                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0415
                               Filed June 10, 2015


CHRISTOPHER McCOY,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Rustin T.

Davenport, Judge.



      The applicant appeals the district court’s denial of his request for

postconviction relief from his conviction for child endangerment resulting in

death. AFFIRMED.



      Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, and Travis M.

Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason City, for

appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, and Carlyle D. Dalen, County Attorney, for appellee State.



      Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

       Christopher McCoy appeals the district court’s denial of his request for

postconviction relief from his conviction for child endangerment resulting in

death. McCoy has not shown he received ineffective assistance because his

defense counsel did not file a motion for change of venue. Also, he has not

shown he was denied his right to a fair and impartial jury. We affirm the district

court decision denying McCoy’s application for postconviction relief.

       I. Background Facts & Proceedings.

       On January 10, 2006, McCoy was living with his girlfriend and her two-

year-old child, R.P. The child received head injuries while in McCoy’s care and

died two days later. McCoy was charged with first-degree murder and child

endangerment resulting in death.            The jury found him guilty of child

endangerment resulting in death, in violation of Iowa Code section 726.6(4)

(2005), and involuntary manslaughter resulting from a public offense, in violation

of section 707.5(1).    McCoy was sentenced to terms of imprisonment not to

exceed fifty years and five years, to be served consecutively. On appeal, we

determined the convictions should be merged.1 State v. McCoy, No. 07-1657,

2008 WL 5005189, at *2 (Iowa Ct. App. Nov. 26, 2008). Procedendo issued on

January 28, 2009.

       On December 16, 2011, McCoy filed an application for postconviction

relief, claiming he received ineffective assistance of counsel at his criminal trial.

He claimed defense counsel should have filed a motion for change of venue


1
  McCoy’s conviction for involuntary manslaughter resulting from a public offense and his
five-year sentence for that offense have been vacated.
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because there was publicity about the murder of a child, E.M., in the next county,

which he believed may have influenced the jurors in his case. He also claimed

there had been juror misconduct; his mother, Beverly McCoy, testified she

overheard a deputy tell one of the jurors, “[W]ell, if they’re in here, they’re guilty.”

       The district court entered a ruling on February 11, 2014, denying McCoy’s

request for postconviction relief. The court found the press coverage regarding

McCoy’s case was generally factual in nature.            The court found the press

coverage of the murder of E.M. was also factual in nature. The court determined

that even if a motion for change of venue had been made, it was unlikely the

motion would have been granted. The court concluded McCoy had failed to

show he received ineffective assistance on this ground.               The court found

Beverly’s testimony was not credible and concluded McCoy had not been

deprived of an impartial jury. McCoy now appeals the district court decision

denying his request for postconviction relief.

       II. Change of Venue.

       McCoy contends he received ineffective assistance because his defense

counsel did not file a motion for change of venue. McCoy was tried in Cerro

Gordo County. Prior to the incident in this case, on July 1, 2005, E.M., who was

five years old, disappeared from her home in Floyd County, and after an

extensive search her body was found on July 6, 2005. Cerro Gordo County and

Floyd County abut each other and share a media market. McCoy claims there

was pervasive and inflammatory coverage of the E.M. case. He claims the jury

in his case may have been tainted by the media coverage of the E.M. case. He
                                           4


asserts there were some factual similarities because in both cases a child died

and a live-in boyfriend came under suspicion for the offense.2

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the applicant a

fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       A motion for a change of venue may be granted when there is evidence

“that such degree of prejudice exists in the county in which the trial is to be held

that there is a substantial likelihood a fair and impartial jury trial cannot be

preserved with a jury selected from that county.” Iowa R. Crim. P. 2.11(10)(b).

“The question of when to seek a change of venue is, however, a matter of

professional judgment about which experienced trial lawyers frequently

disagree.” Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982). “[W]e will not

reverse where counsel has made a reasonable decision concerning trial tactics

and strategy, even if such judgments ultimately fail.”          Brewer v. State, 444

N.W.2d 77, 83 (Iowa 1989). “Improvident trial strategy, miscalculated tactics or

mistakes in judgment do not necessarily amount to ineffective assistance.”

Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012).


2
  We note the live-in boyfriend in the E.M. case was not charged with first-degree murder
until September 27, 2012, long after McCoy’s criminal trial. At the time of McCoy’s trial
in 2007, media reports in E.M.’s case stated only that the murder of E.M. was as yet
unsolved.
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       McCoy has not shown defense counsel failed to make a reasonable

decision to forgo a motion for change of venue in this case. Defense counsel

testified an investigator collected information about media coverage of McCoy’s

criminal charges and she reviewed the reports to determine whether a motion for

change of venue should be filed. Defense counsel stated she was not concerned

that media coverage of the E.M. case might affect the jury pool in McCoy’s case.

She stated she questioned the jurors during voir dire to find out if they had been

prejudiced due to exposure to media coverage. We conclude McCoy has not

shown he received ineffective assistance from defense counsel on this ground.

       III. Juror Misconduct.

       McCoy asserts he was denied his right to a fair and impartial jury. Based

upon the testimony of his mother, Beverly, he claims a deputy told one of the

jurors, “[W]ell, if they’re in here, they’re guilty.” McCoy believes this conversation

may have tainted the juror’s fairness.

       We first note this issue was not raised as a claim of ineffective assistance

of counsel, and therefore, under section 822.8, has not been properly raised in

this postconviction action. Second, during the criminal trial one of the jurors was

questioned in chambers by the court about a conversation with a law

enforcement officer during a break. The court stated, “Obviously someone has

told me that he or she had seen you with a deputy.” The juror stated he had not

talked about the criminal case at all. The court, the prosecutor, and defense

counsel must have found the juror credible because no further action was taken.

Third, the district court found that Beverly, who testified at the postconviction
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hearing, was not credible in her testimony. For all of these reasons, we conclude

McCoy has failed to show he did not have a fair and impartial jury.

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

postconviction relief from his conviction for child endangerment resulting in

death.

         AFFIRMED.
