                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2013
                             Filed October 12, 2016


JAMES SCOTT MUNSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      James Scott Munson appeals the denial of his application for

postconviction relief. AFFIRMED.




      Rees Conrad Douglas, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

          James Scott Munson appeals the denial of his application for

postconviction relief.     Finding no reason to disagree with the district court’s

conclusion that trial counsel’s performance was not constitutionally deficient, we

affirm.

I. Background Facts and Proceedings.

          Following a jury trial, Munson was found guilty of third-degree sexual

abuse and lascivious acts with a child based primarily on the victim’s testimony

concerning sex acts occurring between April 1, 2010, and May 20, 2011, when

the victim was twelve and thirteen years of age. At the time of trial, the victim

was fourteen, and Munson was forty-nine years old. Our opinion affirming the

criminal convictions summarizes:

          The victim testified as to encounters with Munson, which included
          oral sex and the use of his fingers, penis, vibrators, a cucumber,
          and a K–Y Jelly bottle to penetrate her vaginally. She also testified
          that he played with her breasts.
                 When the victim was younger her mother had frequently
          asked Munson to babysit her. The victim continued to visit Munson
          in his home and occasionally in her home as she grew older. The
          victim found some of her mother’s sex toys and asked Munson
          about them. Munson told the victim’s mother about her discovery.
          The mother ordered the victim not to use the sex toys. Munson’s
          sexual encounters with the victim began at about the time of the
          discussion between Munson and the victim’s mother.
                 The State’s case was primarily based on the victim’s
          testimony, which was extensive, explicit, and detailed. Munson
          admitted to the victim’s mother when confronted, and to law
          enforcement when interviewed, that he had purchased the K–Y
          Jelly and had given it to the victim. Otherwise, he denied the
          sexual encounters with the victim.
                 ....
                 There was little direct evidence to corroborate the victim’s
          testimony, but it was consistent with surrounding events as to time
          and contact with Munson. There was no contention that the
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         victim’s statements to her mother or the interviewing officers were
         inconsistent with her testimony at trial. Munson did not testify.

State v. Munson, No. 13-1150, 2014 WL 2884874, at *1 (Iowa Ct. App. June 25,

2014).

         Munson sought postconviction relief (PCR) alleging trial counsel had

provided ineffective assistance. He argued that in this “he said, she said” case,

“much more could have been presented through collateral witnesses to bolster

the defense of impossibility and to discredit the ‘she said’ testimony of [the

victim].” Munson asserted his trial counsel, Sherese Manker, did not present any

evidence that Munson’s weight from 2002 to 2004 (when he was involved with

the victim’s mother) was considerably less than it was in 2011 (suggesting his

weight gain affected his ability to have sex with the victim). He argued the jury at

his criminal trial thus received no reason to believe sex was possible for Munson

in 2003 but not 2011. Munson also complained trial counsel did not present

evidence to rebut the victim’s testimony that Munson had put boxes in the

hallway of his brother’s doorway to alert him if his brother was up. Munson also

maintained Manker was ineffective in not presenting evidence that a “swing” or

lift, which was used to move his mother and which the victim claimed was used

during a sex act was broken.

         At the postconviction trial, Steven   Munson,   the   defendant’s   brother,

testified he lived in the residence with Munson and their mother during all times

relevant to the sexual abuse charges. He stated their father had died on May 30,

2010, and their mother had congestive heart failure and diabetes and was unable

to walk as of 2009. Steven testified that he and Munson were caretakers for their
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mother. He stated the lift used to move their mother was broken on the left side

and “it was just like it was kind of weak there” and they were not able to use it “as

much.”   He stated the doors to the bedrooms of the house opened inward.

Steven stated he thought Munson “weighed probably right around 350” pounds in

2011. When asked if Munson had any physical problems besides obesity in

2011, Steven responded, “Not that I’m aware of.”

       Munson’s friend, Karen Ramos, testified if she had been called as a

witness at Munson’s criminal trial she would have testified that on Friday

evening, May 20, 2011, (the date the victim testified was the last incident of

sexual abuse) she was on the phone with Munson for approximately two hours

beginning at approximately 6:30 p.m. The victim answered the phone and then

gave the phone to Munson. She stated she could hear the child playing in the

background while she and Munson spoke on the phone.

       Munson’s sister, Patty Marsh, testified the victim’s mother stated to Marsh

in the spring of 2010 that the mother had just hosted a “passion party” (selling

sex toys and aids) and that she was going to buy her child a sex toy “to teach her

that she didn’t need a man to take care of herself sexually.” Marsh also stated

that Munson had permission to speak with the child concerning sexual issues

“because he was like a father figure” and the mother wanted to be informed by

Munson about any questions the child had concerning sexual issues. Marsh

testified further that she was familiar with Munson’s residence, and that on May

20, 2011, Munson lived with his mother and their brother, Steven Munson.

Marsh testified the bedroom doors in the house opened inward. Marsh testified

one side of the hoist or swing used to assist in moving her mother was
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“unhooked” and “it just wouldn’t hold her.” Marsh testified Munson weighed less

when dating the victim’s mother than in 2011. Marsh also testified the victim and

Munson had a father-daughter relationship.

       Debbie Williams testified she had known Munson for many years, knew he

had dated the victim’s mother “a long time ago,” stated they maintained a close

friendship even after they stopped dating, and knew that Munson weighed about

350 pounds when dating the child’s mother and 550 pounds in 2011. Williams

testified she was present during the conversation when the victim’s mother told

Munson he had permission to speak about sexual matters with the child. She

also testified she was familiar with Munson’s residence, confirming that bedroom

doors opened inward.      She, too, stated Munson and the child had a father-

daughter relationship.

