                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0638
                                 Filed July 30, 2014

JON ANDREW WELTHA,
     Petitioner-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



      Petitioner appeals the district court decision denying his request for

postconviction relief from his convictions for assault, willful injury, and assault

causing bodily injury. AFFIRMED.



      Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for

appellant.

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

General, Stephen Holmes, County Attorney, and Keisha Creitsinger, Assistant

County Attorney, for appellee.



      Considered by Tabor, P.J., Bower, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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SACKETT, S.J.

       Petitioner Jon Andrew Weltha appeals from the district court decision

denying his request for postconviction relief from his convictions for assault,

willful injury, and assault causing bodily injury.    Weltha claimed he received

ineffective assistance at trial because defense counsel failed to (1) object to

evidence of his prior bad acts, (2) object to evidence of his prior criminal history,

(3) adequately advise him of his right to testify, and (4) offer a recording of a 911

call. We conclude Weltha has failed to show he received ineffective assistance

of counsel and affirm the decision of the district court denying his request for

postconviction relief.

I.     Background Facts & Proceedings

       Weltha was charged with sexual abuse in the third degree, willful injury

causing bodily injury, and serious assault causing bodily injury.         The State

alleged Weltha had sexual relations with his girlfriend, Anna, against her will,

then punched, head-butted, and choked her. The State submitted photographs

of Anna’s injuries. A physician testified Anna’s injuries were consistent with her

statements about the incident. Weltha was arrested after the incident. Both

Weltha and Anna had injuries.       Anna’s injuries appeared to be defensive in

nature and Weltha’s story about what happened was vague.

       On the sexual abuse charge, the jury found Weltha guilty of the lesser

included offense of simple assault. The jury also found him guilty of willful injury

and assault causing bodily injury. Weltha was determined to a habitual offender.

The court denied Weltha’s posttrial motions, and he was sentenced to a total of
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sixteen years in prison. Weltha appealed, and his convictions were affirmed.

See State v. Weltha, No. 09-1837, 2010 WL 5394731, at *2 (Iowa Ct. App. Dec.

22, 2010).

       Weltha filed this application for postconviction relief. After a hearing, the

district court denied his request, finding “The evidence of Mr. Weltha’s guilt on

these charges was overwhelming.” The court determined Weltha had failed to

show he received ineffective assistance of counsel.

II.    Standard of Review

       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).

III.   Ineffective Assistance

       A.    Weltha contends he received ineffective assistance because

defense counsel did not object, or move for a mistrial, when Anna testified about

his prior bad acts. During direct examination, Anna was asked about her left eye,

and she replied, “That is correct. He always—when he punched me, he always

punched me in my left eye.” Anna additionally testified:

              Q. Did you say anything when he straddled you? A. No.
       But I knew what was next. I mean it’s what always happened.
              Q. Okay. Could you tell if you were injured when he
       punched you in the left eye? A. Yes, I could because he hit me so
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       frequently and I could feel my eye getting bigger. And that’s when I
       did tell him that I was going to call the police this time.

       Other testimony by Anna included these statements:

               Q. Did he say anything between the time he took the phone
       from you and the time he head-butted you? A. No. I just told him
       to get out and that I was calling the police and he wasn’t going to
       be able to beat me anymore. And he always promised that he
       wouldn’t do it anymore but every time he still continued to do it.
               ....
               Q. Okay. What happened when he left? A. Then after he
       left I cried for a few minutes or whatever. I was just trying to get
       myself together before I was going to try and call for help. And then
       I looked out my window and saw him standing out by my car. And
       he always said that he would disable my vehicle and he’s been
       known to cut brake lines, so I honestly thought that’s what he was
       going to do to my vehicle.

       Prior to trial, defense counsel filed a motion in limine seeking to exclude

evidence of prior physical or sexual assaults between Weltha and Anna. The

court did not rule on the motion prior to the trial. During the trial, defense counsel

did not object to the statements above concerning prior physical abuse or cutting

brake lines. Generally, under Iowa Rule of Evidence 5.404(b), evidence of prior

bad acts is inadmissible “to prove the character of a person in order to show that

the person acted in conformity therewith.”

       At the postconviction hearing, defense counsel testified he did not object

because he believed too many objections could prejudice the jury against

Weltha. Also, he believed some of Anna’s testimony was helpful to Weltha, and

he did not want to interrupt the flow of her testimony. Defense counsel also

testified there were other ways of dealing with Anna’s testimony, rather than

objecting, such as pointing out inconsistencies in her statements.           Defense
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counsel believed Anna was overselling her claims of prior abuse and the jury

would not find her believable.

