              IN THE SUPREME COURT OF IOWA
                              No. 08–0430

                          Filed April 22, 2011


DANIEL KING,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Linn County, Nancy A.

Baumgartner, Judge.



      On further review, appellant asserts the court of appeals erred in

denying postconviction relief. AFFIRMED.



      Wallace L. Taylor, Cedar Rapids, for appellant.


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

Assistant Attorney General, Harold L. Denton, County Attorney, and

Todd D. Tripp, Assistant County Attorney, for appellee.
                                                  2

APPEL, Justice.

          The appellant, Daniel King, requests further review of the court of

appeals’ decision affirming his denial of postconviction relief.                       King

argues his trial counsel was ineffective in not properly attacking DNA

evidence offered by the State at trial. Upon our review of the record, we

conclude that King has failed to show a reasonable probability that the

verdict would have been different had trial counsel more adequately

developed a response to the State’s evidence. As a result, we affirm the

decision of the district court denying King’s application for postconviction

relief.

          I. Background Facts and Proceedings.

          This is a postconviction relief action filed by Daniel King to vacate

his conviction for sexual abuse in the third degree in violation of Iowa

Code sections 709.4(2)(c)(4) 1 and 901A.2(3) (2003). The State alleges that
on April 25, 2004, King, who was twenty-two years old at the time, had

sex with a fifteen-year-old girl. The girl, A.A., alleged the nonconsensual

sex took place in the front passenger seat of King’s car between the

hours of 2 and 4 a.m. There were no witnesses to the alleged event.




          1Iowa   Code section 709.4(2)(c)(4) provides:
                 A person commits sexual abuse in the third degree when the
          person performs a sex act under any of the following circumstances:
                   ....
                 2. The act is between persons who are not at the time
          cohabitating as husband and wife and if any of the following are true:
                   ....
                  c. The other person is fourteen or fifteen years of age and any of
          the following are true:
                   ....
                   (4) The person is four or more years older than the other person.
                                       3

         Sometime during the afternoon of April 25, A.A. told her mother of

the alleged incident. A.A.’s mother immediately called the police. Officer

Mullen, from the Cedar Rapids Police Department, was dispatched to

A.A.’s home.      After being informed of A.A.’s sexual assault, Mullen

requested the clothing A.A. had been wearing during the incident. A.A.

informed Mullen that the clothing had not been washed and was lying in

a pile on her bedroom floor.         The clothing consisted of a pair of

underwear, jeans, and a tank top.          Mullen placed all three pieces of

clothing in an unsealed paper bag. He then placed the unsealed bag in

the trunk of his police car. The bag remained in the trunk of the police

car until Mullen returned to the police department, where he delivered it

to the department’s evidence custodian. Upon delivery, it was placed in

an evidence locker.

         A.A. was taken to the emergency room where a nurse examined her

and collected evidence for a sexual assault kit. Among other things, the

nurse examining A.A. found large areas around the neck that looked like

hickeys, purple bruising of both breasts, and a swollen rectum with

tears.    The nurse found these injuries consistent with sexual assault.

The nurse also found abrasions in the vaginal area that suggested recent

penetration.

         On June 2, both the sexual assault kit and the paper bag

containing A.A.’s clothing, along with buccal (DNA) swabs taken from

King, were transported to the Iowa Division of Criminal Investigation

(DCI) laboratory for examination.       The technician who received the

evidence testified that the paper bag containing A.A.’s clothing was not

sealed when it arrived at the laboratory.

         Before performing any tests, the DCI criminologist separated the

three items of clothing and placed them in separate bags.               The
                                      4

criminologist then examined the underwear.        The criminologist found

seminal fluid on the crotch of the underwear that contained an epithelial

cell with King’s DNA.

      The criminologist also examined some of the other items related to

the case. The criminologist examined the vaginal slides of A.A.’s rape kit,

finding seminal fluid with some sperm. The criminologist, however, was

unable to develop a DNA profile from the sperm. The swabs taken from

both sides of A.A.’s neck revealed King’s DNA. Swabs were also taken

from each of A.A.’s breasts. A DNA profile could not be developed from

the left breast swab, but a DNA profile from the right breast swab

excluded King from being the donor. No DNA or seminal fluid was found

on the oral, rectal, or dental swabs.     The criminologist did not review

debris swabs from the genital area.

      To aid in examining the State’s DNA evidence, King’s trial counsel

hired a DNA expert, Professor David Soll. King’s attorney sent Soll the

following letter:

            I want to thank you for your willingness to review the
      D.C.I. Lab Report regarding the DNA findings and the State’s
      discovery file against my client in this case.

