                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0395
                               Filed January 11, 2017


LARRY TWIGG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Larry Twigg appeals from the denial of his application for postconviction

relief from his five convictions of lascivious acts with a minor. AFFIRMED.




      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Potterfield, P.J., Bower, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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POTTERFIELD, Presiding Judge.

       Larry Twigg appeals from the district court’s denial of his application for

postconviction relief (PCR) stemming from his five convictions of lascivious acts

with a minor, in violation of Iowa Code section 709.14 (2009). On appeal, Twigg

maintains the district erred in failing to find his second trial counsel ineffective for

not obtaining for use at trial an interview transcript or alternatively, in failing to

find that his postconvictio- relief counsel was ineffective for not obtaining a copy

of the transcript.   Additionally, he contends the trial court erred in ruling his

second trial counsel did not provide ineffective representation in presenting

Twigg’s defense his conduct was “weird behavior” rather than “sexual behavior.”

After careful consideration, we affirm the district court.

I. Background Facts and Proceedings.

       Twigg worked as a high school teacher in Waterloo.                Beginning in

December 2009, Twigg invited a seventeen-year-old student to his home to work

on some outstanding homework assignments. Twigg told the student he could

either complete the assignments or play a video game. Twigg explained the

student would receive credit for an assignment for every level the student beat on

the video game; the student was required to remove an article of clothing for

each level lost.

       The student chose to play the video game. The student lost four levels

and was wearing only boxer shorts when Twigg left the room momentarily. While

he was alone, the student researched online how to beat the game. When Twigg

later noticed the student’s improved performance on the video game, the student
                                           3


admitted to cheating. Twigg then informed the student he would have to return to

Twigg’s home at a later date.

         The student returned to Twigg’s home in January 2010, but the rules of

the game had changed. During this interaction, if the student wished to avoid

removing a piece of clothing, he could instead opt to complete an activity on a list

provided by Twigg.      The student played the video game and had to remove

clothing. However, at some point, the student began selecting activities from the

list. The first activity the student chose to complete was called “cold change.”

This required the student to go into Twigg’s garage by himself to change into a

different pair of boxers. The student also completed exercises wearing only a

towel.

         Although the student eventually earned enough credit for the assignments,

he still owed Twigg money for a cell phone bill Twigg apparently had paid for the

student. Twigg offered to let the student work off the debt by completing more

activities on the list. The student described the remaining activities as:

         [S]ix boxers which . . . involve[d] me in only my boxers laying on the
         bed and receiving six spankings, three whoppers, which would
         involve me bending over the bed butt naked and getting three
         spankings. The snow angels, which basically involved me doing
         two snow angels in my boxers, one on my front and one on my
         back. And des[s]ert mix, which involved me getting into the bathtub
         and letting him pour pineapple sauce, chocolate sauce, eggs, flour,
         milk, and two different kinds of candy on me.

The student completed the activities before Twigg drove him home. The student

eventually told a few friends, who in turn told the high school principal. The

incidents were reported to the police.
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         During the investigation in January 2010, school administrators and police

officers interviewed Twigg, who admitted to the incidents described by the

student. Twigg explained he “thought this was a way to motivate the student to

do better.” He further apologized and said “this is a stupid thing I did. It was a

mistake, and I am sorry.” Twigg was arrested, and two other former students

emerged with similar allegations against Twigg.

         The State charged Twigg by trial information with six counts of lascivious

acts with a minor. Five of those charges related to the current student, and one

count related to one of the former students. No charges were filed concerning

the other former student, who was not a minor when the acts were allegedly

committed. The State eventually dismissed the charge concerning the former

student but relied on that student’s testimony at trial on the remaining five counts.

         The jury found Twigg guilty; however, that conviction was reversed in

State v. Twigg, No. 11-0733, 2012 WL 3590045 (Iowa Ct. App. Aug. 22, 2012),

and the case was remanded for a new trial.

