                   IN THE COURT OF APPEALS OF IOWA

                                 No. 14-1212
                             Filed June 24, 2015


JAMES EUGENE FAY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Palo Alto County, David A. Lester,

Judge.



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

postconviction relief. AFFIRMED.




      Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

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

General, and Lyssa Henderson, County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

      James Fay appeals from the district court’s denial of his application for

postconviction relief (PCR). He maintains the district court wrongly denied his

application because he established he received ineffective assistance from trial

counsel.   Specifically, he maintains trial counsel was ineffective for failing to

object to testimony regarding a “founded” child abuse report and failing to

request a mistrial or curative instruction due to the prejudicial nature of the

testimony. Because Fay has not proved trial counsel’s representation fell below

an objective standard of reasonableness, we affirm the district court’s denial of

his PCR application.

I. Background Facts and Proceedings.

      In 2007, Fay’s son and daughter began seeing a therapist due to highly

sexualized behavior exhibited by Fay’s son. The son was four years old, and the

daughter was five years old at the time. The therapist reported her observations

to the Iowa Department of Human Services (DHS), and an investigation was

conducted. DHS ultimately issued a “founded” child abuse report.

      On April 14, 2008, Fay was charged with two counts of sexual abuse in

the second degree and two counts of incest.

      The case proceeded to jury trial in November 2009. At trial, the county

attorney made the following statements during his opening statement:

             COUNTY ATTORNEY: This case also runs parallel to a
      Child in Need of Assistance Petition, Child in Need of Assistance,
      CINA. CINA takes care of children that are at risk. Child in Need of
      Assistance is a juvenile case with completely different standards.
      Preponderance of the evidence is what the standard is to keep
      children safe in a CINA.
                                        3


           DEFENSE COUNSEL: Judge, I’m going to object to this.
      This—May we approach?
           THE COURT: Yes.
           (Off-the-record discussion.)

After the off-the-record discussion, the county attorney continued with his

opening statement.

      During the trial, DHS child-abuse investigator Kelly McKeever testified

about the founded child abuse report filed by DHS. The following exchanges

occurred during direct examination by the State:

              Q: Did you include that information in your decision to make
      this a founded child abuse report? A: I did.
              DEFENSE COUNSEL: I object—
              THE COURT REPORTER: Did you say something?
              DEFENSE COUNSEL: I’m going to object to that, Judge.
      May we approach?
              (Off-the-record discussion.)
              DEFENSE COUNSEL: Judge, I withdraw my objection at
      this time.
              ....
              Q: What does it mean to say a child abuse report is
      founded? A: There’s three separate things that can happen with a
      child abuse report. The first is a not confirmed report which means
      that there’s not enough—not enough information or evidence to
      state that abuse occurred.          We work on what’s called a
      preponderance of the evidence meaning if the scales of justice
      wiggle ever so much, 51 percent is a preponderance. So if there’s
      51 percent of the evidence that says abuse—or that abuse did not
      occur, then you have to not confirm a report meaning there’s not
      enough evidence.
              Q: Did you feel you had enough evidence in this particular
      interview and this particular case to make that determination?
      A: Yes. So then you turn into what’s called a confirmed report of
      abuse. A confirmed report means 51 percent or more of the
      evidence indicates that abuse occurred. The difference between
      confirmed and founded—There’s a difference in Iowa where a
      confirmed report of abuse doesn’t go on to the child abuse registry.
              DEFENSE COUNSEL: Judge, I’m going to object to this.
      May we approach?
              (Off-the-record discussion.)
              ....
                                        4


             Q: You are a child abuse investigator, and you produce the
      report to determine if it’s founded, confirmed or denied?
             DEFENSE COUNSEL: Object. I’m going to object, Judge.
             THE COURT: Sustained.
             DEFENSE COUNSEL: Thank you, Your Honor.
             Q: I can rephrase that. [Defense counsel] asked you if you
      closed your case after you conducted your investigation. Do you
      remember that question? A: I do.
             Q: And the answer to that is? A: My case was closed. I
      submitted my report and things went from there.
             Q: And when you say “things went from there,” there’s a
      whole other part of DHS that works with the family; do they not?
      A: Yes. There is ongoing social work—
             DEFENSE COUNSEL: Object. It’s irrelevant, Judge.
             Q: He brought it up.
             DEFENSE COUNSEL: I didn’t bring it up. We’re talking
      about—
             THE COURT: Sustained.
             DEFENSE COUNSEL: Thank you, Your Honor.
             Q: Are the children safe?
             DEFENSE COUNSEL: Object, irrelevant. This is a criminal
      prosecution for the prosecution of James Fay, and the State has an
      obligation to bring evidence forward in this case. This is not
      juvenile court. Object. It’s irrelevant.
             Q: Response, Your Honor?
             THE COURT: All right.
             Q: He’s implying that Mr. McKeever did not do his job
      because he closed his case. I need to confirm that there—
             THE COURT: I didn’t get that inference at all, counsel.
      Objection is sustained.
             DEFENSE COUNSEL: Thank you, Your Honor.

      After deliberation, the jury found Fay guilty of each of the charged

offenses. In March 2010, Fay was sentenced to two terms of incarceration not to

exceed twenty-five years with a mandatory minimum of seventy percent to be

served before parole eligibility and two terms of incarceration not to exceed five

years. All sentences were ordered to run consecutively.

