                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0709
                            Filed December 23, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN EMBREE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



      Brian Embree appeals his conviction for indecent exposure. AFFIRMED.




      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.




      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                           2


POTTERFIELD, Presiding Judge.

       Brian Embree appeals his conviction for indecent exposure. His argument

is twofold. First, he argues the district court improperly excluded evidence crucial

to his defense, thus not only violating the rules of evidence but also depriving him

of his constitutional rights. Second, he argues his trial counsel was ineffective in

several respects. We find that Embree has not preserved error on the court’s

denial of the evidence in question. We preserve his claim that his counsel’s

representation   was    constitutionally   deficient   for   possible   postconviction

proceedings. We therefore affirm his conviction.

       I.     Background Facts and Proceedings

       On June 11, 2013, Embree was living with his wife and his 15-year-old

stepdaughter, J.S. His wife was eight months pregnant at the time but was still

working. She left for work early that morning. J.S. was on summer break and

was still at home asleep after her mother left, so Embree woke her and told her

to let the family’s dogs out. J.S. got up, let the dogs out, and fed them. Then she

returned to her room. She was aware that Embree wanted her to get started on

additional chores, which were to include mowing the lawn, washing the dishes,

and dusting the living room. Embree came to his stepdaughter’s room a short

while later looking for her and found her watching television. It is at this point in

time that his and her accounts of the morning diverge dramatically.

       According to J.S.’s testimony at trial, she was sitting on a chair and

watching television when Embree entered her room without knocking.                She

thought he had come to yell at her because she was inside watching music

videos instead of doing the chores he had assigned to her. J.S. was surprised
                                        3


when Embree instead asked her if she would like to have sex with him. He had

never done anything like that before. In fact, the two got along, and she enjoyed

living with him. Taken aback, J.S. simply responded “no.” Embree assured J.S.

that she would enjoy it and tried to coax her into performing oral sex on him, but

she again said “no.” J.S. then retreated to her bed, where she backed into the

corner and covered herself up to her neck with a blanket.

      According to J.S., Embree continued to solicit her for sex, pulling his pants

down in order to expose his erect penis. At this point, J.S. turned away entirely

and covered her head with the blanket. From underneath the blanket, J.S. heard

him begin to masturbate. A short while later, Embree asked J.S. for permission

to use some of her lotion, but she kept covered and did not respond. She heard

him grab her lotion—cocoa butter—from atop her dresser, take off the cap, and

put some into his hand. He then resumed masturbating. While still hiding under

the blanket, J.S. heard “stuff dropping” onto the pink rug on her bedroom floor.

She believed that the sound she heard was Embree ejaculating. At that point,

she peeked out from underneath the blanket and saw Embree rubbing the pink

rug with a towel he had taken out of her laundry basket.        After he finished,

Embree turned and left without doing or saying anything further.

      Embree has always denied J.S.’s account. According to his testimony at

trial, he went to J.S.’s room immediately before leaving home for the day and

stopped momentarily to yell at her for not having begun her chores. He claims

nothing more happened: he did not ask J.S. to have sex with him; he did not ask

her to perform oral sex on him; he did not take off his clothing in her bedroom; he

did not expose his penis to her; she never hid from him underneath the covers of
                                        4


her bed; he never ejaculated in front of her; and he never got down to clean the

rug in her room.

        To simultaneously bolster his own account and discredit J.S.’s, Embree

wished to delve into evidence of electronic communications between J.S. and

A.R., a boy from school. Embree testified at trial that on the night of June 12,

2013, he caught J.S. with an electronic device—an iPod—that she had been

forbidden to use. Catching J.S. with the iPod was not particularly noteworthy, as

she had been punished for similar misbehavior in the past. However, Embree

hoped to focus at trial on the content discovered on the iPod. His primary point

of contention on appeal arises from the fact that he was not allowed to do so.

According to Embree, he discovered on the iPod a series of electronic messages

that detailed a sexually explicit conversation between J.S. and A.R. that had

taken place between June 4, 2013, and June 11, 2013.            Collectively, the

messages planned a series of future sexual encounters between J.S. and A.R.

