                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0997
                             Filed December 24, 2014


DAVID E. WILLOCK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clarke (ruling on motion for summary disposition), and Andrea J. Dryer

(postconviction trial), Judges.



       David Willock appeals from the denial of his application for postconviction

relief. AFFIRMED.




       Kent A. Simmons, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith and

Raymond Walton, Assistant County Attorneys, for appellee State.




       Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
                                              2


DANILSON, C.J.

          David Willock appeals from the denial of his application for postconviction

relief. To establish an ineffective-assistance-of-counsel claim, a claimant must

prove by a preponderance of the evidence (1) his counsel failed to perform an

essential duty and (2) prejudice resulted. Willock has failed to prove his various

claims of ineffective assistance. We therefore affirm the denial of his application

for postconviction relief.

          I. Background Facts and Proceedings.

          Criminal proceedings.      The following facts were summarized in former

appeals from Willock’s convictions of first-degree kidnapping, first-degree

burglary, and first-degree robbery:

          Shortly after midnight on October 16, 2002, [S.S.] awoke when she
          heard a loud noise in her Waterloo home. Three men with guns
          came into her bedroom. They were wearing dark clothing, ski
          masks with “the eye and the mouth hole,” and gloves. One of the
          intruders was around six feet tall, “a lot larger, broader shoulders,
          lighter comple[xion], bigger lips.” The other intruders were shorter,
          “one quite small” and “then one an average build, but skinnier.”
                  The intruders asked [S.S.] if there was anyone else in the
          house. She told them her two children were home. They asked
          where the children were, and she pointed to her daughter’s
          bedroom. The intruders used duct tape to restrain [S.S.]’s children
          and left them upstairs. They then duct-taped [S.S.]’s mouth, hands,
          and ankles and carried her downstairs to the living room. The
          largest intruder watched [S.S.] while the other two went upstairs
          and ransacked her belongings.          The two men came back
          downstairs and began yelling at her, “Where is it?”1 They told her
          that she “better get” two men named Lamont Horton and Alonzo
          Quinn to come to her house.
                  Horton was [S.S.]’s former boyfriend. He had been at her
          residence the night prior to the incident. [S.S.]’s friend, Lindsay
          Bakken, was dating Quinn. Horton and Quinn were drug dealers.
          The intruders told [S.S.] that they were at her residence because
          Horton and Quinn had sold them bad drugs.

1
    The police discovered a large quantity of cocaine at [S.S]’s residence the next morning.
                                         3


               [S.S.] told the men that Quinn was at Bakken’s nearby
       residence and gave them the address. She also gave them
       Horton’s telephone number, and they attempted to call him from her
       house phone. They became upset when Horton did not answer, so
       [S.S.] convinced them to let her call Horton and leave him a
       message. Before she called Horton, she heard one of the intruders
       in the kitchen drinking something from her refrigerator. She asked
       for a glass of water, and one of the intruders brought her some in a
       Mickey Mouse mug.
               When Horton did not respond to the message [S.S.] left for
       him, the men beat and sexually assaulted her. They left her
       residence with cash, a leather computer bag, and jewelry. One of
       them returned briefly and asked for directions to Bakken’s house.
       After he left, [S.S.] freed herself and called the police.
               Detective Scott Lake interviewed [S.S.] immediately
       following the incident.        She gave the detective a physical
       description of each of the intruders, but she did not tell him that she
       recognized any of them. However, later that same day, [S.S.] told
       her uncle, brother, and Bakken that she believed one of the
       intruders was Willock. She told Bakken, “You know, I might have
       been through a big ordeal, but I just swear to you it sounded just
       like Dave’s voice.”
               [S.S.] knew Willock because Bakken was dating him.
       Bakken had brought Willock to [S.S.]’s house on October 5, 2002.
       [S.S.] gave Willock a tour of her home while Bakken finished getting
       ready.
               DNA testing was performed on the water jug present in
       [S.S.]’s refrigerator on October 16 and the Mickey Mouse mug she
       used to drink out of during the incident. Willock’s DNA was present
       on both.

State v. Willock, No. 07-1200, 2008 WL 783372, at *1-2 (Iowa Ct. App. Mar. 26,

2008) (Willock III).

              David Willock lived in the same house as his brother,
       Richard. Muscatine law enforcement authorities obtained a search
       warrant for the house to investigate possible identity theft by
       Richard.     The warrant listed “notes, receipts, ledgers, [and]
       documents” relating to the person whose identity was claimed to
       have been stolen and relating to the fraudulent purchase of a
       vehicle in that person’s name. The warrant made no mention of the
       crimes for which David Willock was being investigated. However,
       Muscatine authorities knew of that investigation and invited
       Waterloo and Cedar Falls police to assist with the search.
              During the search, a Waterloo detective found a Wal-Mart
       receipt showing purchases of duct tape and ski masks. The receipt
                                              4


         was in the bedroom of Richard Willock.          The receipt was
         photographed, and a copy of the photograph was admitted at
         [David Willock’s] trial. This evidence became the subject of David
         Willock’s motions to suppress.2

State v. Willock, No. 06-0343, 2007 WL 750646, at *1 (Iowa Ct. App. Mar. 17,

2007) (Willock II).