         The case was retried in May 2013, and the jury again found Twigg guilty

on all five counts of lascivious acts with a minor child. After an unsuccessful

direct appeal,1 Twigg filed an application for postconviction relief on March 10,

2015. The district court scheduled the PCR proceeding for October 5, 2015;

however, the State filed a motion to dismiss the application, claiming the issues

raised in the application had been previously adjudicated in the preceding two

direct appeals. The district court took the motion under advisement and set it for

hearing on the same day as the PCR proceeding. The court then denied the

1
    See State v. Twigg, No. 13-1094, 2014 WL 3747676 (Iowa Ct. App. July 30, 2014).
                                          5


State’s motion, and Twigg filed a motion to amend his petition and an amended

and substituted petition. Again, in November 2015, Twigg moved to amend his

application, which the court granted. After being rescheduled several times, the

PCR proceeding was held on February 22, 2016.

       At the PCR hearing, Twigg claimed his second trial counsel breached an

essential duty when he failed to obtain for use at trial a transcript of the meeting

that occurred with school officials where Twigg confessed to the incidents.

Although the police and school officials denied recording the meeting, Twigg’s

counsel at his first trial seemed to remember seeing a transcript of that meeting;

however, counsel was no longer in possession of it. Twigg said he obtained the

transcript and gave it to his first attorney but did not keep a copy of it. Twigg also

contended his second trial counsel was ineffective in his failure to fully develop

his defense that the acts were not sexually motivated. He alleges trial counsel

did not effectively examine or question the expert witness who testified on his

behalf at his second trial.

       The PCR court dismissed Twigg’s application in an order issued on

February 26, 2016. Twigg now appeals.

II. Standard of Review.

       “Postconviction proceedings are law actions ordinarily reviewed for errors

at law.” Bagley v. State, 596 N.W.2d 893, 895 (Iowa 1999).

       We review claims of ineffective assistance of counsel de novo.            See

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To prevail on a claim of

ineffective assistance of counsel, Twigg must prove by a preponderance of the

evidence (1) his attorney failed to perform an essential duty and (2) prejudice
                                        6

resulted from the failure. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa

2011).     We “look to the cumulative effect of counsel’s errors to determine

whether the defendant satisfied the prejudice prong.” State v. Clay, 824 N.W.2d

488, 500 (Iowa 2012). Twigg’s claim will fail if either element is lacking. See

State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).          Twigg must show “a

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

the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 694 (1984). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

         Additionally, “[i]mprovident trial strategy, miscalculated tactics, and

mistakes in judgment do not necessarily amount to ineffective assistance of

counsel.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). And “strategic

decisions made after ‘thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.’” Ledezma v. State, 626 N.W.2d 134, 143

(Iowa 2011) (quoting Strickland, 466 U.S.at 690).

III. Discussion.

         A. Meeting Transcript

         Twigg first maintains the PCR court erred in finding his second trial

counsel was not ineffective for failing to obtain the transcript from the January

2010 meeting between Twigg, school administrators, and police officers.

Alternatively, Twigg contends his PCR counsel was ineffective in failing to obtain

the transcript.     Twigg claims the transcript is important as it contains

impeachment evidence.
                                          7


       Twigg maintains a record of the meeting existed and had, at one time,

been in his possession. He claims to have received the transcript from the Iowa

Department of Education and then maintains he turned over his only copy to his

attorney at his first trial.   Twigg’s attorney from his second trial testified he

contacted the first attorney about the transcript. The first attorney apparently told

the second attorney that he remembered seeing something like what Twigg

described. However, the first attorney indicated he could not locate the transcript

in his office. The second attorney contacted both prosecutors and the clerk’s

office to see if they had a copy; however, no one did. Neither the first or second

prosecutor remembered anything like what Twigg described.

       Having reached an impasse in the search for the transcript, Twigg’s

second attorney deposed the individuals who participated in the meeting with

Twigg, namely, the school officials and the two plain-clothes police officers.

Twigg’s attorney asked each individual about whether the interview with Twigg at

the school had been recorded and if the school was equipped to do such a

recording.    Everyone testified that the meeting had not been transcribed or

recorded.

