                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2174
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS S. BLAUFUSS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



      A convicted sex offender challenges the representation by his trial

counsel. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

         A jury found Nicholas Blaufuss guilty of three counts of sexual abuse in

the third degree for committing sex acts with a child who was twelve or thirteen

years old.       His appeal involves the jury’s consideration of evidence that he

engaged in additional, uncharged acts of sexual abuse against the same child.

Blaufuss argues his trial attorney was constitutionally remiss in two ways: (1) in

not objecting to testimony about those uncharged acts, and (2) in not requesting

a limiting instruction. Because Blaufuss cannot show his attorney was ineffective

in either instance, we affirm.

         I.      Facts and Prior Proceedings

         D.J. was twelve years old in August 2014 when her family fell on hard

times.        Her mother suffered a series of strokes and lost her job at the

convenience store. Her stepfather could not afford the contract payments on

their house with just his earnings, so the parents, D.J., and her two younger

stepbrothers moved in with family friend Donald Chipman in Burlington.

Chipman’s house had three bedrooms: one occupied by Chipman, one by D.J.’s

parents, and one by her brothers. D.J. was left to sleep on the living room couch

or in the boys’ bedroom.

         Coincidentally, thirty-year-old Blaufuss arrived at Chipman’s house about

the same time as D.J.’s family.        D.J.’s mother had known Blaufuss since

elementary school. Blaufuss pitched a tent in Chipman’s yard or slept in his

garage but had mostly unfettered access to the kitchen, bathroom, and living

room as well.
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      D.J. told her mother Blaufuss made her uncomfortable but did not

elaborate on why she felt that way. During the six weeks D.J.’s family stayed

with Chipman, the girl began acting out. Her school performance suffered, she

contacted adult men online, and she brought an eighteen-year-old date into the

house without permission. She also started cutting herself with glass shards.

Her mother lined up a counselor for D.J.

      In October 2014, shortly after she turned thirteen, D.J. moved out of

Chipman’s house and in with other relatives. Months later, she told an aunt and

her counselor that Blaufuss had sexually abused her repeatedly between August

and October 2014.      D.J. eventually described the incidents to a forensic

interviewer with the Child Protection Center (CPC) in Muscatine.

      The State charged Blaufuss with three counts of sexual abuse in the third

degree, in violation of Iowa Code section 709.4(1)(b)(2) (2013), by trial

information filed in July 2015. Blaufuss’s jury trial started on October 13, 2015.

During the State’s case-in-chief, then fourteen-year-old D.J. had the following

exchange with the prosecutor:

             Q. Has the defendant ever touched you in a way you didn’t
      like? A. Yes.
             Q. When did that occur? A. Almost every night from the
      middle or end of August, like somewhere in between there, until I
      moved out.
             Q. When did you move out? A. In October of 2014.

D.J. then testified to three specific instances of sexual abuse committed by

Blaufuss. First, D.J. testified that once when her mother asked her to retrieve a

household item stored in Chipman’s garage, Blaufuss followed her, pushed her

onto his bed, and “put his penis in [her] vagina.” She said the penetration “hurt”
                                           4


and she “bled for a while.” Second, she recalled that when her mother was

napping and her stepfather was at work, Blaufuss “laid [her] down on the couch”

in the living room and started kissing her, unbuttoned her pants, and “put his

fingers in [her] vagina.” When she said, “Stop,” he said, “Shut up.” D.J. testified

to a third encounter, when she was in the kitchen doing dishes: “[H]e told me to

get on my knees, and I didn’t want to, so he forced me down . . . and he tried to

pry my mouth open, and he got it open, and then he put his penis in my mouth.”

D.J. testified Blaufuss ejaculated into her mouth, giving her a “choking feeling.”

D.J. also told the jury that on a separate occasion Blaufuss took off her shirt and

“masturbated . . . all over her.”

       In the defense case, Blaufuss’s counsel questioned Burlington police

detective Melissa Moret about her report of the CPC interview.

                Q. Do you remember from your report whether she was
       asked about other times that had happened and her response was
       that it happened several times? A. I believe that was one of her
       responses, yes.
                Q. Okay. In your experience as a detective, is there a
       difference between several times and almost every night? A. First
       of all, that—in that same report you’re referring to, it does say that
       in order to get verbatim what she said or exactly what her words
       were, to watch that video, this is a summation. My report is of what
       she said and may not be exactly how she said it. To get exactly
       how she said it, you need to watch the video, but, no, I don’t believe
       that there’s a huge difference between the two, no.

       Blaufuss then testified on his own behalf, denying the sexual abuse

occurred. The case was submitted to the jury at 10:07 a.m. on October 14, and

the jury returned its guilty verdicts at 11:32 a.m.

