IN THE COURT OF APPEALS OF IOWA
No. 23-0740 Filed February 5, 2025
FREDERICK ELMAR ELIFRITZ III, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Greg Milani, Judge.
An applicant appeals the denial of his application for postconviction relief.
AFFIRMED.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.
Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Tabor, C.J., Chicchelly, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
VOGEL, Senior Judge.
Frederick Elifritz was convicted of third-degree sexual abuse, incest, and
lascivious acts with a minor after sexually abusing his daughter. He now seeks
postconviction relief (“PCR”) from those convictions, arguing his counsel failed to
meaningfully defend the State’s case against him. The PCR court denied relief,
and he appeals. We agree with the PCR court that all of Elifritz’s grievances stem
from reasoned, strategic decisions by trial counsel. Accordingly, we find no breach
of essential duty by counsel nor resulting prejudice to Elifritz and affirm the PCR
court.
I. Factual Background and Proceedings.
Growing up, the daughter was raised by her mother—Elifritz was absent
from her life. She experienced some developmental delays and at times received
special education. When she turned twelve, the daughter expressed an interest in
knowing her father, so the mother located Elifritz. Elifritz expressed a similar
interest in starting a relationship with the daughter. The visits went well and, over
time, Elifritz and the mother also rekindled their relationship, eventually marrying.
At first, the daughter was thrilled with her reunited family. However, Elifritz’s
behavior toward her changed while she was in high school.
When the mother was at work, Elifritz started showing his daughter
pornography. He later asked if she “wanted to do what was on the video.” The
daughter refused, but Elifritz took her to his bedroom and removed her clothes.
She was scared and “froze up” as he “was sticking his penis in [her] vagina.” After
it was over, he told the daughter not to tell anyone. Later the daughter revealed
that it happened again, “several times.” 3
The daughter eventually confided in a friend, who reported it to a teacher
and a counselor. The school alerted law enforcement, who began investigating.
As part of the investigation, law enforcement arranged a phone call between the
daughter and Elifritz. During that short call, the daughter told her father that she
told a friend about them “having sex” and the police wanted to speak to her. The
father asked if anyone was there with her, and the daughter said “no.” The father
then said, “just say you don’t know what [the friend] is talking about.” He then
asked if the daughter spoke to a teacher, and she said “no.” Elifritz again told her
to “act like you don’t know what [the friend was] talking about.”
The State charged Elifritz with incest, lascivious conduct with a minor, and
two counts of third-degree sexual abuse. See Iowa Code §§ 726.2, 709.14,
709.4(1)(a), (1)(b)(1) (2014). The case proceeded to a jury trial, during which the
daughter, her mother, the investigating officer, and the daughter’s forensic
interviewer testified. After the State rested, Elifritz’s counsel obtained a directed
verdict on one of the sexual abuse counts. Elifritz declined to testify, and he offered
no other evidence in his defense. The jury deliberated and convicted him of the
three remaining counts.1
Elifritz later applied for PCR. He claimed his counsel provided ineffective
assistance by failing to present several key facts to the jury, not cross-examining
the daughter, and not excluding the phone call between himself and the daughter.
After a hearing on the application, which included testimony from Elifritz’s trial
1 Elifritz appealed his sentence and the State conceded that an enhancement,
several fines, and a surcharge were improperly assessed. Our supreme court thus summarily vacated the offending portions of his sentence and left the remaining terms intact. See State v. Elifritz, No. 19-0390 (Aug. 30, 2019). 4
counsel, the PCR court denied relief. The court found that all of Elifritz’s alleged
failures by counsel were deemed reasonable trial strategy and thus Elifritz was not
deprived of effective assistance of counsel. Elifritz now appeals.
II. Analysis.
Our state and federal constitutions guarantee assistance of counsel for
criminal defendants. See U.S. Const. amend. VI; Iowa Const. art. I, § 10. To
realize that constitutional guarantee, counsel must provide those defendants with
effective assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). If
a criminal defendant is convicted and believes defense counsel’s representation
fell below the constitutional floor, the defendant may apply for postconviction relief.
Iowa Code § 822.2(1)(a) (2020). To obtain that relief, an applicant must show
“both that counsel breached an essential duty and that constitutional prejudice
resulted.” Smith v. State, 7 N.W.3d 723, 726 (Iowa 2024). Because ineffective-
assistance claims implicate constitutional rights, our review is de novo. Id. at 725.
To show a breach, the applicant “must demonstrate the attorney performed
below the standard demanded of a reasonably competent attorney.” Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001). We presume counsel performed
competently and applicants must show more than “that trial strategy backfired or
that another attorney would have prepared and tried the case somewhat
differently.” State v. Tracy, 482 N.W.2d 675, 679 (Iowa 1992) (citation omitted).
