                    IN THE COURT OF APPEALS OF IOWA

                               No. 4-005 / 12-1355
                               Filed March 26, 2014


MICHAEL LEONARD WHITWORTH,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Marion County, Martha L. Mertz,

Judge.



       A postconviction-relief applicant appeals, claiming his trial attorneys

provided ineffective assistance by failing to file a notice to offer evidence of an

alleged prior sexual relationship with the victim.   AFFIRMED.



       John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, Ed Bull, County Attorney for appellee.



Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.

       Michael Whitworth appeals the postconviction court’s denial of his

application for postconviction relief, following his convictions for first-degree

kidnapping and third-degree sexual abuse. Whitworth claims his trial attorneys

provided ineffective assistance by failing to file a notice to offer evidence of an

alleged prior sexual relationship with the victim. See Iowa R. Evid. 5.412(c).

Had this notice been filed and such evidence been approved by the trial court,

Whitworth claims he would have testified in his own defense and the outcome of

his trial would have been different.    After our de novo review, we conclude

Whitworth has failed to prove he was prejudiced by counsels’ inaction.

Accordingly, we affirm.

       I. Background Facts and Proceedings.

       From the evening of October 12 through the evening of October 13, 2005,

Whitworth confined the victim—first in her own apartment, then in his apartment,

and finally back in her own apartment. He left once she fell asleep. Over the

course of the confinement, Whitworth brutally beat the victim and committed

multiple sexual assaults. Once the victim awoke in the early morning hours of

October 14, she ran to her parents’ home. The victim and her parents called the

police and documented her injuries.         The police also photographed blood

spatters in the victim’s bedroom, which tested positive for her blood.      When

Whitworth was arrested by police, they photographed a small cut on his right

knuckle. Whitworth claimed the cut resulted from an earlier fight, which was

unrelated to the victim.
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       Counsel was appointed to represent Whitworth in the criminal trial. While

his attorneys filed a notice of intent to offer evidence of the victim’s sexual

behavior with persons other than Whitworth, counsel did not file a notice of intent

to offer evidence of a past alleged sexual relationship between the victim and

Whitworth. At trial, the victim testified to her injuries and described the sexual

assaults she endured. Photographs of her injuries were admitted. She stated

that while she was previously friends with Whitworth, at no point did she have a

romantic or sexual relationship with him. Defense counsel “vigorously” cross-

examined the victim in an effort to get her to admit that she consented to the sex

acts, but counsels’ efforts proved unsuccessful. See State v. Whitworth, No. 06-

0809, 2007 WL 2963961, at *1 (Iowa Ct. App. Oct. 12, 2007). Defense counsel

also called a number of witnesses to testify to the victim’s relationships, but the

district court did not allow evidence of the victim’s past sexual history.

       The jury returned guilty verdicts. At sentencing, the court merged the

third-degree sexual abuse conviction into the first-degree kidnapping conviction

and sentenced Whitworth to life in prison without the possibility of parole.

       Whitworth appealed, claiming it was error for the district court to exclude

the evidence of the victim’s past sexual history. See id. Our court affirmed the

district court, concluding such evidence was irrelevant. Id. at *2 (quoting State v.

Kraker, 494 N.W.2d 687, 689 (Iowa 1993) (“Consent to a sex act with one person

does not imply consent to a sex act with another person.”)).

       Whitworth’s postconviction application claimed, among other things, that

counsel was ineffective for failing to file a notice of intent to offer evidence of the
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victim’s alleged sexual relationship with him. Both of Whitworth’s trial attorneys

testified at the postconviction hearing. Both affirmed they advised Whitworth not

to testify because they had concerns about how he would present himself to the

jury. One attorney acknowledged he was aware of Whitworth’s claim he had a

prior sexual relationship with the victim but noted there was no way to get this

information into the record without Whitworth’s testimony, unless the victim would

admit the relationship.