           I have enclosed for your compensation, a trust check
      from my law firm made out to you in the amount of
      $1,000.00.

            Would you please contact me after you have reviewed
      the enclosed material with any opinions you may have
      regarding whether, or not, you can assist in Mr. King’s
      defense?

      The DCI laboratory report and the State’s discovery file were sent

along with this letter.   A receipt detailing the evidence tested revealed

that one of the exhibits was a paper bag containing the victim’s

underwear, jeans, and shirt worn the morning of the assault. The receipt
                                       5

also indicates the bag was not sealed. The receipt was included in the

file of materials sent by King’s counsel to Soll.

       Upon receipt of the materials, Soll “skimmed everything.” He then

proceeded to review the testing procedures used by the DCI.               He

determined that the laboratory used the correct methods for testing the

DNA and its findings were accurate. King’s attorney sent a letter to King

and King’s mother explaining Soll’s conclusions.

       Soll did not testify at King’s trial. The jury found King guilty of

sexual assault in the third degree. Because King had a prior conviction

for assault with intent to commit sexual abuse, he was sentenced to an

indeterminate term of twenty-five years in prison with an eighty-five

percent mandatory minimum sentence. See Iowa Code § 901A.2(3).

       After the trial, King’s mother met with Soll “to see if there was

anything that didn’t seem right.” She presented Soll with the DCI report

that showed that the three articles of clothing were placed in the same

bag. Based on the DCI report and his review of other documents, Soll

developed a few “pretty extreme” concerns.          After reviewing these

materials, Soll became concerned that the DNA found on A.A.’s

underwear could have been transferred to the underwear from either her

shirt or jeans, as all of A.A.’s clothing had been placed in the same paper

bag.   He further noted that the lack of sperm in the seminal fluid

suggested a “big possibility” of cross-contamination, which produced a

“bigger probability” that King was not the source of the seminal fluid.

       King’s mother took notes of her conversation with Soll and relayed

Soll’s concerns to her son’s attorney. In response, defense counsel filed a

motion for a new trial and/or a motion in arrest of judgment. In this

motion, counsel claimed King should be granted a new trial because the

underwear on which the DCI laboratory found King’s DNA was placed in
                                       6

a bag with other clothing that may have cross-contaminated the

underwear, making it an unreliable piece of evidence.

        Attached to the motion was an affidavit by Soll. In this affidavit,

Soll stated that, because the items of clothing that were worn by A.A. at

the time of the alleged incident were placed together in a sack without

being separated, there was an issue of cross-contamination. This raised

doubts as to which article of clothing was the source of the DNA sample.

Further, the seminal fluid in the underwear could not be matched to a

particular person because there was no sperm in it. Additionally, there

was no sperm in the vaginal slides to make an identification of the donor.

        The district court denied the motion on the basis that the evidence

could have been discovered previously and presented at trial.            King

appealed.     On appeal, his counsel determined that any ineffective-

assistance-of-counsel claim he might have could not be decided on direct

appeal, but only in a postconviction relief action in which a record could

be more fully developed. As a result, appellate counsel filed a motion to

dismiss the appeal as frivolous, which this court granted.

        This postconviction action was filed pro se by King in December

2006. An amended application was later filed by King’s attorney. In the

amended application, King claimed that his trial counsel was ineffective

for failing to raise the issue of DNA cross-contamination at trial, failing to

present additional testimony that contradicted A.A.’s testimony, and

failing to present evidence of A.A.’s possible motives for accusing King of

rape.

        The district court denied King’s application.     The district court

stated that it was Soll who failed to notice a possible cross-contamination

problem with the evidence and that error could not be attributed to

defense counsel. The district court further found that the failure to offer
                                      7

testimony from additional witnesses did not rise to ineffective assistance

of counsel.

      King appealed the district court’s decision, and his appeal was

routed to the court of appeals. The court of appeals affirmed the district

court. King filed an application for further review with this court, which

we granted.

      II. Scope of Review.

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

v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010). In conducting our de novo

review, “we give weight to the lower court’s findings concerning witness

credibility.” Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

      III. Discussion and Analysis.

      A. State vs. Federal Constitution. In this postconviction relief

action, King presents an ineffective-assistance-of-counsel claim. He does

not, however, indicate whether the case has been brought under the

Sixth Amendment to the United States Constitution or article I, section

10 of the Iowa Constitution.     When there are parallel constitutional

provisions in the federal and state constitutions and a party does not

indicate the specific constitutional basis, we regard both federal and

state constitutional claims as preserved, but consider the substantive

standards under the Iowa Constitution to be the same as those

developed by the United States Supreme Court under the Federal

Constitution.   State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).