         Willock was charged with first-degree kidnapping, first-degree burglary,

and first-degree robbery in connection with the October 16, 2002 events.3

Following a retrial related to the October 16, 2002 events, a jury found Willock

guilty as charged. Willock appealed, challenging the district court’s rulings on

(1) his motion for new trial, (2) his motions to suppress, (3) his hearsay

objections, (4) his objection to the details of a witness’s prior conviction, (5) a jury

instruction, and (6) the sufficiency of the evidence. Willock II, 2007 WL 750646,

at *1.

         With respect to the denial of his motion to suppress, Willock argued the

warrant held by Muscatine police for the search of Richard Willock’s house was

“mere subterfuge used by Cedar Falls and Waterloo law enforcement to avoid

the warrant requirement” to search for evidence related to charges against David

Willock. Id. at *2. Noting that the seizure of an object found in plain view is

justified where (1) the intrusion of the police was lawful and (2) the incriminating

2
   Guns were also found, but Willock’s counsel advised the court considering his first
suppression motion that he did not intend to challenge the admission of photographs of
the guns.
3
   Willock was also charged with second-degree kidnapping, first-degree burglary, and
first-degree robbery for an incident that occurred on October 26, 2002, involving two
different victims. All of the charges were tried together at his first jury trial. See State v.
Willock, No. 03–1944, 2004 WL 2951988, at *1 (Iowa Ct. App. Dec. 22, 2004) (Willock I).
Following a jury trial, he was found guilty of all the charges, but on appeal we reversed
the judgment and sentences and remanded for new trials, concluding the charges
stemming from the October 16 incident should have been severed from the charges for
the October 26 incident. Id.
                                         5


nature of the object was immediately apparent, we upheld the denial of the

motion to suppress. Id. (citing Horton v. California, 496 U.S. 128, 136 (1990);

State v. Chrisman, 514 N.W.2d 57, 60 (Iowa 1994)). We also rejected Willock’s

challenges to asserted hearsay and other evidentiary rulings, id. at *3-4; found

substantial evidence to support the removal alternative of kidnapping, id. at *5;

and concluded there was sufficient evidence to prove confinement independent

of the underlying crimes.     Id.   However, we conditionally affirmed Willock’s

convictions, id. at *6, remanding for consideration of his new trial motion based

on the weight of the evidence (which the trial court had not considered). Id. at *1.

       On remand, the district court rejected the motion for new trial, and we

affirmed on appeal. Willock III, 2008 WL 783372, at *4. We summarized the

district court’s reasoning:

                Upon reviewing the evidence and considering the credibility
       of the witness, the district court found a greater amount of credible
       evidence supported the guilty verdicts. The court noted that [S.S.]
       told three individuals less than four hours after the attack that
       Willock was “one of the three black masked men who broke into her
       home.” Two of those individuals testified at trial. Although [S.S.]
       initially told Detective Lake that Willock was not one of the
       intruders, she later told him Willock’s eyes, skin color, voice, and
       lips made her think that he could have been one of the attackers.
       The district court also noted that, as evidenced by the Wal–Mart
       receipt, Willock’s brother, Richard, “purchased duct tape and ski
       masks on the date of this event and duct tape and ski masks were
       used in the commission of this crime.” The court concluded the
       receipt therefore established that Willock “had access to these
       items or similar items.”
                The district court determined “[t]he DNA evidence is really
       what seals Mr. Willock’s fate.” DNA testing revealed that Willock’s
       DNA was present on both the water jug and the Mickey Mouse
       mug. Although Willock claimed he drank some water from a water
       jug in [S.S.’s] refrigerator while he was at her house on October 5,
       2002, [S.S.] and Bakken both testified they were with Willock the
       entire time he was there and he did not go into the kitchen to get
       something to drink. Furthermore, the State introduced evidence
                                          6


        that indicated [S.S.] most likely purchased that jug of water on
        October 9, 2002, four days after Willock was present in her home
        with Bakken.
               The opposing evidence cited by Willock simply does not
        preponderate heavily against the verdict.      The district court
        considered and rejected his arguments regarding this evidence,
        finding the jury could have reasonably reached different
        conclusions from the evidence.

Id. at *3.