       The postconviction court’s ruling noted, even if his attorneys had filed the

required notice, Whitworth had no assurance the trial court would have allowed

him to testify to a previous sexual relationship with the victim. The postconviction

court concluded Whitworth’s previous-sexual-encounter claims were self-serving,

uncorroborated, and the testimony’s nominal relevance was outweighed by the

potential prejudicial effects. The postconviction court also concluded, even if the

trial court had allowed Whitworth to testify regarding a previous sexual

relationship with the victim, such testimony would not have changed the outcome

of the trial because the evidence, particularly the evidence of the victim’s injuries,

strongly supported the conclusion the victim did not consent.

       Whitworth appeals.

       II. Scope and Standard of Review.

       We review de novo. See State v. Robinson, 841 N.W.2d 615, 617 (Iowa

Ct. App. 2013). In order to prove counsel was ineffective, Whitworth must show

(1) counsel failed to perform an essential duty, and (2) he suffered prejudice as a

result of counsels’ failure. See id. Whitworth must prove both elements to be
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successful, and we need not address the duty prong if we can resolve the claim

on the prejudice prong. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001).     To establish prejudice, Whitworth must show “there is a reasonable

probability that, but for counsels’ unprofessional errors, the result of the

proceeding would have been different.” See id. at 143. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id.

         III. Ineffective Assistance of Counsel.

         Iowa Rule of Evidence 5.412 provides in part:

                   a. Notwithstanding any other provision of law, in a criminal
         case in which a person is accused of sexual abuse, reputation or
         opinion evidence of the past sexual behavior of an alleged victim
         . . . is not admissible.
                   b. Notwithstanding any other provision of law, in a criminal
         case in which a person is accused of sexual abuse, evidence of a
         victim’s past sexual behavior other than reputation or opinion
         evidence is also not admissible, unless such evidence is either of
         the following:
                   (1) Admitted in accordance with rules 5.412(c)(1) and
         5.412(c)(2) and is constitutionally required to be admitted.
                   (2) Admitted in accordance with rule 5.412(c) and is
         evidence of either of the following:
                         (A) Past sexual behavior with persons other than the
         accused, offered by the accused upon the issue of whether the
         accused was or was not, with respect to the alleged victim, the
         source of semen or injury.
                         (B) Past sexual behavior with the accused and is
         offered by the accused upon the issue of whether the alleged victim
         consented to the sexual behavior with respect to which sexual
         abuse is alleged.

The rule also sets out the procedural hurdles a defendant must go through in

order to obtain the district court’s approval to admit evidence of a victim’s past

sexual behavior, including filing a motion with a written offer of proof to the court

no later than fifteen days before trial. See Iowa R. Evid. 5.412(c)(1)–(3). In order
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to determine the admissibility of the evidence, the court is to hear the evidence in

chambers. Id. In its ruling, the court must determine whether the evidence is

relevant and whether the probative value of the evidence outweighs the danger

of unfair prejudice.

       Irrespective of (1) whether the trial attorneys herein should have filed the

required notice and (2) whether the court herein would have granted the request,

we conclude Whitworth cannot show there is a reasonable probability the result

of the trial would have been different if he had testified regarding his alleged past

sexual history with the victim.    The State’s case was strong, and the “most

important factor under the test for prejudice is the strength of the State’s case.”

State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006).

       The evidence Whitworth claims should have been admitted is only

relevant to the issue of the victim’s consent to the sexual acts. As noted by the

postconviction court, the other evidence at trial strongly supported the conclusion

the victim did not consent to sexual acts with Whitworth. The extensive injuries

she sustained (a black eye, a cut and swollen lip, bruising to her cheeks and

forehead, bruising and scratches on her neck, bruising and abrasions on her

back, and bruising on her arm and inner thigh) are particularly significant.

Additionally, the police observed and documented blood spatter in the victim’s

bedroom in the location where she claimed the beating occurred, and Whitworth

had an injury on his right knuckle, although Whitworth disputed the source of this

injury. Whitworth’s proposed testimony—he had previously had consensual sex
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with the victim—is not sufficient to undermine our confidence in the jury’s

conclusion.

      Because Whitworth failed to prove the prejudice prong of his ineffective-

assistance-of-counsel claim, we affirm.

      AFFIRMED.