Even in these cases in which no substantive distinction had been made

between state and federal constitutional provisions, we reserve the right

to apply the principles differently under the state constitution compared

to its federal counterpart. State v. Bruegger, 773 N.W.2d 862, 883 (Iowa

2009).
                                        8

      B. Framework       for   Evaluation     of   Claims    of   Ineffective

Assistance of Counsel. To establish an ineffective-assistance-of-counsel

claim under the Federal Constitution, an applicant must demonstrate

that “ ‘(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.’ ” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa

2010) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)); see

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984). The applicant must prove both elements by a

preponderance of the evidence. Ledezma, 626 N.W.2d at 142.

      To prove the first prong of the Strickland test, the claimant must

demonstrate that the attorney’s performance fell below the “standard

demanded of a reasonably competent attorney.”          Id.   We measure the

attorney’s performance against the “ ‘prevailing professional norms.’ ” Id.

(quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at

694). In evaluating the performance of counsel, we presume the attorney

performed competently, and it is the applicant’s burden to present facts

establishing inadequate representation.       Millam v. State, 745 N.W.2d

719, 721 (Iowa 2008). “Miscalculated trial strategies and mere mistakes

in judgment normally do not rise to the level of ineffective assistance of

counsel.” Ledezma, 626 N.W.2d at 143. However, “strategic decisions

made after a ‘less than complete investigation’ must be based on

reasonable professional judgments which support the particular level of

investigation conducted.” Id. (quoting Strickland, 466 U.S. at 691, 104

S. Ct. at 2066, 80 L. Ed. 2d at 695).          The “investigation must be

reasonable under the circumstances”; therefore, we look to the facts of

the case to determine whether there was a lack of diligence. Id.

      Even when attorneys accept cases “in an area in which they are

unfamiliar, they bear the responsibility to perform the work competently.
                                      9

No client should be made to suffer through an attorney’s learning curve.”

Comm. on Prof’l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 198 (Iowa

1993).   A reasonable investigation has been described as “a thorough

study of as much literature in a particular field as [the attorney] can

possibly absorb in the time allotted.”     Harry A. Gair, Selecting and

Preparing Expert Witnesses, in 2 Am. Jur. Trials 585, 635 (1964). It is

also suggested that an attorney with no experience in the particular field

of the case should read at least one quality book on the subject. Id.

      In order to meet the second prong of the Strickland test, an

applicant must show that there is a reasonable probability that the result

would have been different.    Strickland, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698. The likelihood of a different result need not

be more probable than not, but it must be substantial, not just

conceivable. Id. at 693–94, 104 S. Ct. at 2067–68, 80 L. Ed. 2d at 697–

98.

      C. Ineffective Assistance for Failure to Develop DNA Defense.

In this case, King’s counsel recognized that DNA would play a major role

in the case. King’s counsel, however, did not have much experience with

DNA issues.      As a result, he hired Soll to provide him with expert

assistance in the case.

      As he was preparing for trial, King’s counsel sent a letter asking

Soll to look at the DNA evidence and determine “whether or not [Soll]

could assist in Mr. King’s defense.”      King’s counsel sent Soll a file

containing materials that indicated A.A.’s shirt, pants, and underwear

were placed in the same evidence bag the day after the incident. Despite

this, King’s counsel did not direct Soll’s attention to the issue of cross-

contamination.
                                      10

        Soll apparently interpreted counsel’s request narrowly as one to

“review the technology of the Des Moines crime lab that was doing the

DNA analysis” to see if the results were correct. Essentially, Soll thought

he was simply to determine whether the DNA found on A.A.’s clothing

really belonged to King. Soll claimed it was not his job to put the DNA

results into context. Prior to King’s trial, he did not identify any issue

related to cross-contamination and thus did not consider whether the

potential of cross-contamination would have any impact on the State’s

case.

        After trial, Soll connected the dots. He realized that, because the

DNA in the seminal fluid came from epithelial cells and not sperm cells,

there was a “high probability” that the DNA found in the seminal fluid

had migrated from another piece of clothing that was in the bag or from

some other kind of contamination.          Further, Soll recognized that,

because the seminal fluid in the underwear did not contain sperm, which

is relatively hardy and long lasting, there was a “bigger probability” that

the seminal fluid in the crotch of the underwear was not King’s.

