                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2002
                                  Filed April 5, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK WESLEY BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Keokuk County, Randy S.

DeGeest, Judge.



      A defendant challenges his conviction. CONVICTION CONDITIONALLY

AFFIRMED;      RULING      ON      MOTION       VACATED;   REMANDED     WITH

DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.

         Mark Brown appeals his conviction for sexual abuse in the second degree,

in violation of Iowa Code sections 709.1 and 709.3 (2014). Brown claims his trial

counsel was ineffective in failing to file a motion to suppress, or object to, the

admission of statements Brown made while being questioned by law

enforcement. Brown also asserts the district court applied the wrong standard in

ruling on his motion for new trial. We conclude Brown was not prejudiced by his

counsel’s performance, but we agree the district court applied the incorrect

standard when ruling on Brown’s motion for a new trial.            Accordingly, we

conditionally affirm Brown’s conviction but remand for application of the proper

standard to Brown’s motion for a new trial.

         I.     Background Facts and Proceedings

         In May 2013, law enforcement was contacted concerning an allegation

Brown had sexually abused a minor.           Following an interview with the victim,

police obtained a search warrant for an apartment Brown was staying at and

seized computer equipment Brown used to show pornography to the victim.

While executing the warrant, law enforcement located Brown walking down the

street and asked if he would be willing to accompany them to city hall. Brown

agreed.

         At city hall, law enforcement informed Brown of his Miranda rights and

provided him with a written copy. Following Brown’s written waiver, the officers

began questioning Brown.1 Over the first eighty minutes of the interview, Brown

and the officers discussed the general events surrounding the allegations,

1
    The questioning was recorded on video.
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eventually drilling down to the specifics of the allegations. After being shown the

search warrant, Brown asked, “Can I get a lawyer?” One officer responded,

“Sure.” The officer then searched Brown’s bag and asked, “So do you want to

continue talking to us about this?” Brown responded, “We can continue talking

but there is really nothing else to say.” Over the next thirty minutes, Brown

denied that he had committed any inappropriate acts. He also discussed various

topics unrelated to the allegations with the officers. Brown then left the building.

       On December 2, 2014, the State charged Brown with one count of sexual

abuse in the second degree. The video recording of the interview with Brown

was admitted at the bench trial.      The court found Brown guilty as charged.

Brown filed a motion for a new trial, which claimed the district court had admitted

improper evidence. In ruling on Brown’s motion, the court stated:

              The court has—prior to this date, I have reviewed the
       motions and the resistance. I’ve reviewed Iowa’s Rules of Criminal
       Procedure 2.242(6). Also reviewed State v Robinson and reviewed
       the motion and applied the standard of review that is set forth in
       State v Robinson, and I’ve reviewed it in the light more favorable to
       the State without regard to contradictions and inconsistencies and
       assisted by all reasonable inferences.
              By any standard that I look at the Motion for New Trial, I
       must state that I cannot grant it. There is substantial evidence in
       the record. This Court is the one that entered the ruling. I believe
       it’s beyond a reasonable doubt, and so I am going to deny the
       motion for a new trial at this time.
              And I’ve applied that standard as set forth in State v
       Robinson, 288 N.W.2d 337 (Iowa 1980).

Brown appeals.

       II.    Standard of Review

       “[W]e review claims of ineffective assistance of counsel de novo.”

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). When a defendant claims
                                         4


the district court applied the incorrect standard to a motion for new trial, we

review the claim for errors at law. State v. Root, 801 N.W.2d 29, 30 (Iowa Ct.

App. 2011).

       III.   Ineffective Assistance of Counsel

       Brown claims his counsel was ineffective in failing to file a motion to

suppress, or object to, the admission of a portion of the statements he made

while being questioned by law enforcement.         Brown asserts the portion that

should have been suppressed came after he unequivocally invoked his right to

counsel or, in the alternative, after he equivocally invoked his right to counsel and

law enforcement was required to ask him clarifying questions prior to proceeding

with questioning.   The State responds that Brown’s mention of counsel was

equivocal and the officers were not required to clarify; therefore, Brown’s counsel

did not fail to perform an essential duty. Additionally, the State claims Brown was

not prejudiced by the admission of the statements made after his mention of

counsel.

       “In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). In

regards to the first prong, we consider the totality of the circumstances and

evaluate counsel’s performance against the standard of a reasonably competent

practitioner. Id. at 195–96. To show prejudice, a defendant must demonstrate “a

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

of the proceeding would have been different.” Bowman v. State, 710 N.W.2d

200, 203 (Iowa 2006). Both prongs must be proven by a preponderance of the
                                         5


evidence, but “if the claim lacks the necessary prejudice, we can decide the case

on the prejudice prong of the test without deciding whether the attorney

performed deficiently.” Maxwell, 743 N.W.2d at 196.

       Assuming, without deciding, counsel failed to perform an essential duty by

not filing a motion to suppress, or objecting to, the admission of Brown’s

statements after he spoke of wanting an attorney, we conclude Brown was not

prejudiced by his counsel’s performance. In reaching its verdict, the district court

found the victim’s testimony credible and consistent with the testimony of other

witnesses. On the other hand, the court found Brown’s testimony not credible, in

that it was inconsistent and omitted details that reflected poorly on Brown.

Further, there is no indication the court considered the statements Brown made

after his purported invocation of his right to counsel in reaching its verdict, and

our review of the videotape indicates that the statements Brown made after that

point in time were largely innocuous small talk and not prejudicial to his defense

of a general denial. In light of these facts, we conclude there is no reasonable

probability the outcome of Brown’s trial would have been different absent his

counsel’s alleged errors.    Therefore, we reject Brown’s claim of ineffective

assistance of counsel.

       IV.    Motion for a New Trial

       Brown asserts the district court applied the incorrect standard in ruling on

his motion for a new trial and requests a remand with direction to apply the

proper standard. The State agrees a remand is necessary.

       In ruling on a motion for a new trial, district courts are required to

determine whether the verdict is against the weight of the evidence. State v.
                                         6

Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Here, the district court relied on the

standard set forth in State v. Robinson—a case in which the defendant

challenged the sufficiency of the evidence supporting his guilty verdict, and our

supreme court applied a substantial-evidence review.        288 N.W.2d 337, 338

(Iowa 1980).

       We agree the case must be remanded to the district court for application

of the proper weight-of-the-evidence standard as required by Ellis. See Root,

801 N.W.2d at 31 (“While we place great confidence in the district court’s

experience in utilizing the differing standards, we have repeatedly remanded to

make certain the proper standard was applied and reflected in its ruling.”).

       V.      Conclusion

       We conclude Brown was not prejudiced by any alleged errors by his

counsel and, therefore, reject Brown’s claim of ineffective assistance of counsel.

However, because the district court applied the incorrect standard, we vacate the

district court’s ruling on Brown’s motion for a new trial and remand for application

of the proper standard.

       CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION

VACATED; REMANDED WITH DIRECTIONS.