       The district court imposed indeterminate ten-year sentences on all three

counts, running the sentences on counts one and two consecutively to each
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other and concurrently to the term for count three.        Blaufuss now appeals,

challenging the performance of his trial counsel.

      II.    Scope and Standard of Review

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

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). To establish a claim for

ineffective assistance of counsel, Blaufuss must show his trial counsel failed to

perform an essential duty and prejudice resulted. See Strickland v. Washington,

466 U.S. 668, 687 (1984). The inability to prove either element is fatal to an

ineffective-assistance claim. See State v. Graves, 668 N.W.2d 860, 869 (Iowa

2003). Under the first prong of the Strickland test, we presume trial counsel

performed competently unless Blaufuss proves by a preponderance of the

evidence counsel failed to perform an essential duty. See 466 U.S. at 690. In

deciding whether counsel failed to perform an essential duty, we measure

counsel’s performance against prevailing professional norms for the criminal

defense bar. See State v. Ary, 877 N.W.2d 686, 704–05 (Iowa 2016). Under the

second prong of the Strickland test, Blaufuss must prove a reasonable probability

existed that the result of the proceeding would have been different but for

counsel’s failure to perform an essential duty. See id. at 705.

      We often preserve claims of ineffective assistance of counsel for

postconviction-relief proceedings.      See State v. Reyes, 744 N.W.2d 95, 103

(Iowa 2008). But in this case, we find the record sufficient to resolve Blaufuss’s

allegations on direct appeal. See id.
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       III.   Analysis

       Blaufuss focuses on two omissions by his trial attorney: “the failure to

object to evidence of uncharged prior sexual abuse” and “the failure to request

an appropriate limiting instruction that addressed the evidence of prior sexual

abuse.” We will address each of these claims in turn.

       A. Objection to Evidence of Other Sexual Abuse

       The evidence of concern to Blaufuss is threefold: (1) Detective Moret’s

testimony that D.J. reported “Blaufuss had repeatedly sexually abused her over

the course of a few months”; (2) D.J.’s testimony that Blaufuss touched her in a

way she didn’t like “almost every night” from mid-August through October 2014;

and (3) D.J.’s testimony regarding a specific incident where Blaufuss took off her

shirt, masturbated in front of her, and ejaculated on her skin—which the State did

not charge as a separate offense.

       Blaufuss acknowledges evidence of other sexual acts with the same victim

may be admissible under Iowa Code section 701.11.1             See id. at 102.     But



1
  Iowa Code § 701.11(1) provides:
                 In a criminal prosecution in which a defendant has been charged
         with sexual abuse, evidence of the defendant’s commission of another
         sexual abuse is admissible and may be considered for its bearing on any
         matter for which the evidence is relevant. This evidence, though relevant,
         may be excluded if the probative value of the evidence is substantially
         outweighed by the danger of unfair prejudice, confusion of the issues, or
         misleading the jury, or by considerations of undue delay, waste of time, or
         needless presentation of cumulative evidence. This evidence is not
         admissible unless the state presents clear proof of the commission of the
         prior act of sexual abuse.
Further, clear proof may be established through direct testimony from the victim of the
prior alleged assault. Reyes, 744 N.W.2d at 101.
         But “[a]dmitting evidence of the accused’s sexual abuse of other victims under
Iowa Code section 701.11 based only on its value as general propensity evidence
violates the due process clause of the Iowa Constitution.” State v. Cox, 781 N.W.2d
757, 772 (Iowa 2010) (emphasis added).
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Blaufuss urges his trial counsel had a duty to object to the evidence alleging

other sexual conduct here because its probative value was substantially

outweighed by the danger of unfair prejudice. He contends the “alleged repeated

sexual abuse of a child” is of such a nature that it has a “tendency to produce

intense disgust.” Blaufuss argues because this prosecution came down to a

credibility contest between him and D.J., the jury should not have been allowed

to consider the uncharged incidents. For this last point, Blaufuss relies on State

v. Redmond, 803 N.W.2d 112, 125 (Iowa 2011) (“Juries may be more likely to

misuse prior-conviction evidence in cases with weak evidence or cases that are

he-said-she-said swearing matches.”).

       To address his last point first, we find Redmond inapposite. Redmond did

not   address   section   701.11(1)   but   rather   interpreted   Iowa   Rule   of

Evidence 5.609(a)(1) as it applied to prior convictions of the accused. See id. at

122 (stating only when the prior conviction’s probative value outweighs its

prejudicial effect is the conviction admissible for impeachment purposes). By

comparison, evidence of other sex acts is only subject to exclusion under section

701.11(1) on the ground that its probative value is substantially outweighed by

the danger of unfair prejudice. See Reyes, 744 N.W.2d at 100.

