                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0759
                            Filed September 17, 2014

CHRISTOPHER SKILES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      An applicant seeks postconviction relief from his conviction for second-

degree arson and conspiracy to commit a felony. AFFIRMED.



      G. Brian Weiler, Davenport, for appellant.

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

General, and Michael J. Walton, County Attorney, for appellee.



      Considered by Vogel, P.J., Bower, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                           2



MILLER, S.J.

       Christopher Skiles seeks postconviction relief from his convictions for

second-degree arson and conspiracy to commit a felony.                He claimed he

received ineffective assistance because defense counsel (1) did not investigate

the case, (2) did not impeach the testimony of some witnesses, and (3) should

have objected to certain evidence. Skiles has not shown counsel breached an

essential duty or that he was prejudiced by counsel’s performance. We affirm

the decision of the district court denying his application for postconviction relief.

I.     Background Facts & Proceedings

       On August 9, 2005, shortly before 4:00 in the morning, there was a fire at

Links Gentlemen’s Club in Davenport, Iowa. Images from a surveillance camera

showed two men drove up in a white van. One of the men poured something

from a gasoline can, and the other man started the fire. The men then drove

away. For more than a year police officers were not able to identify either the

van or the men.

       Eventually, officers received an anonymous tip and connected the van in

the video to Joshua Wright. When questioned, Wright admitted his participation

in the incident and identified Christopher Skiles as the other man. At the time of

the fire, Wright and Skiles were employed by Tuxedos Show Club. Wright stated

he and Skiles had been working at Tuxedos during the day on August 8, 2005.

After they got off work, early on August 9, 2005, they went to Walmart to buy a

gasoline can, then went to Links, where they started the fire.
                                        3



      Officers showed still images from the video to Ronald Farkas, the owner of

Tuxedos, and Stephen Houston, the manager of the club.           Both Farkas and

Houston identified Skiles as one of the men in the pictures. Houston also stated

that in the early morning hours of August 9, 2005, he received a telephone call

from Skiles who said, “‘mother f***** burn,’ or something like that.” Cell phone

records showed Skiles called Houston at 3:55 a.m. and again at 4:12 a.m.

      Skiles was charged with arson in the second degree and conspiracy to

commit a felony. A jury trial was held commencing on March 19, 2007. The jury

found him guilty of both charges. Skiles was sentenced to ten years in prison.

His direct appeal of his conviction was dismissed as frivolous. See Iowa R. of

App. P. 6.1005.

      On June 17, 2008, Skiles filed an application for postconviction relief,

claiming he had received ineffective assistance of defense counsel. A hearing

on his application was held on March 1, 2013. Skiles’s former defense counsel

and Skiles testified at the hearing. The district court denied Skiles’s application

for postconviction relief, finding he had not shown defense counsel breached an

essential duty or that he was prejudiced by counsel’s performance.          Skiles

appeals.

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
                                              4



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.      Skiles claims he received ineffective assistance because defense

counsel did not investigate the case or interview potential defense witnesses. He

provided defense counsel with a list of nine witnesses he believed would be

helpful. Skiles also points out that Wright told officers he had discussed the fire

with “several” people at work, and Skiles believes defense counsel should have

tracked down these people and questioned them. Skiles asserts these witnesses

could have provided evidence to show Farkas and Houston were biased against

him.   He asserts these witnesses could have provided evidence to impeach

Wright’s statement that the fire was motivated by dislike of Arabs.                    Skiles

believes these witnesses also could have impeached Wright’s testimony that

Skiles was at work at Tuxedos that day. Furthermore, Skiles claims defense

counsel should have attempted to obtain surveillance video from Walmart, which

he contends would have disproven Wright’s testimony that they went there to buy

a gasoline can.

       At the postconviction hearing, defense counsel recalled talking with Skiles

about possible witnesses.1 He stated, “I would have called any witnesses that I

thought had relevant, admissible material which would have aided in Mr. Skiles’s


1
  Defense counsel no longer had his trial court records, having given them to substitute
counsel after the trial. Also, upon the request of the clerk of court, the trial court exhibits
had been destroyed. The postconviction hearing was held in 2013 and defense counsel
had little independent recollection of the trial, held in 2007.
                                         5



defense.” Defense counsel testified, “when we talked about the alibi witnesses,

it’s my recollection as I sit here today that none of the alibi witnesses Mr. Skiles

provided were during the cogent time period of when the evidence otherwise

showed the fire started.” Defense counsel agreed he had not attempted to obtain

surveillance video from Walmart.

       “When complaining about the adequacy of an attorney’s representation, it

is not enough to simply claim that counsel should have done a better job.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). “The applicant must state the

specific ways in which counsel’s performance was inadequate and identify how

competent representation probably would have changed the outcome.” Id. Here,

Skiles speculates that there were witnesses who could have supported his

contention Farkas and Houston were biased against him, would have testified he

was not at work at Tuxedos on August 8, 2005, and would have testified he was

not a racist. He also speculates there was Walmart surveillance video and it

would have impeached Wright’s testimony.

       For the most part, it is largely unknown what witnesses Skiles believes

would have supported his defense. For the witnesses he has identified, it is

unknown what their testimony would have been. We also note it is unknown

whether there even was a Walmart surveillance video, and if there was such a

video, what it would have shown.         Skiles has the burden to show by a

preponderance of the evidence counsel was ineffective. See McKettrick, 480

N.W.2d at 55. We agree with the district court’s conclusion Skiles did not meet
                                         6



his burden of proof concerning potential witnesses and a possible Walmart

surveillance video.

