                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2183
                               Filed July 19, 2017


DENIS GAILEY,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, William C.

Ostlund, Judge.




      Denis Gailey appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., Potterfield, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                          2


MAHAN, Senior Judge.

       Denis Gailey appeals the district court’s denial of his application for

postconviction relief following his 2008 convictions for two counts of kidnapping

in the first degree, one count of arson in the second degree, and one count of

burglary in the first degree. Upon our review, we affirm the court’s order denying

Gailey’s application for postconviction relief.

I.     Background Facts and Proceedings

       In its ruling affirming Gailey’s convictions on direct appeal, this court set

forth the following facts surrounding the incident leading to Gailey’s charges:

               The charges at issue in this case arose from a series of
       events that occurred on April 25, 2007. At the time, Gailey was
       under a protective order prohibiting contact with his wife, Dawn,
       and step-daughter, Jane Doe II. Dawn, accompanied by the police,
       went to the family home to retrieve some belongings. Inside they
       discovered diesel fuel poured throughout the home and several
       suicide notes apparently written by Gailey. Dawn went to the
       elementary school to pick up the couple’s six-year-old daughter,
       Jane Doe I. After driving away from the school, Gailey appeared in
       a car and blocked Dawn’s path with it. He approached the driver’s
       side window of Dawn’s van, pointed a gun at her, and told her to
       open up the door and that he was going to blow her head off. He
       showed her the bullet in the gun and told her he was not playing
       around. He then ordered Dawn to get out and pull his car over to
       the side of the road. Dawn complied, Gailey climbed into the back
       of the van with their daughter, and Dawn returned to the driver’s
       seat. He then told Dawn to drive out to a farm. When Dawn asked
       him what he was doing he said that he was going to kill her, their
       daughter, and himself. He was yelling, swearing, and saying
       nonsensical things.
               During the drive, both Gailey and Dawn received calls on
       their cell phones. During one call, Gailey told his father that
       everything was his father’s fault and had he not found Dawn and
       Jane Doe I, he would have killed his father and brothers. At the
       farm, he ordered Dawn to park the van behind a shed so they could
       not be seen and to shut off the headlights. He then stated that they
       “were going to relive some childhood memories,” took the headrest
       off the driver’s seat, pointed the gun at Dawn’s head and asked “do
       you want it in the head or in the heart.” When Dawn asked him not
                                            3


         to do it and urged that it was not the right thing to do and that there
         were other ways to handle the situation, Gailey got angry and told
         her to quit begging. Dawn kept talking to Gailey and was able to
         convince him not to kill them and that they could all leave town
         together. Gailey then made a call to retrieve some money he had
         asked a friend to hold for safekeeping.
                 They left the farm, exchanged the money in a parking lot,
         and began driving again, with Dawn driving and Gailey and Jane
         Doe I in the back seat. An officer began following them and a high
         speed chase ensued. Dawn suggested they stop but Gailey
         demanded otherwise. He then told her to stop but ordered her to
         back up toward the officer. She did this but stopped before hitting
         the officer. Gailey then climbed into the front seat and the chase
         continued at even higher speeds. Dawn convinced Gailey to throw
         the handgun out the window and shortly thereafter, the officers
         rammed the van into a ditch. Dawn picked up Jane Doe I and fled
         to an officer’s vehicle.
                 Gailey was charged with multiple crimes, including two
         counts of first-degree kidnapping, and one count of first-degree
         burglary, and second-degree arson. At trial, the State introduced
         into evidence a tape recording Dawn made of a phone conversation
         she had with Gailey on April 21, 2007, several days before the
         alleged kidnapping. During the phone conversation Gailey made
         incriminating statements when Dawn confronted him about whether
         he sexually abused Dawn’s daughter from a previous relationship
         and his step-daughter, Jane Doe II. The court admitted the taped
         conversation and a transcript of the recording over the defense’s
         objection. Following a jury trial, Gailey was convicted on all
         counts[.1]

State v. Gailey, No. 08-0628, 2009 WL 778772, at *1-2 (Iowa Ct. App. Mar. 26,

2009).

