                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0765
                               Filed June 15, 2016


JAMES ALAN CHRISTENSEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Edward A.

Jacobson, Judge.



      James Christensen appeals from the denial of postconviction relief.

AFFIRMED.




      Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee State.




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


DANILSON, Chief Judge.

          James Christensen was convicted of second-degree sexual abuse by

aiding or abetting John Sickels; Christensen and Sickels were tried jointly. See

State v. Christensen, No. 09-1961, 2010 WL 4792120 (Iowa Ct. App. Nov. 24,

2010) (finding sufficient evidence to support his conviction, the verdict was not

against the weight of the evidence,1 and that the trial court did not err in

excluding irrelevant evidence or denying the motion for new trial based upon the

prosecutor’s improper surrebuttal argument on grounds of lack of prejudice).

This court affirmed Christensen’s conviction, Christensen, 2010 WL 4792120, at

*10, and the supreme court denied further review.

          On August 12, 2011, Christensen filed an application for postconviction

relief (PCR) asserting trial counsel was constitutionally deficient in several

respects. One issue raised was that trial counsel was ineffective in failing to

1
    In ruling on post-trial motions, the trial court concluded:
                   The verdict in this case is not contrary to the weight of the
           evidence. . . . As previously indicated, the complaining witness’ testimony
           was consistent and credible. Her testimony was corroborated by the
           testimony of the Club manager who found the bar in disarray on the
           morning after the incident. Further, the admissions of the defendants
           support many of the salient points of the complainant’s testimony. The
           testimony of the defendants was inconsistent and generally not credible
           on the issue of consent.
                   The complainant’s testimony was believable when she said that
           defendant Christensen physically herded her into the area behind the bar
           and then stood across the bar from her while holding her hand, pushing
           her hair back and shushing her as defendant Sickels had sex with her
           from the rear without her consent. Sickels admitted the sex act. Her
           testimony was compelling when she stated that she looked Christensen in
           the eye while this was going on and said, “[T]his isn’t right.’’ The
           complainant’s testimony that after the act was completed, Christensen
           told her something like “nothing happened here” or “this never happened”
           was corroborated by Christensen’s admission.
                   The more credible evidence in this case supports the State’s
           position that it proved beyond a reasonable doubt that defendant Sickels
           performed a sex act upon the victim by force and against her will while
           being aided and abetted by defendant Christensen.
                                          3


establish prejudice from prosecutorial misconduct, i.e., improper rebuttal

argument, and appellate counsel was ineffective in failing to demonstrate

prejudice on direct appeal.     The district court granted the State’s motion for

partial summary judgment on this issue, concluding, “The appellate court has

already found insufficient prejudice to warrant the granting of relief. That ruling

stands as the law of the case just as the ruling stood as the law of the case in

Stringer [v. State, 522 N.W.2d 797, 800–01 (Iowa 1994)].”

       The remaining issues were scheduled for a subsequent bench trial. At the

PCR trial, counsel for Christensen stated that only the claims related to the

failure to sever Christensen’s and Sickels’ trials were proceeding. Following a

hearing, the district court rejected the claims. Christensen appeals.

       We review ineffective-assistance-of-counsel claims de novo. Dempsey v.

State, 860 N.W.2d 860, 868 (Iowa 2015).

       To succeed on a claim of ineffective assistance of counsel, a PCR

claimant must prove trial counsel failed to perform an essential duty and

prejudice resulted. Id. “Reversal is warranted only where a claimant makes a

showing of both elements.” Id. If the claimant has failed to establish either of

these elements, we need not address the remaining element. Id.

       We review “tactical or strategic decisions of counsel . . . in light of all the

circumstances to ascertain whether the actions were a product of tactics or

inattention to the responsibilities of an attorney.” State v. Brubaker, 805 N.W.2d

164, 171 (Iowa 2011) (citation omitted). “‘We begin with the presumption that the

attorney performed competently’ and ‘avoid second-guessing and hindsight.’” Id.

(citation omitted).
                                          4


       Upon our de novo review, we find no reason to set aside the district

court’s decision.

       Severance. The record shows that trial counsel considered and weighed

the advantages and disadvantages of a joint trial at the outset of the

proceedings.     Trial counsel believed that Sickels’ testimony could benefit

Christensen and that Christensen might not be able to secure Sickels’ testimony

if the two were tried separately. We agree with the district court that decision has

not been shown to be unreasonable or constitutionally deficient.