       Manker testified about her preparation for trial, including that she had a

number of meetings with Munson and Marsh in which they talked about the

impossibility defense, the victim’s relationship with Munson, the layout of the

Munson residence, the victim’s mother’s new boyfriend, and potential witnesses.

Manker subpoenaed the child’s school records; obtained Munson’s medical

records; deposed the child and her mother; directed her investigator to gather

information about “passion parties” and certain types of sex toys, both of which

came up during the depositions; obtained photographs of the sex toys mentioned

by the child and her mother and purchased wooden dowels to replicate their size

(circumference); photographed Munson without any pants on to show his state of

obesity; and checked into possible witnesses for trial.
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        Manker testified that during the criminal trial, she cross-examined

witnesses and offered photographs of Munson. Manker had argued Munson was

so obese that it was physically impossible for him to commit the sex acts as

alleged.     Manker even had Munson demonstrate for the jury how it was

impossible for him to commit the sex acts by having him get down on the floor on

his back and then attempt to get back up. She also had him demonstrate that he

was not able to bounce a child on his lap, as had been alleged, and she had

Munson demonstrate how he could not reach his private area. She was able

during questioning of witnesses to elicit testimony that repeated penetrations by

various objects as alleged by the victim would result in injury, and no injury was

observed during the victim’s medical exam. She also was able to challenge the

victim’s credibility. Manker testified she discussed trial strategy with Munson

“every step of the way.”

        Manker stated testimony from Munson’s friends and family was character

evidence, which was neither relevant nor admissible. She testified that she did

not call Steven to address the issue of whether Steven’s bedroom door swings in

or out because it made no difference—boxes could still be set outside of the door

to act as an alarm to alert Munson while Munson and the child were in the living

room.      Manker testified that she did not present any evidence of the hoist

because she was never made aware of it by Munson or anyone else; and even if

it was broken, neither Marsh nor Williams could testify when it actually broke, and

Marsh testified that they “weren’t able to use it as much,” not that it could not be

used at all.
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      The PCR court dismissed Munson’s PCR application, concluding trial

counsel had made reasonable strategic decisions.         The court found Manker

presented sufficient evidence to support the defense of impossibility and the fact

that she did not present evidence concerning Munson’s weight gain, that is, that

she “did not present evidence to rebut one specific State assertion does not fall

to the level of incompetence.” Moreover, Munson’s weight gain was testified to

by Debbie Williams, and Munson was able to give a floor demonstration of his

capabilities or lack thereof. The testimony of other witnesses about Munson’s

weight gain would have been cumulative evidence.

      With regard to the direction the doors opened, the PCR court ruled,

“Manker’s determination regarding the box evidence is clearly a tactical decision

made after a thorough investigation of the particular facts.” Further, according to

the victim, no sexual activity occurred on this day so the direction the doors

opened was not significant.

      In regard to the broken swing or lift that was used to help get Munson’s

mother out of bed, and in which the victim asserted she had climbed into and

Munson then performed sex acts on her, the court found:

      Manker testified that she was unaware that the swing was broken.
      She met with both [Munson] and Patty Marsh several times over
      the course of the trial, and neither informed her of this fact. Without
      being told this, Manker had no opportunity to investigate the claim
      or present evidence in this regard. Additionally, at the present trial,
      Steve Munson did not specify that the lift was broken when the
      alleged acts occurred; only that it was broken after 2011. Patty
      Marsh stated that it was broken prior to 2011, but went on to
      describe an instance after the lift allegedly broke that she had used
      it to help her mother.
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The PCR court concluded, “Manker cannot be held ineffective for not

investigating and presenting evidence about which she had no way of knowing.”

       The PCR court also addressed Munson’s complaint that Manker failed to

properly characterize the nature of the relationship between Munson and the

victim1:

              [Munson’s] insistence on the relationship being described as
       that of a father/daughter is for the purposes of showing that the
       relationship was more personal than just casual friendship. Manker
       entered evidence to show, through testimony, that [Munson] “would
       do anything to make [the child] happy.” The distinction between the
       two interpretations is so subtle that it cannot be said that the use of
       one or the other would have had any effect on the jury’s verdict.

       Finally, the PCR court observed that with respect to Ramos’ testimony

about the phone call, Manker was aware of the phone call but did not call Ramos

to testify for legitimate reasons, i.e., Ramos was not physically present at the

residence and, therefore, could not testify as to what actually went on, and the

phone call did not last the entire length of the child’s visit at Munson’s residence.

The court found this a reasonable strategic decision.

       Munson appeals.

II. Scope and Standard of Review.

       An appeal from the denial of a PCR application is ordinarily reviewed for

errors of law. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). However,

claims of ineffective assistance of counsel are grounded on constitutional

guarantees and are thus reviewed de novo. Id.




1
  At trial, the State had described their relationship as “buddies.” Munson wanted to
show that the relationship was more like a father and a daughter.
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III. Analysis.

       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. Id. at 752. Upon our de

novo review, we conclude Munson has failed to meet his burden of proving both

elements. See id.

       We have little to add to the PCR court’s reasoning.        Munson has not

shown how the evidence he presented at the PCR trial likely would have

changed the result of his criminal trial. The victim’s testimony was challenged

through cross-examination and physical demonstrations by Munson.               Trial

counsel attempted to address Munson’s close relationship with the child and his

statement to police that he had several conversations about sex with the child

and had purchased K-Y Jelly for her. “A defendant is not entitled to perfect

representation, rather representation which is within the normal range of

competency.” State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Here, trial

counsel’s strategy and representation were within the normal range of

competency and counsel was not ineffective. We affirm.

       AFFIRMED.
