Daniel King v. State of Iowa , 2011 Iowa Sup. LEXIS 24 ( 2011 )


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  •               IN THE SUPREME COURT OF IOWA
    No. 08–0430
    Filed April 22, 2011
    DANIEL KING,
    Appellant,
    vs.
    STATE OF IOWA,
    Appellee.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Linn County, Nancy A.
    Baumgartner, Judge.
    On further review, appellant asserts the court of appeals erred in
    denying postconviction relief. AFFIRMED.
    Wallace L. Taylor, Cedar Rapids, for appellant.
    Thomas J. Miller,     Attorney General, Bridget A. Chambers,
    Assistant Attorney General, Harold L. Denton, County Attorney, and
    Todd D. Tripp, Assistant County Attorney, for appellee.
    2
    APPEL, Justice.
    The appellant, Daniel King, requests further review of the court of
    appeals’ decision affirming his denial of postconviction relief.                       King
    argues his trial counsel was ineffective in not properly attacking DNA
    evidence offered by the State at trial. Upon our review of the record, we
    conclude that King has failed to show a reasonable probability that the
    verdict would have been different had trial counsel more adequately
    developed a response to the State’s evidence. As a result, we affirm the
    decision of the district court denying King’s application for postconviction
    relief.
    I. Background Facts and Proceedings.
    This is a postconviction relief action filed by Daniel King to vacate
    his conviction for sexual abuse in the third degree in violation of Iowa
    Code sections 709.4(2)(c)(4) 1 and 901A.2(3) (2003). The State alleges that
    on April 25, 2004, King, who was twenty-two years old at the time, had
    sex with a fifteen-year-old girl. The girl, A.A., alleged the nonconsensual
    sex took place in the front passenger seat of King’s car between the
    hours of 2 and 4 a.m. There were no witnesses to the alleged event.
    1Iowa   Code section 709.4(2)(c)(4) provides:
    A person commits sexual abuse in the third degree when the
    person performs a sex act under any of the following circumstances:
    ....
    2. The act is between persons who are not at the time
    cohabitating as husband and wife and if any of the following are true:
    ....
    c. The other person is fourteen or fifteen years of age and any of
    the following are true:
    ....
    (4) The person is four or more years older than the other person.
    3
    Sometime during the afternoon of April 25, A.A. told her mother of
    the alleged incident. A.A.’s mother immediately called the police. Officer
    Mullen, from the Cedar Rapids Police Department, was dispatched to
    A.A.’s home.      After being informed of A.A.’s sexual assault, Mullen
    requested the clothing A.A. had been wearing during the incident. A.A.
    informed Mullen that the clothing had not been washed and was lying in
    a pile on her bedroom floor.         The clothing consisted of a pair of
    underwear, jeans, and a tank top.          Mullen placed all three pieces of
    clothing in an unsealed paper bag. He then placed the unsealed bag in
    the trunk of his police car. The bag remained in the trunk of the police
    car until Mullen returned to the police department, where he delivered it
    to the department’s evidence custodian. Upon delivery, it was placed in
    an evidence locker.
    A.A. was taken to the emergency room where a nurse examined her
    and collected evidence for a sexual assault kit. Among other things, the
    nurse examining A.A. found large areas around the neck that looked like
    hickeys, purple bruising of both breasts, and a swollen rectum with
    tears.    The nurse found these injuries consistent with sexual assault.
    The nurse also found abrasions in the vaginal area that suggested recent
    penetration.
    On June 2, both the sexual assault kit and the paper bag
    containing A.A.’s clothing, along with buccal (DNA) swabs taken from
    King, were transported to the Iowa Division of Criminal Investigation
    (DCI) laboratory for examination.       The technician who received the
    evidence testified that the paper bag containing A.A.’s clothing was not
    sealed when it arrived at the laboratory.
    Before performing any tests, the DCI criminologist separated the
    three items of clothing and placed them in separate bags.               The
    4
    criminologist then examined the underwear.        The criminologist found
    seminal fluid on the crotch of the underwear that contained an epithelial
    cell with King’s DNA.