        Postconviction proceedings.     Willock thereafter filed an application for

postconviction relief, raising five claims of ineffective assistance of his criminal

trial counsel. He asserted trial and appellate counsel failed to (1) effectively

challenge the search warrant, (2) effectively challenge the evidence obtained by

the search, (3) request a spoliation instruction concerning an unavailable

recording of a witness interview, (4) move in limine to exclude S.S.’s in-court

identification of Willock, and (5) effectively object to improper opinion testimony

by Detective Lake. Willock filed a motion for summary disposition, which the

postconviction court denied.

        Willock submitted “uncontested facts,” including,

                6. [Officer] Schwarz allowed the Waterloo and Cedar Falls
        officers to search the bedroom of Applicant wherein Applicant
        plainly did not share the bedroom with his brother or Cooks.
                7. Officers took a photograph of a handgun that was
        allegedly located under the pillow on Applicant’s bed. That photo
        and testimony explaining it were subsequently admitted in evidence
        before the jury.
                8. Officers located a receipt from a store in Applicant’s
        brother’s bedroom. That receipt was photographed and later linked
        to the purchase of duct tape and stocking caps with mask holes
        from a store in Iowa City. A photograph of that receipt and the
        explanation of the items on it were later admitted in evidence before
        the jury. Applicant’s brother testified before the jury to explain the
        receipt.
                9. Applicant’s trial and appeal attorneys did not frame the
        Motion to Suppress the Evidence to assert the Search Warrant was
                                        7


      obtained upon fraud by concealment and reckless disregard for the
      facts in the Application for Search Warrant.
              10. Trial and appeal counsel never asserted the photos and
      resulting testimony on the gun and receipt should have been
      excluded from evidence before the jury as the evidence was not
      relevant and clearly more unfairly prejudicial than probative.
              ....
              13. On October 21, 2002, Investigator Lake again spoke with
      the victim and asked her specifically about Applicant David Willock.
      She described events in Waterloo and Iowa City, and in-transit in
      between the two cities, when she spent a considerable amount of
      time with Applicant David Willock. In the same interview, she told
      Investigator Lake “she was sure David was not one of the
      intruders.” “She said David was very well built with big arms.” This
      October 21 interview is recorded in a report Investigator Lake
      completed October 23, 2002. (Ex. “B”).
              14. On October 31, 2002, Lake and Investigator Krantz
      conducted an interview with Applicant Willock at the Iowa City
      Police Department.        At that time, Applicant Willock told the
      investigators he lived at 1155 Weeber Street, in Iowa City.
      Applicant told police his brother, Richard, owned the house and
      other people living there were Jeff Cooks, Edwon Simmons, and
      Luther Hammett. Applicant also verified nicknames of Cooks and
      Hammett for the officers. This information is included in the report
      Lake prepared on November 5, 2002. (Ex. “C”).

      At the postconviction hearing, Detective Lake testified he believed that the

interview rooms at the police station in 2003 were equipped to record once the

room was entered, but in 2002 there was a choice to turn it on or leave it off. He

testified that “know[ing] my habits,” “I would have recorded an interview like” the

October 21, 2002 interview with S.S. (when S.S. stated she was sure that David

Willock was not among the intruders in her house). He repeated, “There is no

way that I would not have recorded that interview. That’s going to be my answer

to you on that. No way. I’m positive that interview was recorded. Whether

something happened technically, I can’t answer that, and I don’t remember that.”

However, Lake’s report of the interview did not indicate it was recorded and no

recording of the interview was ever provided.
                                           8


       Willock’s criminal trial attorney, John Bishop, testified he was co-counsel

with attorney John Lane during Willock’s 2003 trial. Bishop was also defense

counsel on direct appeal, and with Jill Ableidinger represented Willock during his

2005 trial. Bishop testified there had been a challenge to the search of the house

prior to the second trial and he had found a federal case he thought helpful. 4

Bishop testified he thought they had moved to suppress the marijuana found

during the search.5 He also testified he did not move to suppress the pictures of

the guns found during the search of the house because he believed they would

be found relevant and probative, though moving to suppress on grounds they

were unfairly prejudicial “couldn’t have hurt David.”

       The district court carefully analyzed and rejected each of Willock’s claims

of ineffective assistance of counsel. The court concluded,

               In addition to considering Willock’s claims individually, the
       court has considered the aggregate effect of what errors trial
       counsel did make and finds that, given the strength of the other
       evidence, including [S.S.’s] identification of Willock and the DNA
       testing results, Willock has failed to demonstrate that absent all of
       his attorneys’ errors, there is a reasonable probability that the
       outcome of the trial would have been different. Willock is not
       entitled to postconviction relief.

       Willock appeals.