The encounters were to take place at Embree’s home at a time of day when both

he and his wife would be at work. Embree’s theory of defense was that the

content of those iPod messages was so embarrassing and damaging to J.S. that

she was willing to do anything—namely, falsely accuse him of trying to have sex

with her and, when she refused to do so, masturbating in front of her—in order to

deflect her mother’s anger and avoid the full repercussions of her planned sexual

activities.

        On the morning of trial, the district court granted the State’s motion in

limine prohibiting Embree from referring to any sexual content on the iPod. The

court offered Embree an opportunity to proffer witnesses to make his record on
                                        5


his requested evidence. Later the court ruled Embree could not tell the jury that

he believed J.S. falsely accused him because he found a series of compromising

sexual messages on the iPod; he could only say that he believed J.S. did so

because he found she had used the iPod.

      Embree testified at trial that he took the iPod to his wife, who became

angry at J.S. It was at that time J.S. told her mother that Embree propositioned

her for sex. Embree’s wife became very upset and confronted him after J.S.

made the allegation. She asked Embree if what J.S. told her was true and then

slapped him across the face. She made a phone call, and the home was soon

visited by officers. The jury heard testimony that Embree told those officers he

believed J.S. made her accusation against him because he caught her with an

iPod. He even took the iPod with him to the Johnson County Sheriff’s Office

when he went in for an interview so the detective assigned to the case could

examine it.

      The causal link between the iPod and J.S.’s allegation against Embree

was disputed at trial. J.S. agreed that Embree came into her room the day after

the incident and found the iPod lying on her bedroom floor, that he took it to show

to her mother, and that her mother became angry and began yelling at her. But

she denied that the timing of her accusation against Embree was directly related

to his finding of the iPod. J.S. testified she had planned to tell her mother about

the incident from the outset but did not do so until the next night both because

she was scared and because an opportunity to be alone with her mother never

presented itself. When she was caught with the iPod, she told her mother about

Embree’s sexual advances the prior day.
                                         6


       Additional witnesses testified at trial, but none had any firsthand

knowledge of the incident itself. A.R. testified he was a friend of J.S.’s from

school, that the two had communicated electronically in the past, and that they

had planned to hang out in the future. He gave no testimony about the incident

itself. A friend of Embree’s wife testified that on the evening of June 12, 2013,

she had called the police at Embree’s wife’s request and then gone over to the

Embree residence with her husband in order to console J.S. and her mother.

Law enforcement officers from the Johnson County Sheriff’s Office testified about

their response to Embree’s home, where they conducted a preliminary

investigation and seized multiple items—the bottle of cocoa butter, the pink rug,

and several towels—for further testing and for use as evidence. A criminalist

with the State of Iowa’s Division of Criminal Investigation Crime Laboratory

testified she was able to microscopically identify spermatozoa in three different

locations on the pink rug, and the DNA profile of all three sperm profiles matched

that of Embree. She explained that the probability of finding such a profile in a

population of unrelated individuals chosen at random would be less than one out

of 100 billion. Finally, an employee with the Iowa Department of Human Services

and a forensic investigator with the St. Luke’s Child Protection Center testified

that as a part of the criminal investigation, J.S. was officially interviewed by the

forensic investigator, who was trained to speak with children.

       Embree did not dispute any of this testimony. He did, however, provide an

alternate explanation for the presence of his spermatozoa on the pink rug. He

explained that the pink rug had been in his bathroom prior to being placed in

J.S.’s room, and his semen may have landed on the rug during that time period
                                         7


because he had masturbated in the bathroom on multiple occasions. The rug

had never been washed since coming into the family’s home.

       At trial, Embree faced a single count of indecent exposure, in violation of

Iowa Code section 709.9 (2013).       His case went to trial on the morning of

Tuesday, February 18, 2014, and was submitted to the jury at 4:28 p.m. on

Wednesday, February 19, 2014.         At approximately 2:39 p.m. on Thursday,

February 20, 2014, the jury submitted a note to the court stating: “After much

deliberation and four votes, we are split and locked. We are asking for your

direction for how to proceed from here.” After conferring with the parties, the

court gave the jury an additional instruction urging it to continue deliberating in

hopes of arriving at a verdict. At 1:43 p.m. on Friday, February 21, 2014, the jury

returned a verdict of guilty.

       After he was found guilty, Embree changed counsel. His new counsel

filed a motion for a new trial, making substantially the same arguments Embree

now presents to us, along with an additional claim that the verdict was contrary to

the weight of the evidence. The district court held an evidentiary hearing on

Embree’s new trial motion but ultimately denied it.

