lascivious acts with a

child in violation of Iowa Code section 709.8(1), for measuring D.M.K.’s

penis with a ruler. Section 709.8(1) makes “it unlawful for any person

sixteen years of age or older” to “[f]ondle or touch the pubes or genitals of

a child” “for the purpose of arousing or satisfying the sexual desires of

either of them.” Jury Instruction No. 10 required the jury to find:

            1. Between July 1, 2005 and July 31, 2008, the
      Defendant did fondle or touch the genitals of D.M.K., a child,
      with or without the child’s consent, by measuring D.M.K.’s
      penis with a ruler.
           2. The Defendant did so with the specific intent to
      arouse or satisfy the sexual desires of the Defendant or
      D.M.K.
            3. The Defendant was then eighteen (18) years of age
      or older.
             4.   D.M.K. was under the age of fourteen (14) years
      old.

      D.M.K. testified Madsen just “put [the ruler] up to my penis and

measure[d] it.” D.M.K. testified he did not ask Madsen to measure his

penis and that Madsen “would just pull down my pants.” Madsen had
the ruler at his house and according to D.M.K. called it the “peter meter.”

D.M.K.’s sister testified D.M.K. told her about the “peter meter.” D.M.K.’s

brother, D.K., testified Madsen “would pull down me and my brother’s

pants and he would measure us” and that “he would do it on his own.”

D.K. testified he saw Madsen hold D.M.K.’s penis while he measured it.

The State also admitted two video clips from Madsen’s police interview.

      The video clips contain statements Madsen made before Detective

Chansler’s impermissible questioning. The first tape lasted thirty-three

seconds:
                                     25
            Q. All right man . . . when we spoke to you last you
      gave us the information about the measuring . . . move this
      over here so they can hear both of us . . . about the
      measuring of the penises . . . . A. I’m saying that was poor
      judgment on my part but still I mean . . . .
           Q. Okay. A. I don’t feel I really did anything all that
      wrong. I mean nothing was . . . I guess it really doesn’t
      matter now but . . . .
The second tape contained sixteen seconds of conversation:

             Q. . . . And when you said that you helped him you
      had mentioned you slid it in . . . how did you do that?
      Describe that . . . I mean on the bottom of his penis . . . on
      the top . . . I mean . . . A. I put the rule under . . . you know
      like this and you know measured it.

Gestures on the video accompanying this discussion make clear Madsen

admitted touching his hand on D.M.K.’s penis while measuring it with

the ruler.   This confession preceded the promise of leniency and is

therefore admissible. Mullin, 249 Iowa at 17, 85 N.W.2d at 602.

      Overwhelming evidence, therefore, establishes Madsen’s guilt

under Count II. The admissible evidence allowed the jury to find Madsen

measured D.M.K.’s penis with the “specific intent to arouse or satisfy

sexual desires.” D.M.K. and D.K. both testified Madsen pulled D.M.K.’s

pants down to measure D.M.K.’s penis. The boys testified to a sexually
charged atmosphere, each stating Madsen “jacked off” in front of them.

D.M.K.’s sister testified D.M.K. told her he slept naked on Madsen’s

couch. Madsen cannot show suppression of the inadmissible statements

would create a “substantial” likelihood the jury would acquit him on this

count.    Counsel’s deficient performance does not undermine our

confidence in the jury’s verdict on Count II.

      3. Count III. Count III charged Madsen with second-degree sexual

abuse in violation of Iowa Code section 709.3(2), for touching D.M.K.’s

genitals. Jury Instruction No. 11 required the jury to find:
                                    26
            1. Between July 1, 2005 and July 31, 2008, the
      Defendant did commit a sex act with a child, by engaging in
      hand (Defendant) to genitalia (D.M.K.) contact with D.M.K.
           2. The Defendant performed the sex act while D.M.K.
      was under the age of twelve (12) years old.