4
  The record from the second trial indicates Bishop challenged the search of David
Willock’s room on grounds it was a warrantless search, noting the warrant executed was
for the residence of Richard Willock. Bishop had relied upon State v. Sanchez, 509 F.2d
886 (6th Cir. 1975), which invalidated the seizure of explosives by federal agents who
were assisting during the execution of a warrant issued to state law enforcement for the
search of narcotics. The trial court rejected that argument as no longer controlling
authority, citing United States v. Johnson, 707 F.2d 317, 320-211 (8th Cir. 1983)
(rejecting subterfuge claim where the evidence was found in plain view during a search
pursuant to a valid search warrant). Cf. Horton v. California, 496 U.S. 128, 136-37
(1990) (concluding item found in plain view during warrantless search need not have
been found “inadvertently”).
5
  There was no motion suppress the marijuana filed before the retrial.
                                         9


II. Scope and Standard of Review.

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

Lyman, 776 N.W.2d 865, 877 (Iowa 2010). We give weight to the district court’s

findings concerning witness credibility, but are not bound by them. Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001).

III. Discussion.

      “Ineffective-assistance-of-counsel claims have their basis in the Sixth

Amendment to the United States Constitution.” State v. Vance, 790 N.W.2d 775,

785 (Iowa 2010).    To establish an ineffective-assistance-of-counsel claim, a

claimant must prove by a preponderance of the evidence “(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.”

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)).         “The claimant must prove both

elements by a preponderance of the evidence.” State v. Madsen, 813 N.W.2d

714, 724 (Iowa 2012).

             To satisfy the first prong of the Strickland test, [the claimant]
      must show that “counsel’s representation fell below an objective
      standard of reasonableness.” Strickland, 466 U.S. at 688. In
      evaluating the objective reasonableness of trial counsel’s conduct,
      we examine “whether, in light of all the circumstances, the identified
      acts or omissions were outside the wide range of professionally
      competent assistance.” Id. at 690. We evaluate the attorney’s
      performance against “‘prevailing professional norms.’” Ledezma v.
      State, 626 N.W.2d 134, 142 (Iowa 2001) (quoting Strickland, 466
      U.S. at 688).

Madsen, 813 N.W.2d at 724.

      As already noted, the claimant must also establish counsel’s deficient

performance prejudiced him. Straw, 709 N.W.2d at 133. “[I]f a claimant raises
                                            10


multiple claims of ineffective assistance of counsel, the cumulative prejudice from

those individual claims should be properly assessed under the prejudice prong of

Strickland. The court should look at the cumulative effect of the prejudice arising

from all the claims.” State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012). Prejudice

exists if “‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” State v. Graves,

668 N.W.2d 860, 882 (Iowa 2003) (quoting Strickland, 466 U.S. at 694).            A

“reasonable probability” means “[t]he likelihood of a different result need not be

more probable than not, but it must be substantial, not just conceivable.” King v.

State, 797 N.W.2d 565, 572 (Iowa 2011). Counsel’s errors must “undermine our

confidence in the verdict.” Id. at 575.

       We address each of Willock’s claims in turn.

       A. Inadequate challenge to the search warrant. Willock first contends the

trial and appellate counsel failed to move to suppress based upon a claim that

the search warrant was obtained by fraud or misrepresentation when the

detective who applied for the search warrant did not inform the issuing magistrate

that three individuals, including David Willock, resided at the residence sought to

be searched in addition to Richard Willock and Jeff Cooks. The postconviction

court rejected this argument, finding Willock had failed to demonstrate he was

entitled to a Franks hearing6 and thus counsel did not breach an essential duty.

We find no reason to disturb this ruling.


6
  Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the United States
Supreme Court ruled:
      [W]here the defendant makes a substantial preliminary showing
      that a false statement knowingly and intentionally, or with reckless
                                        11


      The facts Willock asserts were omitted do not cast doubt on the existence

of probable cause regarding the Muscatine County investigation of identity theft.

The record indicates Detective Matthew Schwartz of the Muscatine Police

Department was investigating Richard Willock and Jeff Cooks for identity theft.

There is no evidence that Detective Schwartz pursued the search warrant under

the pretext of the identity theft allegations with the purpose of circumventing the

lack of probable cause to execute a warrant related to allegations against David

Willock.

      In any event, the argument appears to be a reworking of the claim counsel

did make on direct appeal—that the search warrant was obtained by subterfuge.

See Willock II, 2007 WL 750646, at *2. The present claim is a collateral attack

on that ruling, which we do not address. See Iowa Code § 822.8 (“Any ground

finally adjudicated . . . in any other proceeding the applicant has taken to secure




        disregard for the truth, was included by the affiant in the warrant
        affidavit, and if the allegedly false statement is necessary to the
        finding of probable cause, the Fourth Amendment requires that a
        hearing be held at the defendant’s request. In the event that at that
        hearing the allegation of perjury or reckless disregard is established
        by the defendant by a preponderance of the evidence, and, with the
        affidavit’s false material set to one side, the affidavit’s remaining
        content is insufficient to establish probable cause, the search
        warrant must be voided and the fruits of the search excluded to the
        same extent as if probable cause was lacking on the face of the
        affidavit.
438 U.S. at 155-56.
        “The Franks doctrine has been applied to situations involving the omission
of crucial information from a warrant application as well as the inclusion of
inaccurate information.” State v. Poulin, 620 N.W.2d 287, 289 (Iowa 2000).
“When such omissions are established, a court reviewing a magistrate’s finding
may determine the probable-cause issue by considering both the information
contained in the warrant application and the omitted information deemed to be
significant.” Id.
                                         12


relief, may not be the basis for a subsequent application [for postconviction

relief.]”).