         This court affirmed Gailey’s convictions, rejecting his challenges to the

sufficiency of the evidence to support his kidnapping conviction and the district

court’s consideration of improper sentencing factors. Id. at *2-3, *5-6. The court

preserved Gailey’s claim of ineffective assistance of counsel on two evidentiary



1
 Gailey later pled guilty to additional charges of two counts of sexual abuse in the third
degree, possession of a firearm as a felon and habitual offender, and eluding law
enforcement while committing a felony as a habitual offender.
                                          4


issues regarding his taped phone conversations with Dawn discussing his prior

sexual abuse of his step-daughter. Id. at *4.

         Gailey filed an application for postconviction relief (PCR), contending his

trial counsel was ineffective in failing to preserve error on his evidentiary claims.

Gailey later filed an amended PCR application through counsel, claiming trial

counsel was ineffective in failing to object to various jury instructions. Following

a hearing, the PCR court entered an order denying Gailey’s claims.

         Gailey appeals. Facts specific to his claims on appeal will be set forth

below.

II.      Standard of Review

         We typically review the district court’s ruling on an application for

postconviction relief for correction of errors. Nguyen v. State, 878 N.W.2d 744,

750 (Iowa 2016). However, we conduct a de novo review of PCR claims of

ineffective assistance of counsel because they assert constitutional infirmities.

Id.

III.     Discussion

         To prevail on a claim of ineffective assistance of counsel, Gailey must

show “(1) counsel failed to perform an essential duty; and (2) prejudice resulted.”

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of

counsel fails if either element is lacking. See State v. Clay, 824 N.W.2d 488, 495

(Iowa 2012).
                                          5

       A.     Confinement or Removal Element

       Gailey contends his trial counsel was ineffective in failing to object to the

kidnapping marshalling instruction as not containing the “intensifiers” required by

Iowa case law. According to Gailey, the court’s instruction “resulted in a less

demanding standard to prove the confinement or removal element of first-degree

kidnapping.” The challenged instruction provided:

               A person is “confined” when her freedom to move about is
       substantially restricted by force, threat or deception. The person
       may be confined either in the place where the restriction began or
       in a place to which she has been removed.
               No minimum time of confinement or distance of removal is
       required. It must be more than slight.
               In determining whether confinement exists, you may
       consider whether:
               1. The risk of harm to Dawn Gailey and [Jane Doe I] was
       increased.
               2. The risk of detection was reduced.
               3. Escape was made easier.
               An intent to secretly confine means more than restricting the
       movement of a victim. It means an intent to conceal or hide a
       victim or prevent her discovery.

       Gailey claims the instruction should have included language requiring the

jury to find the risk of harm was “substantially” increased, the risk of detection

was “significantly” reduced, and escape was made “significantly” easier.2 See

State v. Robinson, 859 N.W.2d 464, 481 (Iowa 2015) (observing the question in

reviewing a kidnapping conviction is “whether, on the totality of the

circumstances, the State offered sufficient evidence that a jury could find beyond

a reasonable doubt that the defendant’s confinement of the victim substantially

2
  The instruction tracked the uniform Iowa Criminal Jury Instruction 1000.5 (2012),
promulgated by a committee of the Iowa State Bar Association and approved by this
court in State v. Ripperger, 514 N.W.2d 740, 750 (Iowa Ct. App. 1994) (affirming the
same instruction upon concluding it “appropriately conveyed the law” and complied with
the uniform instruction).
                                           6

increased the risk of harm, significantly lessened the risk of detection, or

significantly facilitated escape”); State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981)

(creating the “Rich tripartite test,” as applied in Robinson); see also Ripperger,

514 N.W.2d at 750 (“In kidnapping cases in which there is an ‘underlying’

offense, the confinement or removal necessary to sustain a conviction must be

more than ‘incidental’ to the commission of the underlying offense.”).

