                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1532
                               Filed July 22, 2015


LONNIE BATES JR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Thomas J. OʼFlaherty of OʼFlaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Melisa Zaehringer, Assistant

County Attorney, for appellee State.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

       Lonnie Bates filed an application for postconviction relief (PCR), asserting

among other claims, his trial counsel was ineffective in not obtaining a DNA

sample from other potential suspects for use in his defense. The district court

rejected this claim, affirming Bates’s conviction.    Bates appeals claiming the

district court made an error in the factual findings in its ruling. Upon our de novo

review of the record, we conclude the factual error made by the court did not

affect the court’s decision. We agree with the court’s conclusion that Bates failed

to prove his trial counsel rendered ineffective assistance when she did not seek

to obtain DNA samples from other potential suspects.

       Following a jury trial, Bates was convicted of second-degree sexual

abuse. State v. Bates, No. 10-1666, 2012 WL 3027122, at *1 (Iowa Ct. App. July

25, 2012). The facts of the assault are adequately outlined in the direct appeal

decision, and there is no need repeat them here. See id. After his conviction

was affirmed, Bates filed an application for postconviction relief alleging a

number of ways that his attorney was ineffective, including a claim his trial

attorney should have obtained DNA samples from the other adults who were

present at the scene when the assault took place. The testimony at trial and the

testimony developed at the PCR hearing established that DNA testing was done

on the victim’s clothing and body, and on Bates’s clothing. The testing did not

reveal any foreign DNA on either the victim or Bates. All testing done on the
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victim’s clothing and body showed only the presence of the victim’s DNA.1 All

testing done on Bates’s clothing showed only the presence of Bates’s DNA.

      In the factual findings made by the PCR court, the court stated that

Bates’s attorney testified there was DNA from Bates on the victim. While this

was an inaccurate statement of the attorney’s testimony in the PCR hearing, the

court went on to accurately state that the attorney also testified at the PCR

hearing there was no foreign DNA on the victim that was not identified. Because

of the lack of foreign DNA in the record, the PCR court concluded “it would have

been a pointless tactic in any event” to request DNA testing of the other adults at

the scene.

      Our review of a postconviction-relief action alleging ineffective assistance

of counsel is de novo.    See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa

2015). We make our own independent evaluation of the totality of the relevant

circumstances, though we do give deference to the district court’s credibility

assessments. Taylor v. State, 352 N.W.2d 683, 684, 687 (Iowa 1984). In a de

novo review, we carefully scrutinize the record and make our own findings of fact.

See Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 97 (Iowa 2011). Thus, we

need not reverse and remand for a new PCR hearing based solely on errors in

the factual findings of the district court’s decision. Any errors can be adequately

addressed on appeal without the need for a remand.




1
 We do note a sample taken from the victim’s fingernail scrapings showed DNA that
was too weak for a conclusive determination other than it was DNA from a male.
Because the sample was too weak, it could not have been tested to determine if it
matched other known DNA samples even if those samples had been obtained
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       In order to establish a claim of ineffective assistance of counsel, Bates

must prove by a preponderance of the evidence counsel breached an essential

duty and he suffered prejudice as a result. Taylor, 352 N.W.2d at 685. The facts

developed at trial and at the PCR hearing establish there was no foreign DNA

found on either the victim or Bates. Thus, obtaining DNA samples from the other

adults who were present at the scene of the assault would have been a fruitless

exercise. There was no unidentified DNA to which the known samples from the

other adults could have been compared. Because obtaining the samples would

not have affected the outcome of the trial, Bates cannot prove he was prejudiced

by counsel’s inaction. See Dempsey, 860 N.W.2d at 868 (noting we need not

address both elements of the ineffective-assistance test as a defendant’s failure

to establish either element is fatal to the claim).

       AFFIRMED.