        Thus, Soll now concluded that the powerful and seemingly

irrefutable evidence at trial that the seminal fluid found in the crotch of

the underwear contained the DNA of King could have been substantially

undermined in two ways. First, the epithelial cell containing King’s DNA

could have been transferred to the underwear from one of the other

articles of clothing.   Second, the seminal fluid in the underwear was

probably not King’s because of the lack of sperm.          If Soll’s newly

developed opinions had been presented to the jury, it could have

concluded that, while King had some kind of contact with A.A., the

contact could have been a result of conduct other than sexual

intercourse.
                                    11

      When an attorney hires an expert to assist in the defense, effective

counsel cannot simply present the file to the expert and ask for an

opinion.   Instead, the effective attorney must engage in a two-stage

process. First, the attorney must develop a basic working knowledge of

the subject matter about which the expert is consulted. See Richey v.

Bradshaw, 498 F.3d 344, 362–63 (6th Cir. 2007). Second, the attorney

must then consult with the expert and competently explore the potential

issues. The mere hiring of an expert is meaningless “if counsel does not

consult with that expert to make an informed decision about whether a

particular defense is viable.” Id. at 362. The question in this case is

whether King’s counsel engaged in this two-stage process.

      In this case, King’s attorney appears not to have remembered the

O.J. Simpson trial in which issues of contamination of apparently highly

incriminating DNA evidence were at the heart of the defense attack. See,

e.g., William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U.

Colo. L. Rev. 827 (1996) (reviewing various cross-contamination issues).

Further, King’s attorney apparently did not acquaint himself with the

literature regarding DNA testing.    Had he done so, he would have

recognized the need to explore potential contamination theories to attack

harmful evidence. See, e.g., Comm. on DNA Forensic Sci., Nat’l Research

Council, The Evaluation of Forensic DNA Evidence 80, 83–84 (1996)

(noting concern with sample mishandling and further observing that

sperm DNA can be separated from nonsperm DNA with differential DNA

extraction); Comm. on DNA Tech. in Forensic Sci., Nat’l Research

Council, DNA Technology in Forensic Science 20, 66 (1992) (noting

contamination can result from the handling of other evidence samples

and from mixed samples and noting that forensic investigators should

take care to minimize the risk of contamination); Edward J. Imwinkelried
                                      12

& D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 76 Wash. L. Rev.

413, 473 (2001) (discussing cross-contamination in collecting and

handling    of   DNA    evidence);   Michael    R.   Flaherty,     Annotation,

Admissibility, in Prosecution for Sex-Related Offense, of Results of Tests on

Semen or Seminal Fluids, 75 A.L.R.4th 897, 910 (1989) (stating “expert

examination of a sample to check for contamination . . . may be useful to

call into question the reliability of the results”); William C. Thompson et

al., Evaluating Forensic DNA Evidence: Essential Elements of a Competent

Defense     Review,    The   Champion      16    (April   2003),     available

at   http://www.bioforensics.com/articles/champion1/champion1.html

(discussing the steps defense lawyers must take to adequately evaluate

DNA evidence offered against their clients). Further, an examination of

DNA case law would have revealed the potential for attack based upon

cross-contamination of DNA evidence. See, e.g., United States v. Lowe,

954 F. Supp. 401, 419 (D. Mass. 1996) (noting cross-contamination due

to handling before, during, or after DNA extraction); State v. Wommack,

770 So. 2d 365, 372 (La. Ct. App. 2000) (raising possible cross-

contamination where clothing bagged together); Mincey v. State, 112

S.W.3d 748, 750, 753 (Tex. Ct. App. 2003) (noting possibility of cross-

contamination when clothing put in same paper bag).                  Thus, a

reasonably competent lawyer would have determined that a threshold

question in DNA cases is whether there has been contamination of the

evidence.

      If King’s counsel had reviewed the literature and been aware of the

potential of cross-contamination, however, it is possible that King’s trial

counsel still would not have understood the significance of the evidence

in this case. A transfer of seminal fluid containing his client’s DNA from

one piece of clothing onto another might not be very helpful.             For
                                      13

example, to suggest that his seminal fluid containing DNA was originally

on A.A.’s shirt and then migrated to the crotch of the underwear due to

improper handling or when jostled around in the same paper bag not

only seems improbable, but would not be all that helpful to the defense.

A defense concession that seminal fluid containing King’s DNA was

deposited on the shirt or jeans of the victim would not necessarily

suggest that no sex act occurred between King and A.A.

