Dustin Lee Truax v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0435
Filed September 25, 2019
DUSTIN LEE TRUAX,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
The applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Kevin Hobbs, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and May and Greer, JJ.
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POTTERFIELD, Presiding Judge.
Dustin Truax appeals from the denial of his application for postconviction
relief (PCR). In 2012, a jury convicted Truax of two counts of lascivious acts with
a child. See Iowa Code § 709.8 (2009). He was later sentenced to serve two
consecutive ten-year terms of imprisonment.
Truax filed a direct appeal, in which his only challenge was the sentence
imposed by the district court. See State v. Truax, No. 13-0242, 2014 WL
970034, at *1 (Iowa Ct. App. Mar. 12, 2014). He argued the court failed to give
adequate reasons for imposing consecutive sentences. A panel of our court
affirmed the sentence, and procedendo issued in June 2014.
Truax filed his PCR application in October 2015. He amended it once
before it came on for hearing in January 2018. Truax maintained the underlying
trial information charged him with two class “D” felonies, which were improperly
amended to two class “C” felonies after trial but prior to sentencing. He also
claimed his trial and appellate counsel provided ineffective assistance in a
number of ways. The PCR court denied the petition in its entirety.
On appeal, Truax renews most of his PCR claims. He challenges the
amendment to the trial information and urges us to find trial and appellate
counsel ineffective, arguing the following errors: failing to object to vouching,
hearsay, and more-prejudicial-than-probative evidence; poor performance at trial
due to substandard trial preparation; and failure to object to prosecutorial
misconduct.
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We generally review PCR proceedings for correction of errors at law.
Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018). That being said, we review
constitutional claims, such as ineffective assistance of counsel, de novo. Id.We begin with Truax’s claim that the trial information was improperly
amended, changing the offenses Truax was charged with from two class “D”
felonies to two class “C” felonies. As Truax notes, in ruling on his direct appeal,
our court stated in passing that the description of the charges against Truax as
“D” felonies in the trial information “was a scrivener’s error.” Truax, 2014 WL
970034, at *1 n.1. Relying on that statement, the PCR court refused to address
Truax’s claim.
Here, Truax continues to argue that either the trial information was never
amended or, at the least, that it was not properly amended. But we iterate our
previous statement that the error in the description was simply a scrivener’s
error, which does not rise to the level of due process violation that Truax claims.
Iowa Code section 709.8 provides:
It is unlawful for any person sixteen years of age or older to
perform any of the following acts with a child with or without the
child’s consent unless married to each other, for the purpose of
arousing or satisfying the sexual desires of either of them:
1. Fondle or touch the pubes or genitals of a child.
2. Permit or cause a child to fondle or touch the person’s
genitals or pubes.
3. Solicit a child to engage in a sex act or solicit a person to
arrange a sex act with a child.
4. Inflict pain or discomfort upon a child or permit a child to
inflict pain or discomfort on the person.
Any person who violates a provision of this section involving
an act included in subsection 1 or 2 shall, upon conviction, be guilty
of a class “C” felony. Any person who violates a provision of this
section involving an act included in subsection 3 or 4 shall, upon
conviction, by guilty of a class “D” felony.
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While the trial information at issue states the charges were class “D” felonies,
each count alleges that Truax, “[f]or the purpose of arousing or satisfying the
sexual desires of either of them fondle or touch the pubes or genitals of a child
OR permit or cause a child to fondle or touch the person’s genitals or pubes.”
These allegations fall within section 709.8(1) and (2), which are explicitly defined
as class “C” felonies by the statute. Moreover, the minutes of evidence attached
to the trial information support the charges under section 709.8(1) and (2). At
other times in the underlying case—including the original criminal complaints that
were filed and a plea deal offered to Truax by the State—the charges were
correctly described as class “C” felonies. The inaccurate description in the trial
information of the “level” of crimes did not prevent Truax from knowing what
charges he was facing nor what the allegations against him involved. And Truax
does not claim that he was unaware of the amount of time he could be required
to serve if convicted or that his strategy would have changed—such as entering
into the plea agreement—if the charges were accurately described. The error
was merely clerical in nature. See State v. Holmes, No. 12-2312, 2013 WL
6405363, at *2 (Iowa Ct. App. Dec. 5, 2013) (denying defendant’s claim his
sentence was illegal when the sentencing order referenced nonexistent code
sections; finding the error was merely clerical in nature and noting the defendant
“does not claim here, nor did he in his pro se motion, that he was unaware what
crime he was charged with . . . and what specific elements were involved in the
State’s theory of prosecution at his trial”). And “[n]o indictment is invalid or
insufficient, nor can the trial, judgment, or other proceeding thereon be affected
5
by reason of any defect or imperfection in a matter of form which does not
prejudice a substantial right of the defendant.” Iowa R. Crim. P. 2.4(7).
Next, we consider Truax’s claims of ineffective assistance. He raises a
number of specific claims but generally fails to argue how these alleged failures
of counsel caused him to suffer prejudice. It is up to Truax to prove “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). Pointing out alleged errors by counsel is not enough, as we
begin with the presumption that “counsel’s actions were reasonable under the
circumstances and fell within the normal range of professional competency.”
State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). We may dispose of a
ineffective-assistance-of-counsel claim when Truax fails to proves either the
breach-of-duty prong or the prejudice prong. See id.Truax places his various claims in three groups: (1) improper vouching by
an expert witness, (2) cumulative errors by trial counsel, and (3) prosecutorial
misconduct.