       Christensen also contends that trial counsel was ineffective in failing to

move to sever as the trial neared and during the trial, arguing he was prejudiced

by testimony of prior incidents of bad acts admitted against Sickels.              In this

regard, the PCR court ruled:

               The court again notes that the State never said that
       Christensen was present at these incidents, let alone participated in
       them. Rather, the State respected Christensen’s choice as to
       whether or not to open the door to character evidence against
       himself.
               Additionally, the court finds it difficult to believe that the
       State’s questions, and Smith’s and Hartsock’s answers, could have
       caused spill-over prejudice to Christensen. From these questions
       and answers, the jury learned that on one occasion during the fall
       prior to the alleged crime, Sickels had been rowdy at a bar and had
       repeatedly asked a female bartender to flash her breasts to him.
       The jury also learned that Sickels had been involved in an assault
       at age eighteen. The court is not willing to conclude that merely
       being tried jointly with a defendant who committed these prior bad
       acts was “so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.” Strickland v. Washington, 466 U.S. [668,]
       687 [(1984)]. The court does not believe that this questioning and
       the accompanying testimony was so prejudicial that its prejudicial
       effect could have, without more, “spilled over” to Christensen and
       could have led a jury to convict him solely based on his association
       with his codefendant.
                                        5


      A defendant cannot obtain a severance just because evidence is admitted

against his co-defendant that is inadmissible to the defendant. See State v.

Williams, 574 N.W.2d 293, 300 (Iowa 1998) (“Severing the trials of co-defendants

is required in two instances: (1) where the trial is so complex and the evidence so

voluminous that the jury will be confused and cannot compartmentalize the

evidence; or (2) where the evidence admitted by or against one defendant is so

prejudicial to a co-defendant, the jury is likely to wrongly use it against the co-

defendant.”).

      The bad-acts testimony about which Christensen complains did not

directly implicate him. Even Sickels’ attorney noted during the discussion of a

motion for mistrial (which he joined), “We said nothing about Mr. Christensen, nor

was Mr. Christensen discussed.”

      Christensen’s counsel moved for a mistrial based upon the spillover effect

of the testimony implicating Sickels. Christensen’s counsel argued:

             Your Honor, if I may, one other thing that I would like to state
      for the record—and this kind of dovetails into what Mr. McConville
      [Sickels’ counsel] just stated—while our defenses are not
      antagonistic to each other, we are separate parties, and the
      characterization that they presented this evidence is a
      misstatement of the record. We are separate defendants. We are
      not presenting a joint defense. This is not—we are not co-counsel,
      and we are separate parties in this criminal prosecution. And
      therefore what Mr. McConville introduces into evidence, I have
      absolutely no control over that. And I just wanted to make that
      clear because [the prosecutor] said they put that evidence in, and
      they didn’t put that evidence in. We didn’t put that evidence in.
      And that’s all I wanted to clarify on that, Your Honor.

      The trial court ruled, in part:

            This is a joint trial. The State is entitled to cross-examine a
      defendant’s witnesses. And the fact that this occurred is not
                                          6


       grounds for a mistrial for Defendant Christensen, and certainly not
       for Defendant Sickels.
              The Defendant Christensen this morning proposed some
       requested jury instructions that are limiting instructions or
       cautionary instructions that the Court will certainly consider that will
       indicate to the jury that the evidence that the character evidence
       offered with regard to Defendant Sickels shall not be considered by
       the jury with regard to Defendant Christensen. And during the
       course of the presentation of that evidence, there was no reference
       to Defendant Christensen. So the defendants’ motion for mistrial is
       overruled.

       A limiting instruction was given to the jury that character evidence related

to Sickels could not be used against Christensen and each defendant was

entitled to have his case decided solely on the evidence which applies to him.2

       Christensen claims this was a “he said—he said—she said” case, and that

any evidence that served to undercut Sickels necessarily “undercut Christensen

by association.”3 We are not convinced any association caused an unfair trial.