       Embree now appeals.

       II.    Standard of Review

       We generally review the district court’s evidentiary rulings for abuse of

discretion. See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). But to

the extent Embree’s claims invoke his due process right to present a defense,

our review is de novo. See State v. Fox, 491 N.W.2d 527, 530 (Iowa 1992);

State v. Peterson, 532 N.W.2d 813, 816 (Iowa Ct. App. 1995); see also
                                           8

Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (adopting due process analysis

for a criminal defendant’s “right to put before the jury evidence that might

influence the determination of guilty”).

       We may decide ineffective-assistance-of-counsel claims on direct appeal if

we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.

We do so because such claims have their basis in the Sixth Amendment to the

United States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

       III.   Analysis

              A. Error Preservation

       Before we can discuss Embree’s claims, we must first address the State’s

argument that he has not properly preserved error regarding the disputed iPod

messages. Ordinarily, in order to preserve error related to a court’s ruling on a

motion in limine, a party must take the additional procedural step of making a

timely objection or offer of proof at trial. See State v. Tangie, 616 N.W.2d 564,

568 (Iowa 2000); Quad City Bank & Tr. v. Jim Kircher & Assocs., P.C., 804

N.W.2d 83, 89 (Iowa 2011). With respect to rulings excluding evidence from trial,

the party seeking to have the evidence admitted must make an offer of proof, the

purpose of which is both “to give the trial court a more adequate basis for its

evidentiary ruling and to make a meaningful record for appellate review.” See

Parrish v. Denato, 262 N.W.2d 281, 286 (Iowa 1978). The need to make a

meaningful record exists because the reviewing court cannot predicate error

upon speculation as to what testimony or evidence would have come in the

record had the objection not been sustained. Id. An offer of proof may take
                                        9


various forms, including a statement of proposed evidence into the record, the

examination of a witness outside of the jury’s presence to establish what the

witness’s testimony would be, or a written statement outlining the proposed

evidence. See Arnold v. Livingstone, 134 N.W. 101, 103 (Iowa 1912). What is

important is that the offer of proof creates a clear record that fully informs both

the trial court and the reviewing court, and invites neither confusion nor

speculation on the part of either. See Brooks v. Holtz, 661 N.W.2d 526, 529–30

(Iowa 2003) (discussing the sufficiency of an offer of proof consisting of a

complete and unredacted copy of a letter, where only portions of the letter were

sought to be admitted).

      However, when a district court rules on a motion in limine in such a way

that “it is beyond question whether or not the challenged evidence will be

admitted during trial,” the parties no longer have any reason to take such action

in order to preserve error. Tangie, 616 N.W.2d at 568–69. Such unequivocal

rulings, declaring evidence either admissible or inadmissible, generally constitute

final rulings and need not be questioned again during trial. State v. Alberts, 722

N.W.2d 402, 406 (Iowa 2006).

      The State alleges the district court’s motion in limine ruling related to the

iPod messages did not amount to a final ruling because it only prohibited

prejudicial reference to the sexual nature of the communications and because

the court intended for the ruling to be preliminary and subject to change at trial.

Thus, the State argues, because Embree never made an attempt to present the

messages to the district court as an offer of proof during his criminal trial, the

court never had the opportunity to issue a final ruling on the admissibility of the
                                         10


full set of iPod messages, and Embree forfeited any ability to complain about

their exclusion at trial.

       The morning of trial, the court discussed with counsel the State’s motion in

limine seeking to exclude mention of “an alleged sexual relationship between

[J.S.] and [A.R.].” The State based its motion in limine both upon a general

argument that the evidence was not relevant, presumably pursuant to Iowa Rules

of Evidence 5.401 and 5.402, and also on a more specific argument that the

evidence would violate the so-called “rape shield” law, as codified in Iowa Rule of

Evidence 5.412. Embree responded with a last-minute pretrial motion of his own

wherein he set forth his position that the sexual iPod messages between J.S. and

A.R. were relevant in that they were necessary to understand J.S.’s motivation to

make a false accusation against him, and that even if the evidence generally fell

within the ambit of the rape shield law, then a specific subsection of the rule still

allowed for the evidence to be introduced. His motion was accompanied by a

pleading captioned “offer of proof” that listed the iPod with messages, detailing

the sexual conversations between the two teens, and a disk that might have

contained a compilation of the messages. However, Embree did not attach the

listed items to the “offer of proof,” and as a result, we have no record before us

showing the messages that he intended to offer. Nor are we presented with the

foundation he intended to present for their admission.