    The criminologist also examined some of the other items related to
    the case. The criminologist examined the vaginal slides of A.A.’s rape kit,
    finding seminal fluid with some sperm. The criminologist, however, was
    unable to develop a DNA profile from the sperm. The swabs taken from
    both sides of A.A.’s neck revealed King’s DNA. Swabs were also taken
    from each of A.A.’s breasts. A DNA profile could not be developed from
    the left breast swab, but a DNA profile from the right breast swab
    excluded King from being the donor. No DNA or seminal fluid was found
    on the oral, rectal, or dental swabs.     The criminologist did not review
    debris swabs from the genital area.
    To aid in examining the State’s DNA evidence, King’s trial counsel
    hired a DNA expert, Professor David Soll. King’s attorney sent Soll the
    following letter:
    I want to thank you for your willingness to review the
    D.C.I. Lab Report regarding the DNA findings and the State’s
    discovery file against my client in this case.
    I have enclosed for your compensation, a trust check
    from my law firm made out to you in the amount of
    $1,000.00.
    Would you please contact me after you have reviewed
    the enclosed material with any opinions you may have
    regarding whether, or not, you can assist in Mr. King’s
    defense?
    The DCI laboratory report and the State’s discovery file were sent
    along with this letter.   A receipt detailing the evidence tested revealed
    that one of the exhibits was a paper bag containing the victim’s
    underwear, jeans, and shirt worn the morning of the assault. The receipt
    5
    also indicates the bag was not sealed. The receipt was included in the
    file of materials sent by King’s counsel to Soll.
    Upon receipt of the materials, Soll “skimmed everything.” He then
    proceeded to review the testing procedures used by the DCI.               He
    determined that the laboratory used the correct methods for testing the
    DNA and its findings were accurate. King’s attorney sent a letter to King
    and King’s mother explaining Soll’s conclusions.
    Soll did not testify at King’s trial. The jury found King guilty of
    sexual assault in the third degree. Because King had a prior conviction
    for assault with intent to commit sexual abuse, he was sentenced to an
    indeterminate term of twenty-five years in prison with an eighty-five
    percent mandatory minimum sentence. See Iowa Code § 901A.2(3).
    After the trial, King’s mother met with Soll “to see if there was
    anything that didn’t seem right.” She presented Soll with the DCI report
    that showed that the three articles of clothing were placed in the same
    bag. Based on the DCI report and his review of other documents, Soll
    developed a few “pretty extreme” concerns.          After reviewing these
    materials, Soll became concerned that the DNA found on A.A.’s
    underwear could have been transferred to the underwear from either her
    shirt or jeans, as all of A.A.’s clothing had been placed in the same paper
    bag.   He further noted that the lack of sperm in the seminal fluid
    suggested a “big possibility” of cross-contamination, which produced a
    “bigger probability” that King was not the source of the seminal fluid.
    King’s mother took notes of her conversation with Soll and relayed
    Soll’s concerns to her son’s attorney. In response, defense counsel filed a
    motion for a new trial and/or a motion in arrest of judgment. In this
    motion, counsel claimed King should be granted a new trial because the
    underwear on which the DCI laboratory found King’s DNA was placed in
    6
    a bag with other clothing that may have cross-contaminated the
    underwear, making it an unreliable piece of evidence.
    Attached to the motion was an affidavit by Soll. In this affidavit,
    Soll stated that, because the items of clothing that were worn by A.A. at
    the time of the alleged incident were placed together in a sack without
    being separated, there was an issue of cross-contamination. This raised
    doubts as to which article of clothing was the source of the DNA sample.
    Further, the seminal fluid in the underwear could not be matched to a
    particular person because there was no sperm in it. Additionally, there
    was no sperm in the vaginal slides to make an identification of the donor.
    The district court denied the motion on the basis that the evidence
    could have been discovered previously and presented at trial.            King
    appealed.     On appeal, his counsel determined that any ineffective-
    assistance-of-counsel claim he might have could not be decided on direct
    appeal, but only in a postconviction relief action in which a record could
    be more fully developed. As a result, appellate counsel filed a motion to
    dismiss the appeal as frivolous, which this court granted.
    This postconviction action was filed pro se by King in December
    2006. An amended application was later filed by King’s attorney. In the
    amended application, King claimed that his trial counsel was ineffective
    for failing to raise the issue of DNA cross-contamination at trial, failing to
    present additional testimony that contradicted A.A.’s testimony, and
    failing to present evidence of A.A.’s possible motives for accusing King of
    rape.