Christensen’s defense emphasized that Sickels stated Christensen played no

part in the encounter with the complaining witness, which Sickels testified was

consensual. The jury was properly instructed to give separate consideration to

the evidence presented against each defendant. We presume the jury adhered

2
  Instruction 15 states:
                As you know, there are two defendants on trial here: John Sickels
        and James Christensen. Each defendant is entitled to have his case
        decided solely on the evidence which applies to him. Some of the
        evidence in this case is limited under the rules of evidence to one of the
        defendants, and cannot be considered against the others.
                Character evidence regarding defendant John Sickels can be
        considered only in the case against defendant Sickels. You must not
        consider that evidence when you are deciding if the State has proved,
        beyond a reasonable doubt, its case against defendant James
        Christensen.
3
  As found by the appellate court on direct appeal, “Christensen ignores the testimony
from both the club manager and the club bookkeeper describing the disarray in the bar
area the morning after the assault. His argument also completely ignores both his own
statements to the DCI consistent with [the complaining witness’s] description of the
assault and the confirming statements of Sickels. Christensen, 2010 WL 4792120, at *5.
                                            7

to the trial court’s instructions. State v. Proctor, 585 N.W.2d 841, 845 (Iowa

1998).

         Christensen argues the motion for mistrial was “too little too late,” inferring

counsel should have anticipated the situation and moved to sever at least after

trial began and before Sickels opened the door to character evidence. We are

“to avoid second-guessing and hindsight” in our review of counsel’s performance.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “Considering the standard

of reasonableness utilized in determining ineffective assistance claims,

ineffective assistance is more likely to be established when the alleged actions or

inactions of counsel are attributed to a lack of diligence as opposed to the

exercise of judgment.”        Id.   Christensen has not proved counsel did not

reasonably exercise professional judgment.             He has not proved counsel

breached an essential duty in failing to move for to sever immediately before the

trial or after trial had begun.4 Even though the bad-acts evidence against Sickels

would not have been admissible against Christensen in a separate trial, a

defendant is not entitled to severance simply because the defendant now

believes he may have had a better chance of acquittal in separate trials. See

Zafiro v. United States, 506 U.S. 534, 540 (1993).

         Prejudice from prosecutorial misconduct. Christensen maintains the PCR

court erred in granting summary judgment for the State on the issue of prejudice



4
  On appeal, Christensen asserts the PCR court erred in failing to analyze the issue
under the Iowa Constitution, despite his having asserted a violation of Article 1, section
10 in his application. However, Christensen did not ask the district court to address this
issue, and thus it is not properly before us. See Lamasters v. State, 821 N.W.2d 856,
863–64 (Iowa 2012) (reiterating the rule that when a court fails to rule on a matter, a
party must request a ruling by some means).
                                           8


related to prosecutorial misconduct.       The issue of the prosecutor’s rebuttal

argument was thoroughly argued at trial and on appeal. The district court found

the rebuttal was improper in some respects, but did not deprive the defendant of

a fair trial and thus was not prejudicial. On direct appeal, this court considered

the matter and also concluded the argument was not prejudicial.                    See

Christensen, 2010 WL 4792120, at *6–9. Because the argument was found

“insufficient prejudice to warrant the granting of relief,” “[t]hat ruling stands as the

law of the case concerning the prejudicial effect.” Stringer, 522 N.W.2d at 801.

       Christensen asserts his claim is different, in that there were actions trial

counsel could have taken to develop prejudice more fully.             Specifically, he

asserts PCR counsel should have been allowed to depose the prosecutor who

made the rebuttal argument to establish her improper comments were

intentional.

       We must keep the posture of this case in mind. It is the applicant’s burden

to prove both deficient performance and prejudice. Dempsey, 860 N.W.2d at

868. “Prejudice exists where a claimant proves a reasonable probability that, but

for the counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. (citations omitted). Even presuming trial counsel should have

performed some additional action, there has already been a determination that

the improper argument did not prejudice Christensen. See Christensen, 2010

WL 4792120, at *9 (concluding, “[w]hen we view the prosecutor’s misstatements

in the context of the entire trial, we are convinced the misstatements did not

deprive Christensen of a fair trial and conclude he has failed to prove prejudice”).

Because Christensen cannot relitigate the prejudicial effect of the rebuttal closing
                                       9


argument, he cannot prove trial counsel was ineffective. The PCR court did not

err in granting partial summary judgment.

      We affirm the denial of the PCR application.

      AFFIRMED.