        Finally, relying on our supreme court’s holding in State v. Fleming, 790

N.W.2d 560, 564-65 (Iowa 2010), Willock contends trial and appellate counsel

were ineffective in failing to move to suppress evidence found during the search7

as being outside the scope of the warrant.

        In Fleming, the defendant on appeal argued the district court erred in

overruling his motion to suppress, contending that when officers obtain a search

warrant for a single-family residence they must obtain a separate warrant to

search a rented room located therein. 790 N.W.2d at 561-62. Our supreme

court held for the first time:

        Generally, when single, unrelated persons live together in a house,
        the kitchen, living room, bathroom, hallways and entryways are
        communal space, but the individual bedrooms remain private. As a
        social norm, this is fairly well established; thus, many of these
        individuals probably do not feel the need to clearly delineate their
        personal space with locks or signs. We find a reasonable
        expectation of privacy in an individual room rented within a single-
        family house.

Fleming, 790 N.W.2d at 567. The court then found Fleming had demonstrated a

legitimate expectation of privacy in his bedroom because “Fleming rented a room

within Nearman’s house for $375 a month. He was not related to Nearman and

testified that he had exclusive possession and control of his room. There is no

indication he gave Nearman access to his private bedroom.” Id. While there had

been a warrant issued to search Nearman’s house for drugs, the court observed

7
  Specifically, he argues counsel should have moved to suppress the marijuana found in
David’s bedroom, the photographs of David’s handgun and the receipts for handguns
found in David’s bedroom, a photo of a handgun found in another bedroom in the house
(Hammett’s), and the photo of the Wal-Mart receipt found in Richard’s bedroom.
                                         13


that the application named only Nearman as having possession of drugs, “there

was no showing of probable cause to search Fleming’s room. Therefore, the

search of his room was warrantless.” Id. at 568. Because there was no showing

an exception existed to justify the warrantless search of Fleming’s room, the

court concluded the evidence seized from Fleming’s room during the search had

to be excluded on retrial. Id. at 569.

       Here, Willock presented the 2011 affidavit of his brother Richard, in which

he avers David was a tenant who paid rent of $400 per month to live at the

residence; each tenant had his own bedroom, which could be locked with a key;

and Richard was not authorized to enter David’s bedroom without David’s

permission. A photograph of a handgun and marijuana found in David’s room

were introduced at trial.

       The postconviction court ruled that because the legal issue was unsettled

at the time of Willock’s 2005 trial, trial counsel did have a duty to assert that

“searching Willock’s bedroom was outside the scope of the warrant to search

1155 Weeber, requiring a separate warrant for Willock’s bedroom.” See Millam

v. State, 745 N.W.2d 719, 723 (Iowa 2008) (“[T]he test to determine whether

counsel is required to raise an issue is whether a normally competent attorney

would have concluded that the question was not worth raising.” Graves, 668

N.W.2d at 881 [(citations, alterations, and quotation marks omitted)]. This test

does not require an attorney to be clairvoyant, but rather to research the relevant

legal issues and determine whether, given the circumstances of the particular

case, the issue is “worth raising.”). We need not rule on whether counsel failed

in an essential duty in not asserting the theory recognized in Fleming to support a
                                        14


motion to suppress. Even assuming the current claim can be distinguished from

the claim made on direct appeal, and that the officer deliberately omitted facts or

did so with reckless disregard, Willock’s claim fails. Counsel had no duty to raise

the issue successfully raised in the 2010 Fleming case because Willock has not

established he was prejudiced by the failure to file a motion to suppress on

Fleming grounds.

       As noted by the postconviction court, Willock failed to establish he was

prejudiced because (1) it was not clear that the motion would have been

successful (noting the Fleming court’s repeated reliance upon the lack of familial

relationship between Fleming and the owner of the house) and (2) even if the

motion to suppress evidence found in his bedroom had been successful, Willock

failed to establish the outcome of the trial would have been different. We reach

this conclusion because although the evidence from Willock’s bedroom may have

been suppressed, Willock had no standing to challenge the items found in the

other bedrooms. Consequently, the Wal-mart receipt showing the purchase of

duct tape and ski masks hours before the home invasion would still have been

admitted. At best, Willock could have suppressed all evidence of a handgun or

knowledge of a handgun in the house. The outcome of the trial would not have

changed as the State still had evidence of S.S.’s identification of Willock as one

of the intruders, Willock’s DNA from S.S.’s water container, and the Wal-Mart

receipt.