      The issue, however, is more substantial. Not only was there the

possibility that the DNA had migrated into the crotch of the underwear

from other sources, it was also possible that the DNA was not linked at

all to the seminal fluid in the crotch.     This is the kind of scientific

knowledge that only an expert would likely bring to the table in a

criminal defense.

      The question in this case boils down to this: Under the

circumstances, was King’s counsel ineffective for failing to bring the facts

of cross-contamination to the attention of the expert and to explore

potential challenges to the sample-gathering process to show the

evidence did not necessarily establish that the seminal fluid in the

underwear belonged to King? On the one hand, counsel is not required

to know all the ins and outs of technical subject matter.       One of the

functions of an expert is to identify, define, and refine potential issues.

Coleman v. Calderon, 150 F.3d 1105, 1114–15 (9th Cir.), rev’d on other

grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998);

Hendricks v. Calderon, 70 F.3d 1032, 1038–39 (9th Cir. 1995). In this

regard, it is noteworthy that King’s counsel did provide Soll with the

discovery file in the case. The discovery file included the police reports

describing that the three articles of clothing were placed in one bag. As

emphasized by the district court, a careful examination of the entire file
                                       14

by Soll would have revealed the potential for cross-contamination. On

the other hand, it is clear that, if King’s counsel had simply directed

Soll’s attention to the facts like King’s mother did after King’s conviction,

the evidence would likely have been fully developed. An attorney has an

obligation to diligently and competently determine whether, given the

circumstances of a particular case, there are issues “worth raising.”

Millam, 745 N.W.2d at 723.         Because of his lack of knowledge or

inattention to the file, the cross-contamination issue was not explored

with Soll by King’s counsel prior to trial.

      In this case, however, it is not necessary to decide the issue of

whether King’s counsel provided inadequate assistance because, upon

our review of the entire record, we conclude that King has failed to show

prejudice as required under the Strickland test.     Under Strickland, the

question is whether there is a “reasonable probability” that the result

would have been different.     Strickland, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698.        Stated in other terms, the question is

whether our confidence in the verdict is undermined by the failure to

present a fuller picture of the DNA evidence. Id.; State v. Graves, 668

N.W.2d 860, 882 (Iowa 2003).

      The victim in this case testified that King sexually assaulted her.

She testified that the assault occurred in King’s car between 2 and 4 a.m.

At 4:45 a.m., the victim reappears at a convenience store with visible

hickey-like bruises on her neck.      There was also unrebutted medical

evidence that the victim suffered bruised breasts and rectal tears,

indicating that a sexual assault did, in fact, occur.          The victim’s

identification of King as the perpetrator was supported by the presence of

King’s DNA on both sides of her neck. While King did not take the stand,

his interview with the police was remarkable for its inconsistency.       At
                                     15

first, he denied knowing the victim when presented a photograph of her.

Then he admitted that he knew the victim but claimed he did nothing

improper. Next, when told that the victim was accusing him of sexual

assault, King made the remarkable claim that the victim was falsely

accusing him of sexual assault in response to his claim that she broke

the windshield of his car.

      Further, the new DNA evidence offered by King, though helpful in

discrediting some aspects of the State’s DNA evidence, does not

undermine our confidence in the verdict. Based on an experiment Soll

candidly admits was not as accurate or extensive as it could have been,

Soll is prepared to testify that the DNA in the crotch of the underwear

could have migrated from other articles of clothing or been the result of

other contamination, but he cannot exclude the possibility that such

contamination did not, in fact, occur. Also, Soll’s theory is dependent

upon the presence of King’s DNA on the other articles of clothing bagged

with the victim’s underwear. The other articles of clothing that were in

the paper bag were not tested by Soll or anyone else. Therefore, it is not

at all clear that cross-contamination occurred.

      Similarly, Soll suggested that the lack of sperm in the crotch of the

underwear indicated that the seminal fluid may have been old.         Soll,

however, did not himself perform any testing on the underwear to

confirm the lack of sperm. Further, even if there were no sperm in the

seminal fluid and the seminal fluid was not a result of sexual activity on

the night in question, these facts would not have diverted suspicion away

from King as the assailant on the night of the attack.

      Soll also confidently asserted that, if he had examined the sperm

in the vaginal swab, he would likely have been able to find identifiable

DNA. Yet, he did not perform further testing on the sample. This was
                                           16

likely a tactical decision, as King had admitted to counsel that he had

engaged in unprotected intercourse with A.A.                The failure to perform

further tests on the vaginal swab material, and indeed on any of the

samples, makes King’s postconviction relief claim less compelling.