       Twigg contends that the transcript from this meeting would have been

useful to his defense in that it would show he never made the statements he was

alleged to have made in other police reports and narratives. Specifically, Twigg

testified to two inaccuracies that allegedly could have been resolved with the

transcript.   First, he claims he never admitted at the meeting to paying “the

student to strip down and dress in a towel and do push-ups or sit-ups and so

forth.” Second, he contends the transcript would show that a certain school
                                          8


official was not present at the meeting, despite testimony at trial that he was

there.

         On our de novo review, we find Twigg cannot prevail on his ineffective-

assistance claim. Twigg cannot prove that he was prejudiced by his attorneys’

failure to obtain a copy of the transcript, if it existed. Neither of Twigg’s examples

of potential inconsistencies demonstrates the outcome of his trial would have

been different if the transcript were available. The complaining witness testified

at trial to the events Twigg denies admitting at the meeting. Whether or not

Twigg made the admission is not critical to his defense he lacked sexual intent.

And, it is unclear what the significance is of the school official’s presence or

absence at the meeting.

         In order to maintain a claim of ineffective assistance of counsel for

postconviction review, an applicant must make a minimal showing by which this

court can assess the viability of the claim. See State v. Wagner, 410 N.W.2d

207, 215 (Iowa 1987). Twigg has not elaborated on his claims to show how his

counsels’ inactions caused him prejudice.          His bald assertions they were

ineffective are insufficient to sustain his ineffective-assistance claims. See id.

Therefore, these claims fail.

         Having found no prejudice, we need not consider the remaining element.

See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we conclude a

claimant has failed to establish either of these elements, we need not address

the remaining element.”).
                                              9


         B. Expert Witness Claim

         Twigg next contends his second trial counsel was ineffective for failing to

develop his defense that his behavior was “weird” but was not sexual in nature.

Specifically, Twigg argues his trial counsel ineffectively examined the forensic

psychiatrist who testified for the defense to explain the difference between “weird

behavior” and “sexual behavior.” Twigg urges us to reverse the convictions and

remand the case for a new trial.

         According to trial counsel’s testimony at the PCR proceeding, the defense

forensic psychiatrist administered several tests on Twigg, which led the

psychiatrist to opine at trial that Twigg did not act with sexual intent and that

some of the acts he admitted to committing even suggested a lack of sexual

intent—a necessary element in the State’s case.2 Trial counsel further testified

that although the expert’s demeanor did not come “off terribly well,” he thought

“his testimony was fine” and that “unfortunately the nature of the allegations was

too much for the expert to overcome.” And when asked about why he chose to

call this expert, trial counsel indicated,

         It was definitely—the focus was to say I know it looks sexual and I
         think the expert even—we tried to take points where the expert said
         we know this looks sexual, that’s why we’re here in trial. Because it
         looks pretty sexual, but it isn’t sexual. You have to take my word
         for it. Well, the jury didn’t take his word for it. But that was really
         [the] only the defense we had. I thought it was a decent shot. It
         was difficult just because of the nature of the facts, but from a legal
         perspective I thought it was plausible, possible.


2
    Iowa Code section 709.14 provides:
                 It is unlawful for a person over eighteen years of age who is in a
         position of authority over a minor to force, persuade, or coerce a minor,
         with or without consent, to disrobe or partially disrobe for the purpose of
         arousing or satisfying the sexual desires of either of them.
                                        10


       Twigg has not shown a different direct examination or presentation of the

expert witness might have changed the jury’s guilty verdict.       Trial counsel

advanced a defense he thought might be successful, although the jury disagreed.

Even if the testimony from the expert had led the jury to conclude Twigg’s

behavior was “weird,” there is nothing to indicate they would not have also found

his behavior to be “sexual.”     The two notions are not necessarily mutually

exclusive. However, counsel made a tactical decision to present a defense and

obtained expert testimony in support of the defense; Twigg has not shown in

what respects counsel’s representation should have been different such that our

confidence in the outcome is undermined.

       Because we find Twigg suffered no prejudice, we need not consider the

breach-of-an-essential-duty element of Twigg’s claim. See id. at 868.

       For the foregoing reasons, we affirm the judgment of the district court

denying Twigg’s application for postconviction relief.

       AFFIRMED.