       B. Inadequate challenge to the evidence obtained by the search. Willock

argues “[t]he various and separate items taken in the search of Richard’s house

have no evidentiary link to the crimes perpetrated upon S.S.” He maintains the
                                          15


cumulative effect of the evidence obtained from the search of Richard’s house

constituted improper character evidence, which trial counsel should have sought

to have excluded.

      The postconviction court rejected this claim, summarizing:

      The photograph of the Wal-Mart receipt, the photograph of
      Willock’s bedroom, the photograph of the firearm found in his
      bedroom, the photograph of his safe, the photographs of the
      firearms receipts, and the photograph of the firearm found upstairs
      had significant probative value. The Wal-Mart receipt linked Willock
      to the purchase of duct tape and ski masks. The intruders who
      entered [S.S.’s] home wore ski masks and used duct tape to
      restrain [S.S.] and her children. The photographs related to the
      firearms established that Willock had access to a firearm. The
      intruders were armed with handguns.

      On October 16, 2002, S.S.’s home was invaded by three masked intruders

bearing guns, who complained S.S.’s boyfriend Horton had sold them bad

drugs—they used duct tape to bind S.S. and her children. We agree the Wal-

Mart receipt indicating ski masks and duct tape were purchased the day before

the home invasion, which was found in the house where Willock lived, was

relevant and highly probative evidence.

      S.S. testified David Willock was one of the armed intruders. She had met

him prior to the night of the invasion because he was seeing S.S.’s friend,

Lindsay Bakken, and he had been in S.S.’s residence on October 5 and asked

for a tour. The evidence presented at trial was that the intruders were looking for

Horton and Quinn because they sold them bad drugs. Bakken testified at the

criminal trial that Quinn and Horton sold marijuana and cocaine. Bakken also

testified Willock knew Horton and Quinn. With this background and in connection

with the Wal-Mart receipt, a motion to exclude the marijuana and the guns found
                                        16


in the same house would not have been successful on grounds it was irrelevant.

See Iowa Rs. Evid. 5.401 (“‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.”), 5.402 (“All relevant evidence is admissible except as

otherwise provided . . . .”).

       Willock complains the evidence raises the implication “the armed men

living in Richard’s house were a dangerous drug dealing enterprise.” He argues

counsel should have sought to exclude it as unfairly prejudicial. See Iowa R.

Evid. 5.403 (allowing exclusion of relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice”).        Exclusion of

relevant evidence “is required only when evidence is unfairly prejudicial [in a way

that] substantially outweighs its probative value. ‘Unfair prejudice’ is the undue

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

necessarily, an emotional one.” State v. Huston, 825 N.W.2d 531, 537 (Iowa

2013) (citations and internal quotation marks omitted).

       For Willock to successfully prove counsel was ineffective in failing to move

to exclude gun and drug evidence found during the search, he would have to

show exclusion was required. See id. at 536 (Iowa 2013) (noting “[w]e reverse a

ruling that the district court makes in the balancing process under rule [5.403]

only if the district court has abused its discretion”). We cannot say a trial court

presented with a motion to exclude the evidence would have abused its

discretion in overruling such a motion.      S.S. identified Willock as one of the

armed intruders who entered her home on October 16, 2002, seeking a man who
                                           17


had sold them bad drugs. Willock’s DNA was found in a water jug at S.S.’s

home.    The receipt for the October 15, 2002 purchase of duct tape and ski

masks, as well as guns found in Willock’s residence were highly probative of

Willock’s participation.8 The men who broke into S.S.’s home announced their

motive was drug related, and the introduction of marijuana found during the

search of the house in which Willock lived was not unduly prejudicial. This claim

of ineffective assistance of counsel fails.

        C. Failure to request a spoliation instruction concerning an unavailable

recording of interview of S.S. Willock contends there was a recording of the

October 21, 2002 interview of S.S. in which she states she is sure Willock was

not one of the intruders.       He claims its absence is purposeful—that “Lake

intentionally did away with S.S.’s tape exonerating David.” He maintains trial

counsel should have requested a spoliation instruction. We are not convinced.

               A spoliation instruction is “a direction to the jury that it [may]
        infer from the State’s failure to preserve [evidence] that the
        evidence would have been adverse to the State.” The definitive
        Iowa case on a defendant’s entitlement to a spoliation instruction
        based on the government’s destruction of evidence is State v.
        Langlet, 283 N.W.2d 330 (Iowa 1979).           In that case this court
        noted the general principle that when evidence is intentionally
        destroyed, “the fact finder may draw the inference that the evidence
        destroyed was unfavorable to the party responsible for its
        spoliation.” This inference is based on the rationale that a party’s
        destruction of evidence is “an admission by conduct of the
        weakness of [that party’s] case.” Accordingly, “the spoliation
        inference is not appropriate when the destruction is not intentional.”