D.M.K. testified to the following exchange:

            Q. Did [Madsen] ever touch your wiener? A. Yes.
            Q. What did he do? A. Jacked me off.
           Q. So he took his hand and put it on your wiener?
      A. Yes.
           Q. Did he do the same motion that you made earlier?
      A. Yes.
            Q. When he touched your wiener, did he do that more
      than once? A. More than once.
            ....
           Q. Tell me what you mean by more than once?
      A. Every time I was over there, he would do it.
            Q. So it happened pretty often; right? A. Yes.
           Q. After that started happening, did you tell anybody?
      A. No.
            Q. Why? A. Because I was scared.

      None of the eight inadmissible video clips contain admissions by

Madsen that he masturbated D.M.K.             We also do not believe the

inadmissible video clips contaminated the jury’s verdict as to this count.

Neither Count III nor Count IV, which alleges oral sex, was corroborated

by the inadmissible statements in the video clips.     D.M.K. testified to

both the masturbation and oral sex on direct examination.        The jury

acquitted Madsen on Count IV, but convicted Madsen on Count III. The

acquittal resulted from counsel’s effective cross-examination of D.M.K.’s

oral-sex testimony.    During cross-examination, D.M.K. admitted he

denied Madsen performed oral sex on him during a deposition and in an

interview with Detective Chansler. The acquittal shows the jury did not
                                    27

rely on the inadmissible evidence to convict Madsen for charges

unrelated to the inadmissible statements.

      Madsen’s counsel, however, did not attempt to impeach D.M.K.’s

testimony that Madsen masturbated him.              The jury found D.M.K.’s

uncorroborated and unimpeached testimony that Madsen masturbated

him to be credible. The inadmissible statements regarding other acts do

not undermine our confidence in the jury’s verdict for Count III. Madsen

cannot show suppression of the video clips would create a “reasonable

probability” of a different outcome on Count III.

      For these reasons, we find Madsen established the requisite

prejudice as to Count I alone.     Madsen’s conviction and sentence for

Count I must be reversed. Madsen’s convictions for Counts II and III are

affirmed.

      VII. Resentencing.

      The district court imposed consecutive sentences of the maximum

twenty-five-year prison term allowed for each of Madsen’s convictions for

sexual abuse in the second degree (Counts I and III) and a ten-year term

for lascivious acts with a child (Count II) for a total sentence of sixty

years. The reversal of his conviction and sentence on Count I would still

leave Madsen sentenced to a twenty-five-year and a ten-year term on the

convictions affirmed on appeal to be served consecutively for a total of

thirty-five years, a punishment within the district court’s discretion.

However, the district court considered the fact Madsen was convicted on

three counts when imposing the consecutive maximum sentences. On

this record, we believe it is appropriate to remand for resentencing on

Counts II and III. See State v. Gibb, 303 N.W.2d 673, 687–88 (Iowa 1981)

(remanding for resentencing upon reversal of one conviction when the

district “court considered the fact of three convictions in imposing all
                                     28

three sentences”); see also State v. Keutla, 798 N.W.2d 731, 735 (Iowa

2011) (noting our discretion to remand for resentencing, even when

sentences are severable, and concluding it is appropriate to do so upon

reversal of part of a combined sentencing arrangement viewed “as an

interconnected package”). “We do not suggest what the sentence should

be as that determination lies within the discretion of the trial court.”

Gibb, 303 N.W.2d at 688. The district court may defer resentencing on

those counts until after the retrial on Count I.

      VIII. Disposition.

      We affirm Madsen’s convictions for Counts II and III but remand

for resentencing as to those counts. We reverse Madsen’s conviction and

sentence for Count I and remand for a new trial on that count. Costs are

taxed two-thirds to the defendant, one-third to the State.

      COURT OF APPEALS DECISION VACATED; JUDGMENT OF

DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND

CASE REMANDED.

      All justices concur except Mansfield, J., who takes no part.