       The court addressed the two motions by way of an oral ruling.            With

regard to Embree’s offer of proof, the district court and Embree’s counsel had the

following exchange:
                                         11


               THE COURT: All right. All right. Anything else you want to
       say on your offer of proof, [counsel], which I think relates to the
       State’s Motion in Limine?
               EMBREE’S COUNSEL: Yes, Your Honor. I have some
       items because they were not made as transcript. I got the Motion
       in Limine yesterday, so I prepared my answer, will file it this
       morning. I have—I have an iPod. I have a disk from an iPod. I
       have some sections of—
               THE COURT: Well, I understand that because that’s in your
       offer of proof.
               COUNSEL: Yes.

The court then proceeded to grant the State’s motion in limine. Although the

court only explicitly ruled on the State’s motion, in doing so it effectively ruled on

Embree’s motion in limine as simply a request for opposite relief. The oral ruling

was as follows:

               THE COURT: I’m going to grant the State’s Motion in Limine
       at this point. The issue of the taking of the iPod and the use of the
       iPod, if that was an issue that happened within the home,
       [Embree’s counsel], that you want to allege is the reason, I take it,
       for the alleged victim here to be angry with your client, um, that’s
       okay. But prior sexual conduct of this victim is not coming into this
       trial under any circumstances. When we get closer, if you want to
       make more of a proffer with your witnesses, we’ll take time to do
       that. But that’s my preliminary ruling, so unless and until I change
       it, there will be no commentary in voir dire, in opening, in cross-
       examination or in direct testimony of the victim’s alleged prior
       sexual conduct or comments, particularly if they happen before the
       date of this incident. Any questions about my ruling?
               EMBREE’S COUNSEL: Are you talking about the specific
       date the 11th of June or—
               THE COURT: I’m talking about anything other than what
       happened between your client and this girl. So if it’s a boyfriend or
       pictures she looked at online, none of that is going to come into this
       trial unless I change my ruling based upon something I hear later.
       Questions about that?
               EMBREE’S COUNSEL: No.

The State is correct that at that juncture, the court had couched its ruling as

preliminary and had reserved final ruling until a later time. The court invited

Embree’s counsel to “make a proffer at a later time.” But when the issue was
                                        12


raised again Embree’s attorney presented argument but no offer of proof. The

court ruled, based on what was in the minutes of testimony, saying:

              THE COURT: I ruled, and I continue to rule, that you’re not
      to talk about this child’s alleged sexual experiences, statements,
      texts, with anyone. She was a teenager. It wouldn’t surprise me
      that any teenager anymore would be thinking about, talking about
      sexual issues. That’s not the issue in this case. The issue is
      whether or not your client exposed himself in front of her. And just
      because he wants to bring that issue in as a possible defense
      doesn’t mean it’s admissible. So as we talked about earlier, if part
      of the defense is that there was some discipline or some action
      taken or somebody allegedly—this child allegedly caught in
      misbehavior that caused some problems within the home, if you
      want to construct that into a theory that that’s why she made up
      allegations, that’s typical. I think you’re entitled to do that. But
      you’re not going to talk about the details. It’s not going to happen.
      So no witness, and your client, if he testifies, is not going to testify
      about, from what I read about in the Minutes, about the fact that he
      caught her in all these texts. . . . So the bottom line, it’s we’re not
      going to get into this child’s alleged sexual history, period, not with
      her, not with any other witness. Anything I need to clarify about
      that?
              ....
              EMBREE’S COUNSEL: I understand that. But the problem
      is you don’t want me asking the questions as well as that.
              THE COURT: I said—I didn’t say I don’t want you to. I said
      you’re not going to. There’s a big difference. You’re not going to
      talk about this child’s alleged sexual history.
              ....
              THE COURT: I’m not trying to constrain your defense if the
      defense is in part or in whole that Mr. Embree as a parental figure
      has caught a child in some alleged misbehavior or was calling her
      on it or trying to impose some consequences, and that either the
      allegation expressed or the inference you’d like for the jury to draw
      is that she was upset, and her allegations were motivated by anger
      or revenge or deflection. Whatever that argument may be, that’s
      your argument to me. I am in no way trying to constrain that
      defense. What I’m saying, as a part of that defense the reasons
      why that issue came up to the extent that they relate to alleged
      sexual statements, behaviors or activities or thoughts of this child
      are a hundred percent off limits. Just like there’s plenty of ways to
      talk to a witness about something that was found or something that
      happened without going into the details of it. So that’s what my
      ruling is. It happens all the time. So you can deal with the issue
                                        13