       Even assuming Gailey’s trial counsel had a duty to object to the

confinement instruction without the intensifiers,3 we cannot find Gailey suffered

prejudice as a result of his counsel’s omission. See Clay, 824 N.W.2d at 501 n.2

(“The court always has the option to decide the claim on the prejudice prong of

the Strickland test, without deciding whether the attorney performed deficiently.”).

Under these facts and circumstances, we conclude there is no reasonable

probability the addition of the “intensifier” language in the marshalling instruction

would have changed the outcome of Gailey’s case. See State v. Braggs, 784

N.W.2d 31, 34 (Iowa 2010) (setting forth the standard to establish prejudice—a

reasonable probability that but for his counsel’s alleged deficiencies, the result of

the proceedings would have been different).           The jury was presented with

evidence that Gailey’s conduct substantially increased the victims’ risk of harm

and significantly lessened his risk of detection—Gailey told the victims he was

going to kill them and himself, and admitted he poured fuel throughout the family
3
  The Robinson court’s special concurrence observed, “Even a cursory review of our
caselaw would have revealed we repeatedly emphasized the risk of harm must be
substantial and the lessened detection and ease of escape must be significant.” 859
N.W.2d at 492 (Wiggins, J., concurring specially). The special concurrence stated
reasonably competent counsel would have considered the claim regarding the
confinement instruction to be “worth raising.” Id. Iowa Criminal Jury Instruction 1000.5
was modified in 2015 to reflect the intensifier language. See State v. Ronnau, No. 14-
0787, 2016 WL 3511314, at *10 n.7 (Iowa Ct. App. Jan. 27, 2016).
                                             7


home, and he forced them to endure a terrifying ride to a secluded area at gun-

point followed by a high-speed chase with law enforcement. See Gailey, 2009

WL 778772, at *1-2; see also Ronnau, 2016 WL 3511314, at *10 (“Based on the

overwhelming evidence that Ronnau confined and removed A.M. from the west

side of Iowa Street to the east side of Iowa Street, without her consent, and

intentionally subjected her to sexual abuse or serious injury, we find no

reasonable probability of a different outcome had counsel objected to the uniform

jury instruction.”).

       Because Gailey has not established the necessary prejudice to succeed

on his ineffective-assistance-of-counsel claim, we affirm on this issue.                See

Dempsey v. State, 860 N.W.2d 860, 862 (Iowa 2015) (“Reversal is warranted

only where a claimant makes a showing of both elements.”).

       B.      Serious Injury Element

       Gailey next contends his trial counsel was ineffective in failing to object to

the inclusion of an intent-to-commit-serious-injury element in the kidnapping

instructions.4 According to Gailey, “[t]he record does not adequately support that

element”; rather, “[t]he record reflects [he] intended to coerce Dawn to go back to

the farm so that they could exchange money.”

       Upon our review, we conclude Gailey’s contention is unsupported by the

record; at a minimum, the jury was presented evidence that Gailey pointed a gun

at Dawn’s head multiple times and threatened to kill Dawn and Jane Doe I. The



4
  Specifically, the jury was instructed that to convict Gailey of kidnapping in first degree,
the jury must find he removed or confined the victims with the specific intent to either “(a)
inflict serious injury upon [them], or (b) secretly confine [them].”
                                            8


jury could have concluded Gailey intended to seriously injure his victims. 5

“[C]ounsel has no duty to raise an issue that has no merit.” State v. Griffin, 691

N.W.2d 734, 737 (Iowa 2005).

       C.      Evidentiary Objections

       Gailey also claims his trial counsel was ineffective in failing to adequately

object to evidence involving a “separate crime” and a “different victim.” In the

challenged evidence—taped phone conversations between Gailey and Dawn—

Dawn accused Gailey of sexually abusing Jane Doe II. At the beginning of the

conversation, Dawn stated, “And [Jane Doe II] told us that she has had to . . . has

been having sex with you,” and continued, “That you made her have sex to be

able to do things.”     Gailey admitted to the sexual abuse, conceding that “it

happened,” but blamed Jane Doe II and his own father in addition to himself, and

Gailey made several references to suicide, talked about needing a gun, and

stated he was going to “get rid” of the family home and its “bad history.”