8
  Willock points out that there is no evidence the duct tape and ski masks purchased
were used in the home invasion. But there was evidence that the type of duct tape
purchased was one of two that were used. The receipt and guns found during the
search tended to show Willock had access to the types of items used during the
invasion. “Direct and circumstantial evidence are equally probative.” Iowa R. App. P.
6.904(3)(p).
                                         18

              We held in Langlet there must be substantial evidence to
      support the following facts in order to justify a spoliation inference:
      (1) the evidence was “in existence”; (2) the evidence was “in the
      possession of or under control of the party” charged with its
      destruction; (3) the evidence “would have been admissible at trial”;
      and (4) “the party responsible for its destruction did so
      intentionally.” Before instructing the jury on the inference, the trial
      court must make a threshold determination that the foundation for
      the inference is sufficient, in other words, that “‘a jury could
      appropriately deduce from the underlying circumstances the
      adverse fact sought to be inferred.’”

State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (citations omitted).

      We acknowledge Detective Lake testified at the postconviction hearing

that he would have recorded the interview with S.S. on October 21, 2002. But

his report of that interview does not state the interview was recorded, and Willock

has presented no evidence there was in fact a recording made of the October 21,

2002 interview.9 Because a spoliation instruction requires a showing that the

missing evidence was “in existence,” a motion for spoliation instruction would not

have been granted. See id.

      In any event, Detective Lake testified at the criminal trial that S.S. did state

on October 21, 2002, that Willock was not one of the intruders.                  S.S.

acknowledged at trial that she had told Detective Lake at one point that Willock

was not involved.

      D. Failure to move in limine to exclude S.S.’s in-court identification of

Willock. Willock next contends trial counsel was ineffective in failing to exclude

S.S. from making an in-court identification of Willock because it was contrary to

her October 21, 2002 “exoneration” and “wholly unbelievable.”           At trial, S.S.


9
 The county attorney indicated a recording could never be located or found to be in
existence.
                                           19


identified Willock as “definitely” one of the intruders. She testified she had told

Detective Lake at one point that Willock was not involved “because I didn’t know

who to trust at the time.” Bakken testified S.S. told her on October 16, “I don’t

know why I get this feeling, but I feel that David was there.” S.S.’s uncle testified

that the morning following the break-in S.S. stated “David from Iowa City” had

been involved and “said she recognized his tone of voice, his mannerisms and

build and structure.”

       We agree with the postconviction court that “[u]nder the circumstances,

[S.S.’s] credibility and the reliability of her in-court identification of Willock and her

out-of-court statements to Williams and Bakken that identified Willock were for

the jury to weigh.” See State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006)

(noting it is the province of the jury to resolve conflicts of evidence to and to pass

on the credibility of witnesses, determine the plausibility of explanations, and

weigh the evidence). Any motion to exclude S.S.’s identification would not have

been successful, and therefore Willock cannot establish counsel’s performance

was deficient.

       E. Failure to effectively object to improper opinion testimony by Detective

Lake. Finally, Willock contends trial counsel was ineffective in failing to object to

improper opinion testimony.

       “We have permitted an expert witness to testify regarding the ‘typical

symptoms exhibited by a person after being traumatized.’” State v. Dudley, ___

N.W.2d ___, 2014 WL 6851441, at *6 (Iowa 2014) (quoting State v. Gettier, 438

N.W.2d 1, 6 (Iowa 1989)). In addressing opinion testimony of an expert witness

in a child sex abuse case, our supreme court stated:
                                           20


       Although we are committed to the liberal view on the admission of
       psychological evidence, we continue to hold expert testimony is not
       admissible merely to bolster credibility. State v. Hulbert, 481
       N.W.2d 329, 332 (Iowa 1992). Our system of justice vests the jury
       with the function of evaluating a witness’s credibility. Id. The
       reason for not allowing this testimony is that a witness’s credibility
       “is not a ‘fact in issue’ subject to expert opinion.” Id. (quoting State
       v. Myers, 382 N.W.2d 91, 97 (Iowa 1986)). Such opinions not only
       replace the jury’s function in determining credibility, but the jury can
       employ this type of testimony as a direct comment on defendant’s
       guilt or innocence. Id. Moreover, when an expert comments,
       directly or indirectly, on a witness’s credibility, the expert is giving
       his or her scientific certainty stamp of approval on the testimony
       even though an expert cannot accurately opine when a witness is
       telling the truth. In our system of justice, it is the jury’s function to
       determine the credibility of a witness. An abuse of discretion
       occurs when a court allows such testimony. Id.