    The district court denied King’s application.     The district court
    stated that it was Soll who failed to notice a possible cross-contamination
    problem with the evidence and that error could not be attributed to
    defense counsel. The district court further found that the failure to offer
    7
    testimony from additional witnesses did not rise to ineffective assistance
    of counsel.
    King appealed the district court’s decision, and his appeal was
    routed to the court of appeals. The court of appeals affirmed the district
    court. King filed an application for further review with this court, which
    we granted.
    II. Scope of Review.
    We review claims of ineffective assistance of counsel de novo. State
    v. Lyman, 
    776 N.W.2d 865
    , 877 (Iowa 2010). In conducting our de novo
    review, “we give weight to the lower court’s findings concerning witness
    credibility.” Ledezma v. State, 
    626 N.W.2d 134
    , 141 (Iowa 2001).
    III. Discussion and Analysis.
    A. State vs. Federal Constitution. In this postconviction relief
    action, King presents an ineffective-assistance-of-counsel claim. He does
    not, however, indicate whether the case has been brought under the
    Sixth Amendment to the United States Constitution or article I, section
    10 of the Iowa Constitution.     When there are parallel constitutional
    provisions in the federal and state constitutions and a party does not
    indicate the specific constitutional basis, we regard both federal and
    state constitutional claims as preserved, but consider the substantive
    standards under the Iowa Constitution to be the same as those
    developed by the United States Supreme Court under the Federal
    Constitution.   State v. Wilkes, 
    756 N.W.2d 838
    , 842 n.1 (Iowa 2008).
    Even in these cases in which no substantive distinction had been made
    between state and federal constitutional provisions, we reserve the right
    to apply the principles differently under the state constitution compared
    to its federal counterpart. State v. Bruegger, 
    773 N.W.2d 862
    , 883 (Iowa
    2009).
    8
    B. Framework       for   Evaluation     of   Claims    of   Ineffective
    Assistance of Counsel. To establish an ineffective-assistance-of-counsel
    claim under the Federal Constitution, an applicant must demonstrate
    that “ ‘(1) his trial counsel failed to perform an essential duty, and (2) this
    failure resulted in prejudice.’ ” State v. Ortiz, 
    789 N.W.2d 761
    , 764 (Iowa
    2010) (quoting State v. Straw, 
    709 N.W.2d 128
    , 133 (Iowa 2006)); see
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064, 
    80 L. Ed. 2d 674
    , 693 (1984). The applicant must prove both elements by a
    preponderance of the evidence. 
    Ledezma, 626 N.W.2d at 142
    .
    To prove the first prong of the Strickland test, the claimant must
    demonstrate that the attorney’s performance fell below the “standard
    demanded of a reasonably competent attorney.”          
    Id. We measure
    the
    attorney’s performance against the “ ‘prevailing professional norms.’ ” 
    Id. (quoting Strickland,
    466 U.S. at 
    688, 104 S. Ct. at 2065
    , 80 L. Ed. 2d at
    694). In evaluating the performance of counsel, we presume the attorney
    performed competently, and it is the applicant’s burden to present facts
    establishing inadequate representation.       Millam v. State, 
    745 N.W.2d 719
    , 721 (Iowa 2008). “Miscalculated trial strategies and mere mistakes
    in judgment normally do not rise to the level of ineffective assistance of
    counsel.” 
    Ledezma, 626 N.W.2d at 143
    . However, “strategic decisions
    made after a ‘less than complete investigation’ must be based on
    reasonable professional judgments which support the particular level of
    investigation conducted.” 
    Id. (quoting Strickland,
    466 U.S. at 
    691, 104 S. Ct. at 2066
    , 80 L. Ed. 2d at 695).          The “investigation must be
    reasonable under the circumstances”; therefore, we look to the facts of
    the case to determine whether there was a lack of diligence. 
    Id. Even when
    attorneys accept cases “in an area in which they are
    unfamiliar, they bear the responsibility to perform the work competently.
    9
    No client should be made to suffer through an attorney’s learning curve.”