       Soll offered potential theories that undermined some aspects of the

State’s evidence, but he would have left the jury to speculate whether his

theories were, in fact, correct.        Also, the lack of identifiable sperm or

seminal fluid is not determinative of King’s guilt. Indeed, even assuming

that Soll’s revised opinion would have tended to discredit the testimony

regarding DNA in the victim’s underwear, the presence of King’s DNA on

the victim’s neck in the vicinity of hickey-like bruises suggests precursor

activity consistent with the victim’s allegation that King engaged in

sexual intercourse with her. Further, Soll’s testimony will not challenge
the evidence of physical injuries that strongly indicates that a sexual

assault in fact occurred or that King’s story to the police evolved from a

claim not to know the victim into a charge that the victim smashed his

windshield on the night of the alleged incident. 2                See Harrington v.

Richter, 562 U.S. ___, ____, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624, 647

(2011) (concluding the defendant failed to show prejudice in part because

new expert evidence offered in the posttrial proceeding did not challenge

other conclusions and evidence presented by the State at trial, including

the defendant’s shifting story regarding his involvement in the crime).




       2Interestingly, King offered evidence at the postconviction relief hearing that
tended to further incriminate him. A party-goer, Dan Freese, testified that King and the
victim left the apartment together in the early morning hours and that, upon return, the
victim announced that she and King had sex. King was only charged with consensual
sex under Iowa Code section 709.4(2)(c)(4). Therefore, Freese’s testimony tended to
further incriminate King.
                                             17

         In light of the entire facts and circumstances, we conclude that

King has failed to demonstrate a reasonable probability under Strickland

that the verdict would have been different in this case if the defense had

presented the evidence developed in the posttrial hearing related to

DNA. 3

         D. Failure to Present Additional Testimony and Evidence of

Motive. King also asserts that his trial counsel was ineffective for failing

to elicit testimony from several witnesses at the party A.A. and King

attended prior to the alleged assault. According to King, these witnesses

would testify that several other men at the party touched A.A.’s breasts.

He also claims they heard A.A. announce that she and King had

consensual sex. 4 As we and the district court previously noted, the sole
issue in this case is whether King and the victim had sex.

         Under these circumstances, we find it impossible to believe that

testimony indicating others had touched the breasts of a fifteen-year-old

girl who just announced she had sex with King would have changed the

jury’s verdict. King, therefore, has not shown a substantial probability

that a different outcome would have resulted had the additional evidence

been offered. Indeed, as pointed out by the district court, such evidence,

far from exculpating King, would have reinforced his guilt of sexual

assault in the third degree, which only requires a sex act between a

fourteen or fifteen year old and a person four or more years older than

the teenager. See Iowa Code § 709.4(2)(c)(4).




         3Wereach our result under the Sixth Amendment of the United States
Constitution and independently under article I, section 10 of the Iowa Constitution.
         4By the time of trial, one of these witnesses had left the country unbeknownst to
King’s trial counsel.
                                          18

      King also suggests that his counsel provided ineffective assistance

because he failed to call a witness who would have testified that A.A.

made a previous false report of rape. While King offers evidence that the

witness would have so testified, there has been no showing that the

claim was false.      As a result, the statement would not be admissible

under Iowa law, State v. Alberts, 722 N.W.2d 402, 409 (Iowa 2006), and

the claim of ineffective assistance necessarily fails.
      Finally, counsel was not ineffective for failing to present evidence of
A.A.’s possible motives for making a false claim of sexual assault. King
asserts trial counsel should have asked the victim about her request for
her family members to be reimbursed for lost wages in connection with
the case. He also claims A.A. may have made up the sexual assault to
avoid paying damages for allegedly vandalizing his car on the evening in
question.   Evidence related to the alleged vandalization of the car did
come into the record through the testimony of a police officer who
interviewed King, and thus the failure to present additional evidence does
not present a strong ineffective-assistance claim.           Even if counsel’s
failure to present evidence of A.A.’s possible motives for accusing King
constituted ineffective assistance of counsel, it is hard to see how these
relatively minor issues had a reasonable probability of affecting the
outcome of this case.         Our confidence in the outcome has not been
undermined by these alleged shortcomings of King’s counsel as required
by Strickland.
      IV. Conclusion.
      King has failed to meet the prejudice prong of Strickland.               As a
result,   the    district   court   properly   denied   King’s   application    for
postconviction relief.
      AFFIRMED.
      All justices concur except Mansfield, J., who takes no part.