       Gailey contends the conversations with Dawn were inadmissible as

hearsay and as prior bad acts under Iowa Rule of Evidence 5.404(b). See Iowa

Rs. Evid. 5.801(c); 5.802, 5.404(b). Trial counsel objected to the admission of

the challenged evidence as follows:

              Yes, Your Honor, I would object. No foundation, hearsay,
       confrontation rights, the prejudicial effect outweighs the probative
       value, the probative value is substantially outweighed by the danger
       of unfair prejudice to my client, and irrelevant. Now there are parts
       on the tape that may be relevant, there are parts that aren’t relevant
       and there’s clear hearsay involving the alleged statements out of
       persons that have not testified in this case, and therefore, which no
       exception to the hearsay rule has been established.

5
  We further conclude Gailey’s challenge to the failure to define the term “serious injury”
in the context of these facts is unpersuasive.
                                          9



       This court concluded counsel’s objection “was not sufficient to preserve

error” on either Gailey’s hearsay or prior-bad-acts objection. See Gailey, 2009

WL 778772, at *4. Gailey contends he was prejudiced by counsel’s failure to

raise adequate objections because the evidence would have been excluded had

counsel done so, and “this was not an isolated piece of evidence, but rather a

detailed and extensive phone call containing extensive evidence of the abuse.”

For the following reasons, we disagree.

       Hearsay is not admissible unless it is admitted as an exception or

exclusion under the hearsay rule or some other provision. Iowa R. Evid. 5.802;

State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). “Testimony is not hearsay if it is

‘received as relevant circumstantial evidence reasonably necessary to complete

the whole story of the crime charged.’” State v. Summage, 532 N.W.2d 485, 488

(Iowa Ct. App. 1995) (quoting State v. Leonard, 243 N.W.2d 887, 890 (Iowa

1976)). “This type of evidence is not hearsay because it is not used to prove the

truth asserted; the evidence is received without reference to truth or falsity in it.”

Id.

       Here, the statements at issue completed the picture of the crime charged;

Dawn’s statements to Gailey were the trigger for the no-contact order and led to

Gailey’s “downward spiral” over the next four days. The statements were not

admitted to prove Gailey sexually abused Jane Doe II; rather, the statements

were relevant to explain Gailey’s motive and intent to set out the sequence of

events, culminating in the charged crimes.       Moreover, even if Jane Doe II’s

statements should have been excluded, Gailey’s own statements on the same
                                        10


subject would have been properly admitted; accordingly, the evidence was

“merely cumulative and therefore not prejudicial.”     See State v. Hildreth, 582

N.W.2d 167, 170 (Iowa 1998) (“[W]e will not find prejudice if the admitted

hearsay is merely cumulative. All of the information contained in A.E.’s parents’

testimony was repeated either by the social workers or in the testimony of A.E.

herself.   Therefore, we find that the testimony of A.E.’s parents was merely

cumulative and therefore not prejudicial.” (citation omitted)); State v. Bayles, 551

N.W.2d 600, 606 (Iowa 1996) (noting the defendant “provided evidence of his

other crimes” and admissions of a party opponent are not hearsay statements).

We affirm on this issue.

       “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that the person acted in conformity

therewith.” Iowa R. Evid. 5.404(b); State v. Cox, 781 N.W.2d 757, 760 (Iowa

2010). In other words, such evidence “is not admissible to demonstrate the

defendant has a criminal disposition and was thus more likely to have committed

the crime in question.” State v. Reynolds, 765 N.W.2d 283, 289 (Iowa 2009)

abrogated on other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708

n.3 (Iowa 2016).    “However, prior bad acts are admissible if offered for the

purpose of establishing ‘motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.’” Cox, 781 N.W.2d at 760 (quoting

Iowa R. Evid. 5.404(b)).