    Comm. on Prof’l Ethics & Conduct v. Pracht, 
    505 N.W.2d 196
    , 198 (Iowa
    1993).   A reasonable investigation has been described as “a thorough
    study of as much literature in a particular field as [the attorney] can
    possibly absorb in the time allotted.”     Harry A. Gair, Selecting and
    Preparing Expert Witnesses, in 2 Am. Jur. Trials 585, 635 (1964). It is
    also suggested that an attorney with no experience in the particular field
    of the case should read at least one quality book on the subject. 
    Id. In order
    to meet the second prong of the Strickland test, an
    applicant must show that there is a reasonable probability that the result
    would have been different.    
    Strickland, 466 U.S. at 694
    , 104 S. Ct. at
    
    2068, 80 L. Ed. 2d at 698
    . The likelihood of a different result need not
    be more probable than not, but it must be substantial, not just
    conceivable. 
    Id. at 693–94,
    104 S. Ct. at 
    2067–68, 80 L. Ed. 2d at 697
    –
    98.
    C. Ineffective Assistance for Failure to Develop DNA Defense.
    In this case, King’s counsel recognized that DNA would play a major role
    in the case. King’s counsel, however, did not have much experience with
    DNA issues.      As a result, he hired Soll to provide him with expert
    assistance in the case.
    As he was preparing for trial, King’s counsel sent a letter asking
    Soll to look at the DNA evidence and determine “whether or not [Soll]
    could assist in Mr. King’s defense.”      King’s counsel sent Soll a file
    containing materials that indicated A.A.’s shirt, pants, and underwear
    were placed in the same evidence bag the day after the incident. Despite
    this, King’s counsel did not direct Soll’s attention to the issue of cross-
    contamination.
    10
    Soll apparently interpreted counsel’s request narrowly as one to
    “review the technology of the Des Moines crime lab that was doing the
    DNA analysis” to see if the results were correct. Essentially, Soll thought
    he was simply to determine whether the DNA found on A.A.’s clothing
    really belonged to King. Soll claimed it was not his job to put the DNA
    results into context. Prior to King’s trial, he did not identify any issue
    related to cross-contamination and thus did not consider whether the
    potential of cross-contamination would have any impact on the State’s
    case.
    After trial, Soll connected the dots. He realized that, because the
    DNA in the seminal fluid came from epithelial cells and not sperm cells,
    there was a “high probability” that the DNA found in the seminal fluid
    had migrated from another piece of clothing that was in the bag or from
    some other kind of contamination.          Further, Soll recognized that,
    because the seminal fluid in the underwear did not contain sperm, which
    is relatively hardy and long lasting, there was a “bigger probability” that
    the seminal fluid in the crotch of the underwear was not King’s.
    Thus, Soll now concluded that the powerful and seemingly
    irrefutable evidence at trial that the seminal fluid found in the crotch of
    the underwear contained the DNA of King could have been substantially
    undermined in two ways. First, the epithelial cell containing King’s DNA
    could have been transferred to the underwear from one of the other
    articles of clothing.   Second, the seminal fluid in the underwear was
    probably not King’s because of the lack of sperm.          If Soll’s newly
    developed opinions had been presented to the jury, it could have
    concluded that, while King had some kind of contact with A.A., the
    contact could have been a result of conduct other than sexual
    intercourse.
    11
    When an attorney hires an expert to assist in the defense, effective
    counsel cannot simply present the file to the expert and ask for an
    opinion.   Instead, the effective attorney must engage in a two-stage
    process. First, the attorney must develop a basic working knowledge of
    the subject matter about which the expert is consulted. See Richey v.
    Bradshaw, 
    498 F.3d 344
    , 362–63 (6th Cir. 2007). Second, the attorney
    must then consult with the expert and competently explore the potential
    issues. The mere hiring of an expert is meaningless “if counsel does not
    consult with that expert to make an informed decision about whether a
    particular defense is viable.” 
    Id. at 362.
    The question in this case is
    whether King’s counsel engaged in this two-stage process.
    In this case, King’s attorney appears not to have remembered the
    O.J. Simpson trial in which issues of contamination of apparently highly
    incriminating DNA evidence were at the heart of the defense attack. See,
    e.g., William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U.
    Colo. L. Rev. 827 (1996) (reviewing various cross-contamination issues).