        B.      1.    Skiles contends defense counsel should have attempted to

impeach the trial testimony of Wright with evidence that he was not at work at

Tuxedos on August 8, 2005. We first note Wright testified Skiles sometimes was

around Tuxedos even when he was not working. Thus, even if employment

records showed Skiles was not at work that day, it would not necessarily mean

Skiles had not been at Tuxedos. In addition, whether or not Skiles was at work

at Tuxedos during the day on August 8, 2005, does not answer the question of

whether he and Wright went to Links and started a fire in the early morning hours

of August 9, 2005. Wright’s testimony on matters relevant to the time of the fire

was corroborated by his interview with police officers, the video from the Links

surveillance camera, and cell phone records. Thus, we do not believe there is a

reasonable probability that impeachment of Wright on the issue of whether Skiles

was working at Tuxedos on August 8, 2005, would have changed the result of

the trial.

        Skiles claims defense counsel should have challenged Wright’s testimony

by delving into his plea deal,2 his falling out with Skiles, and Wright’s criminal

record.      All of these matters were addressed during the prosecutor’s direct

examination of Wright during the criminal trial. Skiles has not shown how further

examination of these issues during cross-examination would have probably


2
  Wright pled guilty to arson in the second degree and conspiracy to commit a felony.
He had not yet been sentenced, and stated under the terms of the plea agreement the
State would recommend probation. Wright stated he was not required to testify in any
specific manner, but was to “testify truthfully at any proceeding requested.”
                                        7



changed the result of the trial. We also note defense counsel testified at the

postconviction hearing, “I always try to be very sensitive regarding cross-

examination of any witness in front of a jury. I think that jurors’ perception of

cross-examination is a critical part of evaluating how and what to cross-examine

a witness on.” We conclude that under the circumstances presented counsel’s

decision concerning the extent of cross-examination was a reasonable tactical

decision.

      2.     Skiles claims defense counsel should have done more to

undermine the credibility of Houston. He points out Houston did not do anything

after receiving the telephone call from Skiles on the night of the fire and Houston

and Farkas were sitting in the same room when they identified him from the

photographs provided by officers. During cross-examination defense counsel did

ask Houston about the telephone call on the night of the fire, and there was

evidence that sometimes Skiles would call Houston while he was inebriated and

“say a lot of stupid things.” We also note defense counsel questioned Houston

extensively on the size and shape of the room they were sitting in when he and

Farkas identified Skiles from the photographs.

      Skiles additionally claims defense counsel should have questioned

Houston about Wright’s statement to officers that Houston was aware of the fire,

but Houston told Wright he would disavow all knowledge if questioned. Wright’s

statement about what Houston said to him would have been hearsay, and

therefore, not admissible.   See Iowa R. Evid. 5.802.       Furthermore, even if

defense counsel could have raised this issue, it does not change the fact
                                          8



Houston testified he had known Skiles since they were children and he identified

him from the photographs shown to him by officers. We conclude Skiles has not

shown he received ineffective assistance of counsel on this issue.

       C.     1.     Skiles contends he received ineffective assistance because

defense counsel did not object to the testimony of Sam Graham, a billing

configuration specialist with I-Wireless. He claims defense counsel should have

required the State to provide a foundation to allow Graham to testify about the

technology of cell phone towers, how they operate, and their range. Graham

testified that he testified in court quite often and had testified throughout the state

of Iowa. He testified the company’s records showed “an identification number of

the cell site that handled the call.” He also stated, “On a cellular telephone

network, when a customer makes or receives a call it’s managed through a cell

tower, which has distinctive cell site information on it, and that identification

identifies which tower was used.” Graham’s testimony was used to show Skiles’s

general location when he called Houston at 3:55 a.m. on August 9, 2005.

       Defense counsel testified at the postconviction hearing that Graham

testified on “almost a weekly basis regarding cell phone towers and locations and

the like.” He stated he believed Graham “was the appropriate representative of

the phone service to provide the testimony about towers in phones and

interpretation of the bill.” As the State notes, if defense counsel had objected,

the State might well have been able to establish a foundation for Graham’s

testimony. Skiles has not shown the contrary, that Graham was not a qualified
                                            9



and appropriate person to testify about cell phone towers and the records of

Skiles’s calls.

       2.         During the criminal trial, the Davenport fire marshall, Mike Hayman,

was asked to review the video from the Links surveillance camera.                 The

prosecutor asked him, “What did that appear to be, what you just saw there?”

Hayman responded, “I would believe that to be Mr. Skiles with a gas can, pouring

gas along the building.”        Skiles contends he received ineffective assistance

because defense counsel did not object to this testimony by Hayman.

       The district court found this testimony was cumulative to the testimony of

Wright, who identified Skiles as the person who poured out gas at Links. In

addition, the video showed a person pouring out gas at Links, and Farkas and

Houston identified Skiles from still photographs obtained from the video. Skiles

has not shown a reasonable probability the result of the trial would have been

different if defense counsel had objected to the testimony of Hayman.

       D.         Skiles claims he was prejudiced by the actions of his defense

counsel. He asserts defense counsel utterly failed to prepare a defense. In

order to show prejudice, an applicant must show “there is a reasonable

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

proceeding would have been different.” Ledezma v. State, 626 N.W.2d 134, 143

(Iowa 2001) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). An

applicant has the burden of proof to show there is a reasonable probability the

jury would have come to a different verdict, if not for the actions of counsel. Id. at

144-45.
                                          10



       We have already discussed the prejudice component in relation to many

of Skiles’s claims.      For all of the claims Skiles brings in his application for

postconviction relief, we determine he has failed to show there is a reasonable

probability the jury would have come to a different verdict if his defense counsel

had acted differently. There was overwhelming evidence of Skiles’s guilt based

on the testimony of Wright, the video, the identification of Skiles by Farkas and

Houston, and the cell phone records.

       We affirm the decision of the district court denying Skiles’s application for

postconviction relief.

       AFFIRMED.
