                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0435
                            Filed September 25, 2019


DUSTIN LEE TRUAX,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      The applicant appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Kevin Hobbs, West Des Moines, for appellant.

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

Attorney General, for appellee State.



      Considered by Potterfield, P.J., and May and Greer, JJ.
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POTTERFIELD, Presiding Judge.

      Dustin Truax appeals from the denial of his application for postconviction

relief (PCR). In 2012, a jury convicted Truax of two counts of lascivious acts with

a child. See Iowa Code § 709.8 (2009). He was later sentenced to serve two

consecutive ten-year terms of imprisonment.

      Truax filed a direct appeal, in which his only challenge was the sentence

imposed by the district court.    See State v. Truax, No. 13-0242, 2014 WL

970034, at *1 (Iowa Ct. App. Mar. 12, 2014). He argued the court failed to give

adequate reasons for imposing consecutive sentences. A panel of our court

affirmed the sentence, and procedendo issued in June 2014.

      Truax filed his PCR application in October 2015. He amended it once

before it came on for hearing in January 2018. Truax maintained the underlying

trial information charged him with two class “D” felonies, which were improperly

amended to two class “C” felonies after trial but prior to sentencing. He also

claimed his trial and appellate counsel provided ineffective assistance in a

number of ways. The PCR court denied the petition in its entirety.

      On appeal, Truax renews most of his PCR claims. He challenges the

amendment to the trial information and urges us to find trial and appellate

counsel ineffective, arguing the following errors: failing to object to vouching,

hearsay, and more-prejudicial-than-probative evidence; poor performance at trial

due to substandard trial preparation; and failure to object to prosecutorial

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

Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018). That being said, we review

constitutional claims, such as ineffective assistance of counsel, de novo. Id.

       We begin with Truax’s claim that the trial information was improperly

amended, changing the offenses Truax was charged with from two class “D”

felonies to two class “C” felonies. As Truax notes, in ruling on his direct appeal,

our court stated in passing that the description of the charges against Truax as

“D” felonies in the trial information “was a scrivener’s error.” Truax, 2014 WL

970034, at *1 n.1. Relying on that statement, the PCR court refused to address

Truax’s claim.

       Here, Truax continues to argue that either the trial information was never

amended or, at the least, that it was not properly amended. But we iterate our

previous statement that the error in the description was simply a scrivener’s

error, which does not rise to the level of due process violation that Truax claims.

       Iowa Code section 709.8 provides:

                It is unlawful for any person sixteen years of age or older to
       perform any of the following acts with a child with or without the
       child’s consent unless married to each other, for the purpose of
       arousing or satisfying the sexual desires of either of them:
                1. Fondle or touch the pubes or genitals of a child.
                2. Permit or cause a child to fondle or touch the person’s
       genitals or pubes.
                3. Solicit a child to engage in a sex act or solicit a person to
       arrange a sex act with a child.
                4. Inflict pain or discomfort upon a child or permit a child to
       inflict pain or discomfort on the person.
                Any person who violates a provision of this section involving
       an act included in subsection 1 or 2 shall, upon conviction, be guilty
       of a class “C” felony. Any person who violates a provision of this
       section involving an act included in subsection 3 or 4 shall, upon
       conviction, by guilty of a class “D” felony.
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While the trial information at issue states the charges were class “D” felonies,

each count alleges that Truax, “[f]or the purpose of arousing or satisfying the

sexual desires of either of them fondle or touch the pubes or genitals of a child

OR permit or cause a child to fondle or touch the person’s genitals or pubes.”

These allegations fall within section 709.8(1) and (2), which are explicitly defined

as class “C” felonies by the statute. Moreover, the minutes of evidence attached

to the trial information support the charges under section 709.8(1) and (2). At

other times in the underlying case—including the original criminal complaints that

were filed and a plea deal offered to Truax by the State—the charges were

correctly described as class “C” felonies. The inaccurate description in the trial

information of the “level” of crimes did not prevent Truax from knowing what

charges he was facing nor what the allegations against him involved. And Truax

does not claim that he was unaware of the amount of time he could be required

to serve if convicted or that his strategy would have changed—such as entering

into the plea agreement—if the charges were accurately described. The error

was merely clerical in nature. See State v. Holmes, No. 12-2312, 2013 WL

6405363, at *2 (Iowa Ct. App. Dec. 5, 2013) (denying defendant’s claim his

sentence was illegal when the sentencing order referenced nonexistent code

sections; finding the error was merely clerical in nature and noting the defendant

“does not claim here, nor did he in his pro se motion, that he was unaware what

crime he was charged with . . . and what specific elements were involved in the

State’s theory of prosecution at his trial”).   And “[n]o indictment is invalid or

insufficient, nor can the trial, judgment, or other proceeding thereon be affected
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by reason of any defect or imperfection in a matter of form which does not

prejudice a substantial right of the defendant.” Iowa R. Crim. P. 2.4(7).

       Next, we consider Truax’s claims of ineffective assistance. He raises a

number of specific claims but generally fails to argue how these alleged failures

of counsel caused him to suffer prejudice.        It is up to Truax to prove “a

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

the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 694 (1984). Pointing out alleged errors by counsel is not enough, as we

begin with the presumption that “counsel’s actions were reasonable under the

circumstances and fell within the normal range of professional competency.”

State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).            We may dispose of a

ineffective-assistance-of-counsel claim when Truax fails to proves either the

breach-of-duty prong or the prejudice prong. See id.

       Truax places his various claims in three groups: (1) improper vouching by

an expert witness, (2) cumulative errors by trial counsel, and (3) prosecutorial

misconduct.