Within his first grouping, Truax argues his trial and appellate counsel were
ineffective when they failed to object to vouching testimony by the forensic
interviewer who interviewed both complaining witnesses. But Truax did not first
get a ruling on this issue by the PCR court, and he does not claim his PCR
counsel was ineffective. Therefore, this claim has not been preserved for our
review. See Archer v. State, No. 12-0995, 2013 WL 4769344, at *3 (Iowa Ct.
App. Sept. 5, 2013) (determining the applicant’s claim was not preserved for
review because it “was not ruled upon by the [PCR] court, and [the applicant]
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d[id] not raise it within the context of a claim of ineffective assistance of
postconviction counsel”).
Additionally, Truax maintains his trial counsel should have objected to the
handwritten notes from the students’ counselor that were taken when S.M. first
made the allegation of abuse. The notes state, “Mom’s former boyfriend touched
[S.M.] (and she claims [her sister]) on her private parts—with his hands and
penis. She did not tell Mom because she was scared. Mom is not with him
anymore. It happened more than once. He just left them this month.” The PCR
court determined the handwritten notes were not hearsay, as they were likely
offered to explain the counselor’s subsequent actions and the initiation of the
case—not the truth of the matter asserted. See State v. Elliott, 806 N.W.2d 660,
667 (Iowa 2011) (“Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” (citation omitted)). Truax does not point out an error in the
court’s ruling. Instead, he changes tack and argues the handwritten notes should
have been excluded because the probative value is substantially outweighed by
the danger of unfair prejudice. See Iowa R. Evid. 5.403. And, no matter the
theory of why the evidence should have been objected to and ultimately
excluded, he does nothing to link the admission of the evidence he complains of
and the result of his trial. Truax has failed to establish either breach of duty or
prejudice; these claims fail.
Next, we consider Traux’s claims of ineffective assistance involving trial
counsel’s “series of mistakes at trial and in preparation for trial.” Truax alleges
trial counsel violated his duty by not taking the depositions of the complaining
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witnesses; failing to challenge the amendment of the trial information from class
“D” felonies to class “C” felonies; advising Truax not to testify in his own defense;
incorrectly referencing Truax’s “plea of guilty”—as opposed to “not guilty”—during
closing argument; and failing to file a bill of particulars to clarify the charges
against Truax. While Truax’s trial counsel did not depose the complaining
witnesses, one of Truax’s prior counsel did. And Truax does not provide
explanation of why a second round of depositions was necessary. As we already
indicated, the misstatement in the trial information was a scrivener’s error;
counsel’s failure to challenge or address the error earlier in the proceedings was
not prejudicial to Truax. And a bill of particulars, when it was clear with what
crimes Truax was charged and under what theory, is not necessary. See State
v. Watkins, 659 N.W.2d 526, 533 (Iowa 2003) (“A bill of particulars should be
allowed when the charge and minutes do not sufficiently inform the defendant of
the criminal acts of which she is accused.”). Insofar as Truax argues trial
counsel “pressured” him not to testify at trial, the PCR court ruled that counsel’s
advice not to testify was a trial strategy that fell within professional norms, as
counsel based his advice on the fact that Truax had prior, impeachable offenses
the jury would then learn about and counsel’s concern that the prosecutor’s
reiterating the testimony of the complaining witnesses with Truax on the stand—
even with Truax’s denials—would be more detrimental than helpful to Truax’s
defense. On appeal, Truax does not articulate how this ruling is in error; he also
does not explain how his decision not to testify resulted in prejudice. Finally,
while counsel misspoke when he referenced Truax’s “plea of guilty” during
closing argument, he immediately corrected the error, stating, “But by my client’s
8
plea of guilty, by him coming in here and pleading—or by my client’s plea of not
guilty, I better fix that—he is denying the most important parts of these—of these
elements of the offense.” We cannot say, and Truax has offered no authority to
support, that counsel’s inadvertent reference to a guilty plea, which counsel then
immediately corrected, prejudiced Truax. These claims of ineffective assistance
fail.
Finally, we consider Truax’s claim that he received ineffective assistance
from trial counsel because counsel failed to object to prosecutorial misconduct
when the prosecutor, during closing argument, improperly asserted her personal
opinion. The prosecutor stated, “I would like you to take all of the information
that you heard in this courtroom and take the law that the judge gave you and
take your common sense and go into the jury room and talk about it. Talk about
the law. Talk about the facts. And find the defendant guilty on both counts;
count I and count II of lascivious acts with a child.” We agree with the PCR court
that the prosecutor’s statement did not constitute prosecutorial misconduct. She
did not express a personal belief or imply personal knowledge about the
defendant’s guilt or innocence. See State v. Vickroy, 205 N.W.2d 478, 750 (Iowa
1973). It is not improper for a prosecutor to indicate a belief the evidence
admitted at trial supports the charged offense. See State v. Shanahan, 712
N.W.2d 121, 139 (Iowa 2006) (finding the prosecutor’s statement was not
misconduct because it was “nothing more than the prosecutor’s belief the
evidence would support the charge”). Moreover, the statements are not the type
to cause the jury to decide the case on emotion rather than a dispassionate
review of the evidence. See State v. Graves, 668 N.W.2d 860, 875 (Iowa 2003).
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Because the prosecutor did not engage in misconduct, we need not consider
whether counsel was ineffective for not objecting to the remarks. See, e.g.,
Martin v. State, No. 12-2240, 2014 WL 69542, at *8–9 (Iowa Ct. App. Jan. 9,
2014) (recognizing the applicant’s claim of ineffective assistance based on failure
to object to prosecutorial misconduct necessarily collapses if the claim of
prosecutorial misconduct cannot be proved).
Having considered each of Truax’s claims, we agree with the PCR court
that no relief is warranted. We affirm.
AFFIRMED.