                       IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2001
                               Filed August 5, 2020


WARREN PURVIS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Colleen

Weiland, Judge.



       Warren Purvis appeals the dismissal his petition for postconviction relief.

AFFIRMED.



       Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason

City, for appellant.

       Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.



       Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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MAY, Judge.

       Warren Purvis appeals the dismissal of his application for postconviction

relief. We affirm.

I. Background

       A jury convicted Purvis of sexual abuse in the first degree, a class “A” felony;

willful injury resulting in serious injury, a class “C” felony; and domestic abuse

assault impeding breathing or circulation of blood resulting in injury, a class “D”

felony. He was sentenced to life imprisonment.

       Purvis appealed. This court affirmed. State v. Purvis, No. 13-0794, 2014

WL 3511795, at *1 (Iowa Ct. App. July 16, 2014). Our opinion included this factual

summary:

       On December 23, 2012, [the victim] and Purvis were in an intimate
       relationship and living together in [the victim]’s home. At some point
       in the evening, [the victim] posted a message on Facebook, stating,
       “Anyone, please call police and have them come to [the victim’s
       address]. Please help me now.” One of [the victim]’s friends called
       the police, and the police officers then proceeded to the address for
       a welfare check.
               The police arrived to [the victim]’s home at approximately
       6 p.m. Purvis answered the door when the police officers knocked.
       The officers testified they heard a faint female cry for help upon
       entering the residence. They found [the victim] in the back bedroom,
       lying in bed. She had bruises and marks on her face and chest. [The
       victim] told one of the officers Purvis had physically and sexually
       assaulted her. She said Purvis had strangled her and bit her. She
       told officers she thought she had lost consciousness twice. The
       police called the paramedics, who then transported [the victim] to the
       hospital in the ambulance.
               As one of the officers talked with [the victim] in the bedroom,
       another talked with Purvis in the living room. The officer did not
       advise Purvis of his Miranda rights. Purvis was not placed in
       restraints or told he was under arrest. Purvis sat on the living room
       couch as he talked with Officer Eernisse.             They spoke for
       approximately ten minutes before a taking a short break. Purvis and
       Officer Eernisse then spoke for approximately thirty minutes more.
       Purvis admitted to Officer Eernisse that he fought with [the victim]
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and that he slapped her a couple times. Purvis told the officer he
and [the victim] had consensual sex even though they had been
fighting. During the questioning, Purvis told the officer he had taken
twenty Lortab pills because he wanted to kill himself. The officers
called an ambulance, and Purvis was transported to the hospital.
          Purvis was examined at the hospital at approximately
7:20 p.m. by Dr. Singh. The doctor noted Purvis was drowsy, but
that he could talk and was capable of being alert. He was able to
answer the doctor’s questions. Dr. Singh noted a “very minimal” odor
of alcohol emanating from Purvis. Lab results showed his blood
alcohol content was .073 and urine drug screen results showed he
had opiates in his system. Dr. Singh testified the opiates would make
a person drowsy. Purvis was released from the hospital at
approximately 10:50 p.m.
          After Purvis was discharged from the hospital, he was
transported to the police station. Purvis was placed in an interview
room and given water. He was not handcuffed or restrained. Purvis
was read his Miranda rights and asked if he understood them. He
acknowledged that he did. He was then told to read the waiver form,
which listed the Miranda warnings and stated:
          I have read this statement and understand my
          rights. I am willing to make a statement and answer
          questions. I do not want to consult an attorney or have
          one present at this time. I understand I may decide at
          anytime to exercise these rights and decline to answer
          any further questions or make a statement.
          Purvis signed and dated the form before talking with the
officers.
          Purvis was able to provide Officers Hugi and Kemna with
biographical information, but he originally told officers he could not
remember the events of the day. The officers continued talking to
Purvis for approximately forty minutes. The officers then left Purvis
in the interview room and “gave him a break.” Officer Eernisse, who
had talked to Purvis in the home, then joined the other three in the
interview room. Officer Eernisse reminded Purvis what he said
during their discussion in the home. Purvis admitted he forced [the
victim] to have sex with him after he physically assaulted her. The
interview lasted for approximately thirty minutes. Purvis then agreed
to provide a written statement, and the officers left the room.
          Purvis filled out a cover form, which stated “This statement is
freely and voluntarily given without promises, threats or coercion
. . . ,” and signed his name. He handwrote a statement, which read,
in part:
          So I grabbed her by the throat and hit her several times.
          She grabbed my necklace and tore it off of me. So I bit
          her nose then she bit my arm so then I leaned on her
          throat with my forearm. Then I hit her in the chest
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               about 3 or 4 times. Then hit her in the face a few times.
               Then made her have sex with me. After that I told her
               that I wanted to die. She said that she wanted to also.
               She took some pills and dumped the rest into my hand.
               I went to the fridge and got 2 beers and sat down on
               the floor. She called into work sick. Then I fell asleep,
               when I woke up I told her that the pills weren’t working.
               She said, “Take some of the Codine.” So I did. Then I
               fell asleep again. When I woke up, the police were
               knocking on the door. I regret doing that!
               On January 4, 2013, Purvis was charged with first-degree
       sexual abuse, willful injury resulting in serious injury, and domestic
       abuse assault impeding breathing or circulation of blood causing
       bodily injury.
               ....
               A jury trial was held on the matter on April 2–5, 2013. [The
       victim] testified at trial that Purvis physically and sexually assaulted
       her. She also testified about her resulting injuries and ongoing
       medical complications, namely dizziness, posttraumatic stress
       disorder (PTSD), limited use of one of her hands, and partial loss of
       hearing in one ear. Medical personnel who treated [the victim] on
       the night of December 23 also testified about the sexual assault
       examination which revealed skin irritation around [the victim]’s
       vagina and an abrasion on her labia. A CT scan showed, among
       other things, a broken nose and subarachnoid hemorrhaging, also
       known as a brain bleed. [The victim]’s injuries required her to spend
       two days in the intensive care unit.