       Within his first grouping, Truax argues his trial and appellate counsel were

ineffective when they failed to object to vouching testimony by the forensic

interviewer who interviewed both complaining witnesses. But Truax did not first

get a ruling on this issue by the PCR court, and he does not claim his PCR

counsel was ineffective. Therefore, this claim has not been preserved for our

review. See Archer v. State, No. 12-0995, 2013 WL 4769344, at *3 (Iowa Ct.

App. Sept. 5, 2013) (determining the applicant’s claim was not preserved for

review because it “was not ruled upon by the [PCR] court, and [the applicant]
                                          6


d[id] not raise it within the context of a claim of ineffective assistance of

postconviction counsel”).

       Additionally, Truax maintains his trial counsel should have objected to the

handwritten notes from the students’ counselor that were taken when S.M. first

made the allegation of abuse. The notes state, “Mom’s former boyfriend touched

[S.M.] (and she claims [her sister]) on her private parts—with his hands and

penis. She did not tell Mom because she was scared. Mom is not with him

anymore. It happened more than once. He just left them this month.” The PCR

court determined the handwritten notes were not hearsay, as they were likely

offered to explain the counselor’s subsequent actions and the initiation of the

case—not the truth of the matter asserted. See State v. Elliott, 806 N.W.2d 660,

667 (Iowa 2011) (“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.” (citation omitted)). Truax does not point out an error in the

court’s ruling. Instead, he changes tack and argues the handwritten notes should

have been excluded because the probative value is substantially outweighed by

the danger of unfair prejudice. See Iowa R. Evid. 5.403. And, no matter the

theory of why the evidence should have been objected to and ultimately

excluded, he does nothing to link the admission of the evidence he complains of

and the result of his trial. Truax has failed to establish either breach of duty or

prejudice; these claims fail.

       Next, we consider Traux’s claims of ineffective assistance involving trial

counsel’s “series of mistakes at trial and in preparation for trial.” Truax alleges

trial counsel violated his duty by not taking the depositions of the complaining
                                         7


witnesses; failing to challenge the amendment of the trial information from class

“D” felonies to class “C” felonies; advising Truax not to testify in his own defense;

incorrectly referencing Truax’s “plea of guilty”—as opposed to “not guilty”—during

closing argument; and failing to file a bill of particulars to clarify the charges

against Truax.    While Truax’s trial counsel did not depose the complaining

witnesses, one of Truax’s prior counsel did.        And Truax does not provide

explanation of why a second round of depositions was necessary. As we already

indicated, the misstatement in the trial information was a scrivener’s error;

counsel’s failure to challenge or address the error earlier in the proceedings was

not prejudicial to Truax. And a bill of particulars, when it was clear with what

crimes Truax was charged and under what theory, is not necessary. See State

v. Watkins, 659 N.W.2d 526, 533 (Iowa 2003) (“A bill of particulars should be

allowed when the charge and minutes do not sufficiently inform the defendant of

the criminal acts of which she is accused.”).       Insofar as Truax argues trial

counsel “pressured” him not to testify at trial, the PCR court ruled that counsel’s

advice not to testify was a trial strategy that fell within professional norms, as

counsel based his advice on the fact that Truax had prior, impeachable offenses

the jury would then learn about and counsel’s concern that the prosecutor’s

reiterating the testimony of the complaining witnesses with Truax on the stand—

even with Truax’s denials—would be more detrimental than helpful to Truax’s

defense. On appeal, Truax does not articulate how this ruling is in error; he also

does not explain how his decision not to testify resulted in prejudice. Finally,

while counsel misspoke when he referenced Truax’s “plea of guilty” during

closing argument, he immediately corrected the error, stating, “But by my client’s
                                          8


plea of guilty, by him coming in here and pleading—or by my client’s plea of not

guilty, I better fix that—he is denying the most important parts of these—of these

elements of the offense.” We cannot say, and Truax has offered no authority to

support, that counsel’s inadvertent reference to a guilty plea, which counsel then

immediately corrected, prejudiced Truax. These claims of ineffective assistance

fail.

         Finally, we consider Truax’s claim that he received ineffective assistance

from trial counsel because counsel failed to object to prosecutorial misconduct

when the prosecutor, during closing argument, improperly asserted her personal

opinion. The prosecutor stated, “I would like you to take all of the information

that you heard in this courtroom and take the law that the judge gave you and

take your common sense and go into the jury room and talk about it. Talk about

the law. Talk about the facts. And find the defendant guilty on both counts;

count I and count II of lascivious acts with a child.” We agree with the PCR court

that the prosecutor’s statement did not constitute prosecutorial misconduct. She

did not express a personal belief or imply personal knowledge about the

defendant’s guilt or innocence. See State v. Vickroy, 205 N.W.2d 478, 750 (Iowa

1973).     It is not improper for a prosecutor to indicate a belief the evidence

admitted at trial supports the charged offense.      See State v. Shanahan, 712

N.W.2d 121, 139 (Iowa 2006) (finding the prosecutor’s statement was not

misconduct because it was “nothing more than the prosecutor’s belief the

evidence would support the charge”). Moreover, the statements are not the type

to cause the jury to decide the case on emotion rather than a dispassionate

review of the evidence. See State v. Graves, 668 N.W.2d 860, 875 (Iowa 2003).
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Because the prosecutor did not engage in misconduct, we need not consider

whether counsel was ineffective for not objecting to the remarks.       See, e.g.,

Martin v. State, No. 12-2240, 2014 WL 69542, at *8–9 (Iowa Ct. App. Jan. 9,

2014) (recognizing the applicant’s claim of ineffective assistance based on failure

to object to prosecutorial misconduct necessarily collapses if the claim of

prosecutorial misconduct cannot be proved).

       Having considered each of Truax’s claims, we agree with the PCR court

that no relief is warranted. We affirm.

       AFFIRMED.