       The State contends Blaufuss’s trial counsel was not obligated to object to

the evidence of other sex acts alleged by D.J. because the testimony was

admissible “to show a passion or propensity for illicit sexual relations with the

particular person concerned in the crime on trial.” See State v. Spaulding, 313

N.W.2d 878, 880 (Iowa 1981) (citation omitted); see also State v. Wright, No. 12-

2138, 2014 WL 956064, at *3 (Iowa Ct. App. Mar. 12, 2014). We agree the
                                         8


challenged evidence had strong probative value. The evidence was crucial to

the prosecution’s case because Blaufuss denied any sexual contact with her.

See State v. Paulson, No. 06-0141, 2007 WL 461323, at *4 (Iowa Ct. App. Feb.

14, 2007) (“[T]he defendant completely denied any sexual abuse of [the victim],

which directly contradicted [the victim’s] description.   Therefore, the need for

other evidence was substantial.”).

      On the “unfair prejudice” side of the fulcrum, the challenged evidence was

not the focus of the trial, its nature was similar to the underlying charges, and it

was less likely to arouse the jurors’ sense of horror than the three charged

counts described in detail during D.J.’s testimony. See State v. Coleman, No.

02-0423, 2003 WL 21919175, at *2 (Iowa Ct. App. Aug. 13, 2003) (finding no

abuse of discretion in admitting evidence of prior bad act under rule 5.404(b)

where both acts involved “identical individuals, the identical location, similar

circumstances, and similar conduct”). Moreover, the alleged repetition of the

molestation did not call for exclusion of the evidence when the jurors were

already considering three specific instances of abuse purportedly occurring over

the course of several weeks. Any attempt by defense counsel to exclude the

evidence of other sexual acts would have been without merit. “Failing to make a

meritless objection does not constitute a breach of an essential duty.” State v.

Henderson, 804 N.W.2d 723, 726 (Iowa Ct. App. 2011).

      B. Request for a Limiting Instruction

      Alternatively, Blaufuss contends counsel delivered a subpar performance

by not requesting a limiting instruction regarding the evidence of other sexual

abuse. On appeal, he advocates for the following uniform jury instruction:
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       You have heard evidence that the defendant allegedly committed
       other acts with (victim) [before] [after] (date of offense charged). If
       you decide the defendant committed these other acts, you may
       consider those acts only to determine whether the defendant has a
       sexual passion or desire for (victim). You may not consider them
       as proving that the defendant actually committed the act charged in
       this case.

Iowa Crim. Jury Instructions 900.11.

       Blaufuss argues that without such a limiting instruction, the jurors were

allowed “to infer that he had a general propensity to commit sexual abuse, and

therefore, decide the verdict on an improper basis.” He also argues counsel had

no strategic reason for failing to request such an instruction.

       We are not persuaded by these arguments.             The State did not offer

evidence Blaufuss had a general propensity to commit sexual abuse against

young girls. The disputed evidence all involved his improper conduct toward D.J.

While a limiting instruction may have been proper, its absence did not amount to

Strickland prejudice. In other words, had counsel secured a limiting instruction

regarding the other-acts evidence, it was not reasonably probable the jury would

have acquitted Blaufuss on the three counts of sexual abuse against D.J. See

State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000) (finding no reasonable

probability of acquittal had counsel handled jury instructions differently).

       Moreover, the record reveals trial counsel did have a strategic reason to

avoid instruction 900.11. That instruction contemplated the jurors might believe

Blaufuss committed the other acts alleged by D.J. and then directed them to

consider those other acts only to determine whether Blaufuss had a “sexual

passion” for her. In his closing argument, counsel urged the jurors to disbelieve

D.J. entirely, pointing out that in her CPC interview she said the sexual abuse
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happened “several times” but in her trial testimony she claimed it happened

“almost every night.” The comparison allowed counsel to assert: “Those are

wildly inconsistent accusations.” The defense strategy was to discount all of

D.J.’s accusations against Blaufuss.          The limiting instruction would have

undermined that strategy by suggesting a scenario where the jurors believed

D.J.’s allegation of almost nightly molestation. See State v. Munz, 355 N.W.2d

576, 581 (Iowa 1984) (recognizing courts allow “the admission of evidence of

prior sexual acts with the victim in order to show a passion or propensity for illicit

sexual relations with the particular person concerned in the crime on trial”

(citation omitted)).

       Blaufuss has not met the Strickland standard for reversal on either of his

claims against trial counsel.

       AFFIRMED.