       head on, but you have to avoid the content that led to the dispute—
       or the alleged dispute.
              EMBREE’S COUNSEL: Even if it’s—
              THE COURT: If it’s sexual.
              ....
              THE COURT: It may not be close to sexual. I mean, if it’s, “I
       took Mom’s iPod or iPad,” or whatever it is, that’s obviously not
       sexual. What was allegedly found on the iPad or the iPod to the
       extent that it was—that your client claimed it was sexual or that, or
       that you have evidence it was sexual, that’s not coming in.

At that point, the court’s ruling on the issue was no longer a preliminary one.

       The record does not reveal what specific evidence contained on the iPod

Embree sought to introduce. In raising the issue before the court, Embree’s

counsel spoke of an offer of proof regarding an “Exhibit A” consisting of

“approximately 50 statements.” But the two-page Exhibit A in the record does

not contain sexually explicit messages nor is there any exhibit with fifty

statements.

       Standing alone, neither the statement “I have an iPod” nor the statement “I

have Defendant’s Exhibit A, which is approximately 50 statements from [J.S.’s]

phone” is sufficient to create a meaningful record for appellate review, which is

the purpose of an offer of proof. We are left to speculate as to the content of

Embree’s proposed evidence and the witness or witnesses he would present to

offer the evidence. The record simply does not support the conclusion that he

preserved error on the ruling for appellate review.

       Embree’s failure to preserve the issue of the denial of his defense by the

trial court makes it unnecessary to rule on the remaining challenges raised by the

State to the adequacy of Embree’s claimed constitutional basis for his argument.
                                         14


       We next turn to his alternative arguments regarding the effectiveness of

his counsel.

                B. Ineffective-Assistance-of-Counsel Claims

       Embree claims trial counsel provided ineffective assistance of counsel in

several respects. When a claim of ineffective assistance of counsel is raised on

direct appeal, an appellate court may either “decide the record is adequate to

decide the claim or may choose to preserve the claim for [postconviction

proceedings].”     Iowa Code § 814.7(3).      In order to prevail on his claim of

ineffective assistance of counsel, Embree must establish both that “(1) his trial

counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.” Straw, 709 N.W.2d at 133 (citing Strickland v. Washington, 466 U.S.

668, 687–88 (1984)). Both elements must be proved by a preponderance of the

evidence. Id.

       With respect to the first prong, “we begin with the presumption that the

attorney performed competently,” and “avoid second-guessing and hindsight.”

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Furthermore, attorney

action (or inaction) caused by improvident trial strategy, miscalculated tactics, or

mistakes in judgment does not necessarily amount to ineffective assistance of

counsel. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).

       Embree must also show that counsel’s error caused prejudice. Ledezma,

626 N.W.2d at 143. In order to show prejudice, he must demonstrate “that there

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

of the proceeding would have been different.” Id. “We can resolve ineffective-
                                            15

assistance-of-counsel claims under either prong of the analysis.”                State v.

Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).

       Because Embree argues his counsel was ineffective in several respects,

including one raised for the first time in his reply brief, 1 we conclude the record is

not adequate to address his allegations. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012) (“We will resolve the claims on direct appeal only when the record is

adequate.”). We preserve his ineffectiveness claims for possible postconviction

proceedings.

       AFFIRMED.




1
  Embree’s proposes “better articulation” of one of his ineffectiveness claims in his reply
brief—that his counsel was ineffective for having failed to make an adequate record
regarding the electronic communications and the legal defense he wished to put forth.
That argument raises an issue separate and distinct from the one originally set forth on
appeal. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009) (noting we will not
consider issues raised for the first time in a reply brief).