       Here, as set forth above, the conversation between Gailey and Dawn days

before the charged crime was relevant to demonstrate Gailey’s motive and
                                           11


intent.6   And the evidence was not unfairly prejudicial considering its high

probative value. See Bayles, 551 N.W.2d at 607 (noting if the court “determines

other-crime evidence is relevant, it must then decide whether its probative value

is substantially outweighed by the danger of unfair prejudice”). Considering the

facts and circumstances of this case, it is highly unlikely the jury would have

convicted Gailey solely on the basis of the challenged evidence. We also note

the jury was given a cautionary instruction limiting the use of the evidence, which

“help[ed] to nullify the danger of unfair prejudice.” See id. at 608.

IV.    Conclusion

       Upon consideration of the issues raised on appeal, we affirm the district

court’s denial of Gailey’s PCR application.

       AFFIRMED.

       Danilson, Chief Judge, concurs; Potterfield, Judge, concurs specially.




6
  The PCR court predicted “even if trial counsel had made his objection the way that
applicant suggests, the trial court would have ruled in the same manner and admitted
the recordings.” The PCR court observed Gailey’s trial counsel had objected to the
tapes as being covered by the marital privilege, and the district court ruled to allow the
evidence, stating:
       I listened to the tapes and obviously the bulk of the tape recording
       probably deals more with an allegation against this defendant for sexual
       abuse, which I’m aware of the fact that that would be something that
       would be taken up a later time, a different charge, not here, but it also . . .
       contains information that I think is relevant to perhaps motive, intent,
       perhaps ways of doing something in this particular case.
(Emphasis added.)
                                          12


POTTERFIELD, Judge. (concurring specially)

       I write separately because I disagree with the majority’s finding that

counsel did not beach an essential duty by failing to raise an effective objection

to the evidence of sexual abuse of a child. That evidence was the subject of

severed charges, was not necessary to the completion of the picture of the crime

of kidnapping, and, while relevant to motive, was unfairly prejudicial. See State

v. Nelson, 791 N.W.2d 414, 420, 423 (Iowa 2010) (defining inextricably

intertwined evidence as “evidence of the surrounding circumstances of the crime

in a causal, temporal, or spatial sense, incidentally revealing additional, but

uncharged, criminal activity” and explaining how although such evidence

“bypasses” Iowa Rule of Evidence 5.404(b), it is only admissible “to complete the

story of the charged crime when a court cannot sever this evidence from the

narrative of the charged crime without leaving the narrative unintelligible,

incomprehensible, confusing, or misleading”); see also McClure v. Walgreen Co.,

613 N.W.2d 225, 235 (Iowa 2000) (defining unfair prejudice as “the ‘undue

tendency to suggest decision on an improper basis, commonly though not

necessarily, an emotional one’” (citation omitted)).         Few subjects are more

prejudicial than evidence of sexual abuse of a child.             See, e.g., State v.

Castaneda, 621 N.W.2d 435, 441 (Iowa 2001) (“Obviously [the witness’s]

testimony [about a sex act]—which was in the context of children—would arouse

a jury’s sense of horror and would provoke its instinct to punish . . . .”).

       The majority assumes Gailey’s admission in the taped conversation to the

sexual abuse would have been properly admitted, making the remaining

evidence cumulative. But an objection based on Iowa Rule of Evidence 5.404(b)
                                          13


would have reached Gailey’s statements as well. Counsel’s failure to object fell

below the level of competence required of counsel. See Ledezma v. State, 626

N.W.2d 134, 143 (Iowa 2001) (noting there is a point when even “tactical or

strategical decisions made by counsel from a host of competing options falls

outside the broad scope of a reasonably competent attorney”).

       I agree with the district court judge that the admissible evidence against

Gailey was overwhelming to the extent he is unable to show the outcome of his

trial would have been different without the sexual abuse evidence. See State v.

Parker, 747 N.W.2d 196, 211 (Iowa 2008) (rejecting defendant’s claim of

ineffective assistance because the defendant could not establish prejudice,

where evidence properly in the record provided overwhelming evidence of

defendant’s guilt). I concur in the result.