Id., 2014 WL 6851441, at *6.

       When a claim of improper opinion testimony is raised in an ineffective-

assistance-of-counsel claim, the claimant must not only establish counsel failed

to properly object to the testimony, but that prejudice resulted. See id. at *8

(citing In re Det. of Blaise, 830 N.W.2d 310, 320–21 (Iowa 2013) (noting in an

ineffective-assistance-of-counsel claim the burden is on the defendant to show

prejudice)).

       Willock contends the postconviction court erred in concluding improper

opinion testimony did not result in prejudice.10 The postconviction court found

two statements made by Detective Lake at trial constituted objectionable opinion

testimony. The first came in after an objection by trial counsel: Detective Lake

was asked,



10
   Willock does not specify what statements he finds objectionable but does direct us to
the district court’s ruling. This is barely sufficient to bring the issue to this court’s
attention.
                                         21


              Now, with regard to assault like this where you have three
      masked men and the use of firearms and the other things
      connected with this, tell us what your [twenty-one years of]
      experience is with regard to how quickly people are willing to say
      this is the person that did this to me or I think this is the person that
      did this to me?

The court instructed the jury to keep in mind that the answer would be an opinion

and it would be for them to make the assessment as to all of the facts, “including

this item of testimony.” Detective Lake answered,

             I guess my best answer to that or opinion to that would be in
      general terms when a person is subjected to something traumatic,
      as what happened here, I think that it’s one thing for that victim to
      tell people close to her suspicions they had about who may have
      done it, family or friends, but when it comes to telling law
      enforcement, somebody that they know is going to go confront that
      person with what the victim has said, I think that’s another thing,
      and I think that raises fear in people’s minds as to the
      repercussions, especially specifically in this case, as to the type of
      assault and the injury and the seriousness of what happened to her
      on this morning.

      The second statement made by Detective Lake about which Willock

complains came in at trial without objection—he was asked whether, in his

experience, people are generally willing to accuse other people of crimes if they

are not positively sure about the person’s involvement; his response was, “No.”

      We are not convinced either statement by Detective Lake provides any

information other than common sense or information known to jurors from their

common experiences. People commonly confide in their family and friends about

important affairs and generally, people do not make accusations unless they

know whom to accuse. However, we need not decide whether either or both

responses were improper opinion testimony because, upon our de novo review,
                                         22


we agree with the postconviction court that Willock has not established prejudice

resulted. We affirm the postconviction court’s reasoning:

       Willock has failed to establish that excluding Lake’s testimony on
       these matters likely would have changed the outcome of the trial.
       Lake’s speculation about [S.S.’s] state of mind was cumulative of
       other properly admitted evidence. [S.S.’s] uncle, Adam Williams,
       had already testified that on October 16, 2002, [S.S.] told him that
       she thought “it might be this guy from Iowa City named David” who
       had done this to her and that she had not told the police about
       David in Iowa City because “she was scared. She was very
       scared. She stated to me she was in fear of her life and the lives of
       her children . . . .” The statements that [S.S.] made to Williams
       were offered to explain Williams’ own conduct—why he relayed this
       information to John Daws of the Waterloo Police Department on
       October 17, 2002, with the understanding that his identity as the
       reporting party would be confidential.           Additionally, [S.S.’s]
       statements to Williams were properly admitted as hearsay
       exceptions pursuant to Iowa R. Evid. 5.803(3).             They were
       statements of [S.S.’s] then existing state of mind, emotion, or
       physical condition.
                Lake’s testimony as to the truthfulness of [S.S.’s]
       identification of Willock was brief, not extensive. Both [S.S.] and
       Lake were cross-examined at length about the facts that [S.S.]
       initially did not identify Willock as one of the intruders and at one
       time positively excluded him as one of them. In argument, one of
       the defense’s focuses was [S.S.’s] lack of credibility and the
       unreliability of statements she made both under oath and not under
       oath.

       In light of the facts that S.S. had already testified she did not identify

Willock earlier because she did not know who to trust, and that the objectionable

testimony was relatively brief, we agree Willock did not prove “there is a

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

the proceeding would have been different.” See Graves, 668 N.W.2d at 882.

Moreover, the State’s case did not rest entirely on S.S.’s identification of Willock;

Willock’s involvement is implicated by his DNA found on a cup and jug found in

S.S.’s residence and by the Walmart receipt found in Willock’s residence. Cf.
                                          23

State v. Brown, ___ N.W.2d ___, 2014 WL 6851443, at *4 (Iowa 2014) (finding

admission of opinion testimony prejudicial because the “State’s entire case

depends on the credibility” of child complainant).

IV. Conclusion.

       Willock has not proved counsel was ineffective, and we therefore affirm

the denial of his application for postconviction relief.

       AFFIRMED.
