                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0874
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK LYNDON CARGILL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cedar County, Mark J. Smith,

Judge.



      The defendant appeals his convictions for sexual abuse in the second

degree, contending his counsel was constitutionally ineffective. AFFIRMED.




      Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       Mark Cargill was convicted of three counts of sexual abuse in the second

degree, in violation of Iowa Code sections 709.1 and 709.3 (2013), one count of

assault with intent to commit sexual abuse, in violation of Iowa Code section

709.11, and one count of indecent contact with a child, in violation of Iowa Code

section 709.12.     On appeal, he argues his counsel’s failure to object to

undifferentiated charges of sexual abuse in the second degree as set forth in the

trial information and presented to the jury in three carbon-copy marshaling

instructions violated his right to the effective assistance of counsel.

       Claims of ineffective assistance of counsel are reviewed de novo. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To prevail on a claim of

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

evidence (1) counsel failed to perform an essential duty and (2) prejudice

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

2011). To establish counsel failed to perform an essential duty, the defendant

must establish “the attorney performed below the standard demanded of a

reasonably competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). The attorney’s performance is measured against “prevailing professional

norms,” and it is presumed the attorney performed competently. See id. With

respect to the prejudice element, our ultimate inquiry is whether trial counsel’s

allegedly deficient performance caused a complete “breakdown in the adversary

process” such that the conviction is unreliable. See Strickland v. Washington,

466 U.S. 668, 687 (1984). This requires the defendant to establish “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of
                                          3

the proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,

866 (Iowa 2012).       The most important factor in determining whether the

defendant suffered prejudice is the strength of the State’s case. See State v.

Carey, 709 N.W.2d 547, 559 (Iowa 2006). If the defendant fails to establish

prejudice, the claim “can be decided on that ground alone without deciding

whether the attorney performed deficiently.” Ledezma, 626 N.W.2d at 142.

       Cargill was charged by trial information with the five above-mentioned

counts on July 18, 2014. The first three counts in the trial information were

identical:

               Comes now Jeffrey L. Renander, Assistant County Attorney
       of Cedar County, State of Iowa, and in the name by the authority of
       the State of Iowa accuses Mark Lyndon Cargill of the crime of
       Sexual Abuse in the Second Degree committed as follows:
               The said Mark Lyndon Cargill between June 1, 2011, and
       June 15, 2014, in the County of Cedar and State of Iowa, in
       violation of Sections 709.1 and 709.3 of the Iowa Criminal Code,
       did commit sexual abuse upon K.A., a child under the age of 12.

Cargill contends the trial information did not provide him with notice of the

“particulars of the offense sufficiently to fairly enable him to prepare his defense.”

State v. Marti, 290 N.W.2d 570, 576 (Iowa 1980). He argues his counsel was

ineffective in failing to request a bill of particulars to clarify the nature of the

charges.

       We conclude Cargill failed to establish ineffective assistance on his bill-of-

particulars claim. The minutes of testimony clearly articulate the particulars of

the five counts set forth in the trial information, including the three separate acts

supporting the three counts of sexual abuse in the second degree.            See id.

(considering means other than an indictment for informing defendant of the
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charges). The minutes are specific as to locations, circumstances, and types of

physical contact.    The minutes contain corroborating statements from family

members, police officers, and medical professionals.          The trial testimony

delineated the specific acts supporting each of the counts. Cargill had adequate

notice of the charges against him, was able to prepare a defense, and was not

prejudiced by the failure to request a bill of particulars. See State v. Butler, 706

N.W.2d 1, 4 (Iowa 2005); State v. White, No. 12-1256, 2013 WL 4504896, at *4

(Iowa Ct. App. Aug. 21, 2013) (“The minutes of evidence detailed R.A.’s many

allegations of sex acts committed by White—supporting at least three counts of

sexual abuse in the second degree. If counsel had sought and the State had

provided a bill of particulars, White’s defense strategy would not have changed.

He did not raise an alibi defense. Rather, White outright denied inappropriately

touching R.A. in his interview with authorities and again denied doing so in his

trial testimony.    White cannot show a reasonable probability of a different

outcome had his counsel urged more precision in the charging instrument.”); see

also May v. Ballard, No. 5:11CV82, 2012 WL 4356794, at *14 (N.D. W. Va. Sept.