Id. at *1–3.

       For reasons that will be discussed below, we mention three additional

pieces of background. First, during jury selection, one potential juror—who we

identify as Juror P—acknowledged knowing the victim because he “drove stock

car for her dad years ago.” Counsel then asked Juror P: “Do you think that would

affect your ability to listen to the facts and evidence in the case where she’s a

victim?” Juror P responded, “No.” Counsel followed up by asking: “You still feel

that you could be fair and impartial?”        Juror P. answered in the affirmative.

Ultimately, Juror P served on the jury that convicted Purvis.
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       Second, the State called Kristen Evans, a criminologist who works at the

Iowa Division of Criminal Investigation Criminalistics Laboratory. Evans testified

that she had analyzed a buccal swab from Purvis and a sexual assault kit from the

victim. The kit included oral, vaginal, anal, and inner-thigh swabs. Evens testified

(1) all of the victim’s swabs screened negative for seminal fluid; (2) she found no

spermatozoa in the victim’s swabs; and (3) she found no indication of male DNA

on any of the victim’s swabs.

       Finally, Purvis testified at trial. He told the jury he had consensual sexual

contact with the victim in the shower. He claimed she “backed up to [him] and [his]

penis went between her legs.” Purvis also testified that, following the shower, they

had consensual sex in the bedroom. But he only put his penis “partway in” and

stopped before ejaculating, he claimed. He admitted that, hours later, he “got mad

and beat her up.” But he denied forcing her to have sex with him.

       As noted, the jury ultimately found Purvis guilty as charged. Following his

unsuccessful direct appeal, Purvis filed this postconviction-relief case. Purvis

claims his trial counsel was ineffective. The district court concluded otherwise and

dismissed Purvis’s application. This appeal follows.

II. Standard of Review

       “We review claims of ineffective assistance of counsel de novo.” King v.

State, 797 N.W.2d 565, 570 (Iowa 2011). “In conducting our de novo review, ‘we

give weight to the lower court’s findings concerning witness credibility.’” Id. at 571

(citation omitted).

       “To establish [a] claim of ineffective assistance of counsel,” the claimant

must show their “trial counsel failed to perform an essential duty and counsel’s
                                           6

failure resulted in constitutional prejudice.” State v. Walker, 935 N.W.2d 874, 881

(Iowa 2019). “The claimant must prove both elements by a preponderance of the

evidence.” State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012).