      Fay filed a direct appeal of his convictions. In State v. Fay, No. 10-0404,

2011 WL 2556034, at *9, (Iowa Ct. App. Jun. 29, 2011), we affirmed his
                                          5


convictions and sentence. The issue raised in this proceeding was not raised in

the direct appeal.

       Fay filed a PCR application on November 22, 2012. On September 20,

2013, he filed a motion to amend his application. The court granted Fay’s motion

on March 19, 2014, and a hearing on the amended application was held on

March 27, 2014. Trial counsel was not called at the PCR hearing. Fay was the

only person who testified at the trial.       After he was identified, the following

exchange is the total of his testimony:

               Q: And in that case did you proceed to trial? A: Yes.
               Q: And during that trial, was there a witness by the name of
       Kelly McKeever?      A: Yeah.
               Q: Who was Kelly McKeever? A: DHS caseworker, I
       believe.
               Q: And can you describe what his role was what he—if you
       recall, what he testified to at the trial? A: Yeah. He testified
       about—oh, how do I put it?
               Q: Was he the person that did the investigation on the
       underlying DHS case? A: Yeah, yeah.
               Q: And he was the investigator? A: Yeah, yeah.
               Q: Do you recall in his testimony, did he testify at all about
       the child abuse report that was part of the underlying DHS and child
       in need of assistance case? A: Yeah.
               Q: And do you recall if he testified whether or not his abuse
       report was founded? A: I don’t believe so.
               Q: If the transcripts stated that he testified that the
       underlying abuse report from those cases was founded, would you
       disagree with that? A: Yes.
               Q: What role did his abuse report play in his testimony, if you
       recall? Let me rephrase that, Jim, so you can—and if you can’t
       hear me or my question, just ask me. When he testified, did he
       testify about his abuse report? A: Yes.
               Q: And he testified extensively about what his findings in the
       report were, didn’t he? A: Yes, yeah.
               Q: And when he testified that it was a founded report, and
       you just stated that you disagreed with that, your view is that it
       shouldn’t have been a founded report; is that right? A: Yes.
                                        6


       The district court issued its ruling on June 27, 2014, and denied Fay’s

application.   The court concluded Fay’s trial counsel’s conduct “was not

unreasonable under the circumstances, and did not fall below the standards of a

reasonably competent attorney.” Fay appeals.

II. Standard of Review.

       We typically review PCR proceedings on error. Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a

constitutional nature, our review is de novo.     Id.   Thus, here we review the

applicant’s claim of ineffective assistance de novo. See id.

III. Discussion.

       Fay maintains he received ineffective assistance because trial counsel

failed to object to the admission of testimony regarding a “founded” child abuse

report and failed to request a mistrial due to the prejudicial nature of the

testimony.

       To prevail on a claim of ineffective assistance of counsel, Fay must prove

by a preponderance of the evidence (1) the attorney failed to perform an

essential duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011). To prove counsel failed to perform an essential

duty, he must show “counsel’s representation fell below an objective standard of

reasonableness . . . under prevailing professional norms.”      See Strickland v.

Washington, 466 U.S. 668, 688 (1984).            Fay must overcome a strong

presumption of counsel’s competence. See id. at 689. To establish prejudice,

he must show there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”
                                         7

See id. at 694. “The likelihood of a different result must be substantial, not just

conceivable.” State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). We “will not

reverse where counsel has made a reasonable decision concerning trial tactics

and strategy, even if such judgments ultimately fail.”       Brewer v. State, 444

N.W.2d 77, 83 (Iowa 1989). The claim fails if either element is lacking. See

Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

         “Representation is presumed competent and a defendant has the burden

to prove by a preponderance of the evidence that counsel was ineffective.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The record before us shows

trial counsel objected each time the county attorney or the witness referenced the

founded report. Each time, the court either sustained trial counsel’s objection or

an off-the-record conversation was held and then the county attorney seemed to

change the line of questioning.1 Because trial counsel was not called to testify at

the PCR hearing, we do not know what discussion was held off the record. We

also do not know why trial counsel did not request a mistrial or curative

instruction. Additionally, Fay maintains counsel should have at least requested a

curative jury instruction and asked the court to strike any comments about the

founded abuse report. But again, because trial counsel was not called to testify

at the PCR hearing, we do not know what strategy counsel employed. A PCR

hearing is meant to allow for development of the record and to allow trial counsel

to defend against the charge. See State v. Tate, 710 N.W.2d 237, 240 (Iowa

2006).     “Even a lawyer is entitled to his day in court, especially when his


1
 Fay’s reply brief suggests an objection was not made on one occasion when the report
was discussed, but we disagree on the state of the record.
                                        8

professional reputation is impugned.” State v. Bentley, 757 N.W.2d 257, 264

(Iowa 2008). Here, the record made during the PCR trial failed to develop the

record and illuminate upon trial counsel’s strategy and the off-the-record

discussions.     We presume the “attorney performed competently and avoid

second-guessing and hindsight.” State v. Brubaker, 805 N.W.2d. 164, 171 (Iowa

2011).      Fay has failed to overcome the presumption of trial counsel’s

competence. We need not consider whether he suffered prejudice. See Everett,

789 N.W.2d at 159. A different result may have been reached if trial counsel had

not objected to the improper evidence. See State v. Huston, 835 N.W.2d 531,

535–39 (Iowa 2013) (finding no probative value of a founded abuse report in a

criminal action).

IV. Conclusion.

         Because Fay has not proved trial counsel’s representation fell below an

objective standard of reasonableness, we affirm the district court’s denial of his

application for PCR.

         AFFIRMED.