24, 2012) (holding there was no due process violation where identical counts in

indictment were clarified by trial testimony).

       Cargill next argues his counsel provided constitutionally deficient

representation in failing to object to the marshaling instructions for the three

counts of sexual abuse in the second degree. “Jury instructions are designed to

explain the applicable law to the jurors so the law may be applied to the facts

proven at trial.” Meck v. Iowa Power & Light Co., 469 N.W.2d 274, 276 (Iowa Ct.

App. 1991). Here, the marshaling instructions were materially identical:
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       Under Count [_], the State must prove all of the following elements
       of Sexual Abuse in the Second Degree:
       1. Between June 1, 2011 and June 15, 2014, the defendant
       performed a sex act with K.A.
       2. The defendant performed the sex act while K.A. was under the
       age of 12 years.
               If the State has proved both of the elements, the defendant
       is guilty of Sexual Abuse in the Second Degree. If the State has
       failed to prove any one of the elements, the defendant is not guilty
       under Count [_].

Cargill contends the undifferentiated instructions failed to provide the jury with a

clear understanding of the fact issues to be decided. Cargill further contends the

jury was not instructed they must find each count independent of each other,

leading to an “all or nothing case.” See Valentine v. Konteh, 395 F.3d 626, 634

(6th Cir. 2005). We have no way of knowing if the jury found Cargill three-times

guilty of one offense, he argues, violating his constitutional protections against

being convicted more than once for the same offense.

       Cargill’s claim is controlled by State v. See, 805 N.W.2d 605, 606 (Iowa

Ct. App. 2011). In that case, the defendant made an ineffective-assistance claim

that counsel should have objected to three identical marshaling instructions

alleging identical sex crimes. The court there assumed without deciding See’s

counsel had breached an essential duty but determined See did not establish

prejudice. See See, 805 N.W.2d at 607 (citing Strickland, 466 U.S. at 694). In

reaching the conclusion that the defendant had not established prejudice, our

court reasoned that the minutes of testimony provided notice to the defendant he

was charged with three distinct types of acts of sexual abuse, the testimony at

trial described three separate incidents, the jury was instructed it should make a
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separate decision on each count, and the closing arguments placed the separate

acts into context as they related to each of the marshaling instructions. Id.

       Cargill likewise has not proved he suffered constitutional prejudice. If trial

counsel had successfully objected to the marshaling instructions, the instructions

would have been amended to more specifically identify the specific acts related

to each count. As in See, however, there was no doubt regarding the separate

acts supporting each count of sexual abuse in the second degree. The minutes

of testimony clearly identified three separate acts supporting each count of

sexual abuse in the second degree. The prosecutor’s opening statement clearly

identified a separate incident supporting each of the counts. K.A.’s testimony

was structured around each of the incidents separately. She testified about one

incident in which Cargill stuck his hand down her pants and tried to insert his

fingers into her vagina.   She testified about another incident in which Cargill

grabbed her hand and tried to force her to touch his penis. She also testified

about a third incident when Cargill placed a blanket over them on the couch and

forced his fingers into her vagina, which she testified “hurt really bad.” As in See,

the jury was instructed it should make a separate decision on each count. The

prosecutor’s closing argument again delineated the separate incidents and

placed them into context as they related to each count in the marshaling

instructions.   Finally, the evidence supports each conviction, and there is no

reasonable probability of a different outcome. See White, 2013 WL 4504896, at

*4 (holding the defendant failed to establish prejudice where the jury was

provided with identical marshaling instructions but the testimony clearly identified

separate incidents supporting each count).
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      We conclude Cargill has failed to establish his claim of ineffective

assistance of counsel. Cargill’s counsel did not breach an essential duty in not

requesting a bill of particulars where the minutes of testimony provided adequate

notice of the charges against him.       Cargill also suffered no constitutional

prejudice as a result of not requesting a bill of particulars. Cargill suffered no

constitutional prejudice due to his trial counsel’s failure to object to the

undifferentiated marshaling instructions in this case. We reiterate our statement

in See that the better practice is for the district court to not provide

undifferentiated marshaling instructions.   See See, 805 N.W.2d at 607.       We

affirm the defendant’s convictions.

      AFFIRMED.