    Further, King’s attorney apparently did not acquaint himself with the
    literature regarding DNA testing.    Had he done so, he would have
    recognized the need to explore potential contamination theories to attack
    harmful evidence. See, e.g., Comm. on DNA Forensic Sci., Nat’l Research
    Council, The Evaluation of Forensic DNA Evidence 80, 83–84 (1996)
    (noting concern with sample mishandling and further observing that
    sperm DNA can be separated from nonsperm DNA with differential DNA
    extraction); Comm. on DNA Tech. in Forensic Sci., Nat’l Research
    Council, DNA Technology in Forensic Science 20, 66 (1992) (noting
    contamination can result from the handling of other evidence samples
    and from mixed samples and noting that forensic investigators should
    take care to minimize the risk of contamination); Edward J. Imwinkelried
    12
    & D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 
    76 Wash. L
    . Rev.
    413, 473 (2001) (discussing cross-contamination in collecting and
    handling    of   DNA    evidence);   Michael    R.   Flaherty,     Annotation,
    Admissibility, in Prosecution for Sex-Related Offense, of Results of Tests on
    Semen or Seminal Fluids, 
    75 A.L.R. 4th 897
    , 910 (1989) (stating “expert
    examination of a sample to check for contamination . . . may be useful to
    call into question the reliability of the results”); William C. Thompson et
    al., Evaluating Forensic DNA Evidence: Essential Elements of a Competent
    Defense     Review,    The   Champion      16    (April   2003),     available
    at   http://www.bioforensics.com/articles/champion1/champion1.html
    (discussing the steps defense lawyers must take to adequately evaluate
    DNA evidence offered against their clients). Further, an examination of
    DNA case law would have revealed the potential for attack based upon
    cross-contamination of DNA evidence. See, e.g., United States v. Lowe,
    
    954 F. Supp. 401
    , 419 (D. Mass. 1996) (noting cross-contamination due
    to handling before, during, or after DNA extraction); State v. Wommack,
    
    770 So. 2d 365
    , 372 (La. Ct. App. 2000) (raising possible cross-
    contamination where clothing bagged together); Mincey v. State, 
    112 S.W.3d 748
    , 750, 753 (Tex. Ct. App. 2003) (noting possibility of cross-
    contamination when clothing put in same paper bag).                  Thus, a
    reasonably competent lawyer would have determined that a threshold
    question in DNA cases is whether there has been contamination of the
    evidence.
    If King’s counsel had reviewed the literature and been aware of the
    potential of cross-contamination, however, it is possible that King’s trial
    counsel still would not have understood the significance of the evidence
    in this case. A transfer of seminal fluid containing his client’s DNA from
    one piece of clothing onto another might not be very helpful.             For
    13
    example, to suggest that his seminal fluid containing DNA was originally
    on A.A.’s shirt and then migrated to the crotch of the underwear due to
    improper handling or when jostled around in the same paper bag not
    only seems improbable, but would not be all that helpful to the defense.
    A defense concession that seminal fluid containing King’s DNA was
    deposited on the shirt or jeans of the victim would not necessarily
    suggest that no sex act occurred between King and A.A.
    The issue, however, is more substantial. Not only was there the
    possibility that the DNA had migrated into the crotch of the underwear
    from other sources, it was also possible that the DNA was not linked at
    all to the seminal fluid in the crotch.     This is the kind of scientific
    knowledge that only an expert would likely bring to the table in a
    criminal defense.
    The question in this case boils down to this: Under the
    circumstances, was King’s counsel ineffective for failing to bring the facts
    of cross-contamination to the attention of the expert and to explore
    potential challenges to the sample-gathering process to show the
    evidence did not necessarily establish that the seminal fluid in the
    underwear belonged to King? On the one hand, counsel is not required
    to know all the ins and outs of technical subject matter.       One of the
    functions of an expert is to identify, define, and refine potential issues.
    Coleman v. Calderon, 
    150 F.3d 1105
    , 1114–15 (9th Cir.), rev’d on other
    grounds, 
    525 U.S. 141
    , 
    119 S. Ct. 500
    , 
    142 L. Ed. 2d 521
    (1998);
    Hendricks v. Calderon, 
    70 F.3d 1032
    , 1038–39 (9th Cir. 1995). In this
    regard, it is noteworthy that King’s counsel did provide Soll with the
    discovery file in the case. The discovery file included the police reports
    describing that the three articles of clothing were placed in one bag. As
    emphasized by the district court, a careful examination of the entire file
    14
    by Soll would have revealed the potential for cross-contamination. On
    the other hand, it is clear that, if King’s counsel had simply directed
    Soll’s attention to the facts like King’s mother did after King’s conviction,
    the evidence would likely have been fully developed. An attorney has an
    obligation to diligently and competently determine whether, given the
    circumstances of a particular case, there are issues “worth raising.”