      In considering claims of ineffective assistance, there is a strong

presumption counsel rendered adequate assistance and exercised reasonable

professional judgment. Kyle v. State, 364 N.W.2d 558, 562 (Iowa 1985). In

general, miscalculated trial strategies and mere mistakes in judgment do not rise

to the level of ineffective assistance of counsel. State v. Ledezma, 626 N.W.2d

134, 143 (Iowa 2001).        In fact, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Strickland v. Washington, 466 U.S. 668, 690-91 (1984).

      “With respect to evidentiary objections, counsel need not take advantage

of every opportunity to object in order to satisfy the standard of normal

competency.”    State v. Keesey, 519 N.W.2d 836, 838 (Iowa Ct. App. 1994).

Counsel’s failure to object to certain evidence “may well have been motivated by

a desire not to emphasize the allegedly objectionable testimony.”        State v.

Williams, 334 N.W.2d 742, 745 (Iowa 1983).         When counsel refrains from

objecting to evidence for strategic reasons, there is no ineffective assistance of

counsel. See Fryer v. State, 325 N.W.2d 400, 414 (Iowa 1982).

      Defense counsel gave reasons for not objecting to testimony of Anna that

there had been prior physical abuse and Weltha had been known to cut the

brake lines of a car. We cannot say these were not plausible options. Weltha

has failed to rebut the strong presumption that his counsel was effective.

Furthermore, he has failed to show prejudice. As the district court found, the
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evidence of Weltha’s guilt was overwhelming; consequently, he has failed to

show the result of the trial would have been different if objections to the evidence

had been made.

       B.     Weltha next claims he received ineffective assistance of counsel

because defense counsel did not object, or seek a mistrial, after defense counsel

played a portion of an audio recording of a police interview of Anna. He started

the tape at a wrong place, and the jury heard Anna say, “He hit me and then he

hit himself a bunch of times and said he was not going back to prison again.”

       This issue was raised in Weltha’s motion for new trial. The district court

determined Weltha failed to demonstrate there was a reasonable probability that

but for defense counsel’s purportedly unprofessional errors, the result of the trial

would have been different. The court found Anna’s remarks, which had been

inadvertently aired to the jury by defense counsel, were not sufficiently prejudicial

to prompt the jury’s verdicts. The court stated, “The case was not that close and

my confidence in the outcome has not been undermined in the least.”

       This issue was raised again in Weltha’s application for postconviction

relief, and again the court found Weltha had failed to show he was prejudiced by

counsel’s action.    We agree with the district court that in considering the

overwhelming evidence of his guilt, Weltha has not shown a reasonable

probability the result of the trial would have been different if the jury had not

heard Anna’s statement. We affirm on this issue.

       C.     Weltha claims he received ineffective assistance because defense

counsel did not adequately advise him of his right to testify. At the postconviction
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hearing, Weltha testified defense counsel never asked him if he wanted to testify

and never explained the relative pros and cons of testifying.

        Contrary to Weltha’s assertions, he was asked on the record during trial,

“Mr. Weltha, was it your choice not to testify here today?” and he replied, “Yes,

sir.”   At the postconviction hearing, defense counsel testified he had two

discussions with Weltha about whether he should testify. We conclude Weltha

has not shown he received ineffective assistance due to counsel’s failure to

adequately advise him about testifying at his criminal trial.

        D.     Weltha asserts he received ineffective assistance because defense

counsel did not offer a recording of a 911 call initiated by Weltha. Immediately

after the incidents giving rise to the assault charges, Weltha went outside Anna’s

apartment and called 911, stating he had been sleeping when Anna started

hitting him.

        At the postconviction hearing defense counsel testified about why he had

not offered a recording of the 911 call during the trial:

                It did not seem as though that was going to assist his
        justification defense. It supported what he said, there’s no question
        about that. But given the events of that night and the fact that she
        had been injured given the photographs, and, I guess, the other
        problem was that the evidence—or given the injuries that she
        sustained, if we made too much of the case to the jury, that he
        essentially had no responsibility for what happened, my fear was
        the jury was not going to buy that. That would diminish his chance
        of getting an acquittal on the sexual abuse third offense charge.

        Defense counsel had a valid strategic reason not to offer a recording of

the 911 call during the trial. A counsel’s “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually
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unchallengeable.” Strickland, 466 U.S. at 690-91. In fact, even miscalculated

trial strategies and mistakes in judgment generally do not rise to the level of

ineffective assistance of counsel. Ledezma, 626 N.W.2d at 143. We conclude

Weltha has failed to show he received ineffective assistance due to counsel’s

failure to offer a recording of the 911 call during the trial.

       After considering all of Weltha’s claims of ineffective assistance of

counsel, we affirm the decision of the district court denying his application for

postconviction relief.

       AFFIRMED.