       To establish breach of an essential duty, the claimant must prove counsel

“perform[ed] below the standard demanded of a reasonably competent attorney.”

State v. Haas, 930 N.W.2d 699, 703 (Iowa 2019) (citation omitted). “In analyzing

the [claimant]’s claims, we ‘must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance . . . .’”

Id. (citation omitted). So the claimant “must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. (citation omitted).

       “To establish constitutional prejudice, the defendant is required to show ‘that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Walker, 935 N.W.2d at 881 (citation omitted). “It is not

enough for the defendant to show that the errors had [only] some . . . effect on the

outcome of the proceeding.” Id. (alteration and omission in original) (citation

omitted). “Rather, ‘[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’” Id. (alteration in original) (citation omitted).1




1 Purvis suggests Iowa should adopt different standards for prejudice. But the
standards explained above come directly from our supreme court. Any changes
to those standards may not come from this intermediate court of appeals. See,
e.g., State v. Hodges, No. 17-0712, 2018 WL 1433833, at *3 n.3 (Iowa Ct. App.
Mar. 21, 2018) (“As an intermediate court of appeals, we are not at liberty to
overrule controlling supreme court precedent.”).
                                         7


       When the applicant fails to show constitutional prejudice, it is not necessary

for the court to decide whether counsel breached a duty. See id.; King, 797 N.W.2d

at 574 (“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.”).

III. Analysis

       Purvis raises two ineffective-assistance claims. First, Purvis claims counsel

was ineffective in failing to obtain a DNA expert to provide testimony or at least

help with trial preparation. “A reasonably competent attorney,” Purvis argues,

“would understand the importance of DNA evidence and the need to confront the

State’s handling of the evidence and the conclusions being made.”

       We disagree. The State’s DNA expert, Evans, testified to finding no seminal

fluid, no spermatozoa and, indeed, no male DNA in the victim’s swabs.              A

reasonably competent attorney could see no need to “confront” Evans, whose

testimony can be reasonably described as favorable to Purvis.

       But Purvis emphasizes that expert assistance might have led to more and

better expert testimony concerning epithelial (skin) cells, which can be exchanged

during a sexual encounter. As the PCR court noted, though, there was no real

question as to whether there was a sexual encounter: Purvis testified that there

was. The central question was whether the sex was consensual. And based on

our de novo review of the record, we agree with the State that the presence or

absence of skin cells would not have shown whether a sexual encounter was

consensual or not. Moreover, even if additional evidence about skin cells might
                                          8

have shed some light on the consent issue, it could not have shed enough

favorable light to outweigh the overwhelming evidence of nonconsensual sex,

including Purvis’s own written confession that he had “made her have sex with

[him].”2 Put differently, Purvis has shown no “reasonable probability that . . . the

result of the proceeding would have been different.” Walker, 935 N.W.2d at 881

(citation omitted). So Purvis cannot prevail on this claim.

       For his second and final claim, Purvis argues counsel was ineffective for

failing to use a strike to remove Juror P. See Iowa R. Crim. P. 2.18(9). We think

the PCR court properly analyzed this issue:

       The transcript reveals that the juror “drove stock car for [the victim’s]
       dad years ago.” He knew the family well enough to recognize the
       victim by a nickname, but he also verified that his ability to listen to
       facts and evidence and to be fair and impartial would not be affected
       by this relationship. Purvis’[s] argument that this juror’s presence on
       the jury prejudiced him is entirely speculative. [Trial counsel’s]
       testimony and the evidence makes clear that the many moving parts
       of selecting peremptory strikes were considered by [trial counsel].
       Neither prong of ineffective assistance of counsel is proven.

Like the PCR court, we reject Purvis’s claim regarding Juror P.




2 In the criminal trial, Purvis’s written statement was admitted as Exhibit 15. Here
is an excerpt:
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IV. Conclusion

      Purvis has failed to prove that “trial counsel failed to perform an essential

duty” or that Purvis suffered “constitutional prejudice.” Walker, 935 N.W.2d at 881.

The PCR court was right to dismiss Purvis’s application.

      AFFIRMED.