    
    Millam, 745 N.W.2d at 723
    .         Because of his lack of knowledge or
    inattention to the file, the cross-contamination issue was not explored
    with Soll by King’s counsel prior to trial.
    In this case, however, it is not necessary to decide the issue of
    whether King’s counsel provided inadequate assistance because, upon
    our review of the entire record, we conclude that King has failed to show
    prejudice as required under the Strickland test.     Under Strickland, the
    question is whether there is a “reasonable probability” that the result
    would have been different.     
    Strickland, 466 U.S. at 694
    , 104 S. Ct. at
    
    2068, 80 L. Ed. 2d at 698
    .        Stated in other terms, the question is
    whether our confidence in the verdict is undermined by the failure to
    present a fuller picture of the DNA evidence. Id.; State v. Graves, 
    668 N.W.2d 860
    , 882 (Iowa 2003).
    The victim in this case testified that King sexually assaulted her.
    She testified that the assault occurred in King’s car between 2 and 4 a.m.
    At 4:45 a.m., the victim reappears at a convenience store with visible
    hickey-like bruises on her neck.      There was also unrebutted medical
    evidence that the victim suffered bruised breasts and rectal tears,
    indicating that a sexual assault did, in fact, occur.          The victim’s
    identification of King as the perpetrator was supported by the presence of
    King’s DNA on both sides of her neck. While King did not take the stand,
    his interview with the police was remarkable for its inconsistency.       At
    15
    first, he denied knowing the victim when presented a photograph of her.
    Then he admitted that he knew the victim but claimed he did nothing
    improper. Next, when told that the victim was accusing him of sexual
    assault, King made the remarkable claim that the victim was falsely
    accusing him of sexual assault in response to his claim that she broke
    the windshield of his car.
    Further, the new DNA evidence offered by King, though helpful in
    discrediting some aspects of the State’s DNA evidence, does not
    undermine our confidence in the verdict. Based on an experiment Soll
    candidly admits was not as accurate or extensive as it could have been,
    Soll is prepared to testify that the DNA in the crotch of the underwear
    could have migrated from other articles of clothing or been the result of
    other contamination, but he cannot exclude the possibility that such
    contamination did not, in fact, occur. Also, Soll’s theory is dependent
    upon the presence of King’s DNA on the other articles of clothing bagged
    with the victim’s underwear. The other articles of clothing that were in
    the paper bag were not tested by Soll or anyone else. Therefore, it is not
    at all clear that cross-contamination occurred.
    Similarly, Soll suggested that the lack of sperm in the crotch of the
    underwear indicated that the seminal fluid may have been old.         Soll,
    however, did not himself perform any testing on the underwear to
    confirm the lack of sperm. Further, even if there were no sperm in the
    seminal fluid and the seminal fluid was not a result of sexual activity on
    the night in question, these facts would not have diverted suspicion away
    from King as the assailant on the night of the attack.
    Soll also confidently asserted that, if he had examined the sperm
    in the vaginal swab, he would likely have been able to find identifiable
    DNA. Yet, he did not perform further testing on the sample. This was
    16
    likely a tactical decision, as King had admitted to counsel that he had
    engaged in unprotected intercourse with A.A.                The failure to perform
    further tests on the vaginal swab material, and indeed on any of the
    samples, makes King’s postconviction relief claim less compelling.
    Soll offered potential theories that undermined some aspects of the
    State’s evidence, but he would have left the jury to speculate whether his
    theories were, in fact, correct.        Also, the lack of identifiable sperm or
    seminal fluid is not determinative of King’s guilt. Indeed, even assuming
    that Soll’s revised opinion would have tended to discredit the testimony
    regarding DNA in the victim’s underwear, the presence of King’s DNA on
    the victim’s neck in the vicinity of hickey-like bruises suggests precursor
    activity consistent with the victim’s allegation that King engaged in
    sexual intercourse with her. Further, Soll’s testimony will not challenge
    the evidence of physical injuries that strongly indicates that a sexual
    assault in fact occurred or that King’s story to the police evolved from a
    claim not to know the victim into a charge that the victim smashed his
    windshield on the night of the alleged incident. 2                See Harrington v.
    Richter, 562 U.S. ___, ____, 
    131 S. Ct. 770
    , 792, 
    178 L. Ed. 2d 624
    , 647
    (2011) (concluding the defendant failed to show prejudice in part because
    new expert evidence offered in the posttrial proceeding did not challenge
    other conclusions and evidence presented by the State at trial, including
    the defendant’s shifting story regarding his involvement in the crime).
    2Interestingly, King offered evidence at the postconviction relief hearing that
    tended to further incriminate him. A party-goer, Dan Freese, testified that King and the
    victim left the apartment together in the early morning hours and that, upon return, the
    victim announced that she and King had sex. King was only charged with consensual
    sex under Iowa Code section 709.4(2)(c)(4). Therefore, Freese’s testimony tended to
    further incriminate King.
    17
    In light of the entire facts and circumstances, we conclude that
    King has failed to demonstrate a reasonable probability under Strickland
    that the verdict would have been different in this case if the defense had
    presented the evidence developed in the posttrial hearing related to
    DNA. 3
    D. Failure to Present Additional Testimony and Evidence of
    Motive. King also asserts that his trial counsel was ineffective for failing
    to elicit testimony from several witnesses at the party A.A. and King
    attended prior to the alleged assault. According to King, these witnesses
    would testify that several other men at the party touched A.A.’s breasts.
    He also claims they heard A.A. announce that she and King had
    consensual sex. 4 As we and the district court previously noted, the sole
    issue in this case is whether King and the victim had sex.
    Under these circumstances, we find it impossible to believe that
    testimony indicating others had touched the breasts of a fifteen-year-old
    girl who just announced she had sex with King would have changed the
    jury’s verdict. King, therefore, has not shown a substantial probability
    that a different outcome would have resulted had the additional evidence
    been offered. Indeed, as pointed out by the district court, such evidence,
    far from exculpating King, would have reinforced his guilt of sexual
    assault in the third degree, which only requires a sex act between a
    fourteen or fifteen year old and a person four or more years older than
    the teenager. See Iowa Code § 709.4(2)(c)(4).
    3Wereach our result under the Sixth Amendment of the United States
    Constitution and independently under article I, section 10 of the Iowa Constitution.
    4By the time of trial, one of these witnesses had left the country unbeknownst to
    King’s trial counsel.
    18
    King also suggests that his counsel provided ineffective assistance
    because he failed to call a witness who would have testified that A.A.
    made a previous false report of rape. While King offers evidence that the
    witness would have so testified, there has been no showing that the
    claim was false.      As a result, the statement would not be admissible
    under Iowa law, State v. Alberts, 
    722 N.W.2d 402
    , 409 (Iowa 2006), and
    the claim of ineffective assistance necessarily fails.
    Finally, counsel was not ineffective for failing to present evidence of
    A.A.’s possible motives for making a false claim of sexual assault. King
    asserts trial counsel should have asked the victim about her request for
    her family members to be reimbursed for lost wages in connection with
    the case. He also claims A.A. may have made up the sexual assault to
    avoid paying damages for allegedly vandalizing his car on the evening in
    question.   Evidence related to the alleged vandalization of the car did
    come into the record through the testimony of a police officer who
    interviewed King, and thus the failure to present additional evidence does
    not present a strong ineffective-assistance claim.           Even if counsel’s
    failure to present evidence of A.A.’s possible motives for accusing King
    constituted ineffective assistance of counsel, it is hard to see how these
    relatively minor issues had a reasonable probability of affecting the
    outcome of this case.         Our confidence in the outcome has not been
    undermined by these alleged shortcomings of King’s counsel as required
    by Strickland.
    IV. Conclusion.
    King has failed to meet the prejudice prong of Strickland.               As a
    result,   the    district   court   properly   denied   King’s   application    for
    postconviction relief.
    AFFIRMED.
    All justices concur except Mansfield, J., who takes no part.