Further, “strategic decisions made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Ledezma, 626 N.W.2d
at 143 (citation omitted). “[W]e must evaluate trial counsel’s actions from the 5
perspective of when the decision was made—during the course of trial.” State v.
Ondayog, 722 N.W.2d 778, 785 (Iowa 2006).
To show prejudice, the applicant must “prove that there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Tracy, 482 N.W.2d at 680 (cleaned up).
To meet this high bar, applicants must show more than “a mere impairment of the
presentation of the defense.” Ledezma, 626 N.W.2d at 143.
Here, Elifritz argues counsel breached an essential duty by not presenting
seven material facts to the jury through cross-examination of the daughter and
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IN THE COURT OF APPEALS OF IOWA
No. 23-0740 Filed February 5, 2025
FREDERICK ELMAR ELIFRITZ III, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Greg Milani, Judge.
An applicant appeals the denial of his application for postconviction relief.
AFFIRMED.
Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.
Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Tabor, C.J., Chicchelly, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
VOGEL, Senior Judge.
Frederick Elifritz was convicted of third-degree sexual abuse, incest, and
lascivious acts with a minor after sexually abusing his daughter. He now seeks
postconviction relief (“PCR”) from those convictions, arguing his counsel failed to
meaningfully defend the State’s case against him. The PCR court denied relief,
and he appeals. We agree with the PCR court that all of Elifritz’s grievances stem
from reasoned, strategic decisions by trial counsel. Accordingly, we find no breach
of essential duty by counsel nor resulting prejudice to Elifritz and affirm the PCR
court.
I. Factual Background and Proceedings.
Growing up, the daughter was raised by her mother—Elifritz was absent
from her life. She experienced some developmental delays and at times received
special education. When she turned twelve, the daughter expressed an interest in
knowing her father, so the mother located Elifritz. Elifritz expressed a similar
interest in starting a relationship with the daughter. The visits went well and, over
time, Elifritz and the mother also rekindled their relationship, eventually marrying.
At first, the daughter was thrilled with her reunited family. However, Elifritz’s
behavior toward her changed while she was in high school.
When the mother was at work, Elifritz started showing his daughter
pornography. He later asked if she “wanted to do what was on the video.” The
daughter refused, but Elifritz took her to his bedroom and removed her clothes.
She was scared and “froze up” as he “was sticking his penis in [her] vagina.” After
it was over, he told the daughter not to tell anyone. Later the daughter revealed
that it happened again, “several times.” 3
The daughter eventually confided in a friend, who reported it to a teacher
and a counselor. The school alerted law enforcement, who began investigating.
As part of the investigation, law enforcement arranged a phone call between the
daughter and Elifritz. During that short call, the daughter told her father that she
told a friend about them “having sex” and the police wanted to speak to her. The
father asked if anyone was there with her, and the daughter said “no.” The father
then said, “just say you don’t know what [the friend] is talking about.” He then
asked if the daughter spoke to a teacher, and she said “no.” Elifritz again told her
to “act like you don’t know what [the friend was] talking about.”
The State charged Elifritz with incest, lascivious conduct with a minor, and
two counts of third-degree sexual abuse. See Iowa Code §§ 726.2, 709.14,
709.4(1)(a), (1)(b)(1) (2014). The case proceeded to a jury trial, during which the
daughter, her mother, the investigating officer, and the daughter’s forensic
interviewer testified. After the State rested, Elifritz’s counsel obtained a directed
verdict on one of the sexual abuse counts. Elifritz declined to testify, and he offered
no other evidence in his defense. The jury deliberated and convicted him of the
three remaining counts.1
Elifritz later applied for PCR. He claimed his counsel provided ineffective
assistance by failing to present several key facts to the jury, not cross-examining
the daughter, and not excluding the phone call between himself and the daughter.
After a hearing on the application, which included testimony from Elifritz’s trial
1 Elifritz appealed his sentence and the State conceded that an enhancement,
several fines, and a surcharge were improperly assessed. Our supreme court thus summarily vacated the offending portions of his sentence and left the remaining terms intact. See State v. Elifritz, No. 19-0390 (Aug. 30, 2019). 4
counsel, the PCR court denied relief. The court found that all of Elifritz’s alleged
failures by counsel were deemed reasonable trial strategy and thus Elifritz was not
deprived of effective assistance of counsel. Elifritz now appeals.
II. Analysis.
Our state and federal constitutions guarantee assistance of counsel for
criminal defendants. See U.S. Const. amend. VI; Iowa Const. art. I, § 10. To
realize that constitutional guarantee, counsel must provide those defendants with
effective assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). If
a criminal defendant is convicted and believes defense counsel’s representation
fell below the constitutional floor, the defendant may apply for postconviction relief.
Iowa Code § 822.2(1)(a) (2020). To obtain that relief, an applicant must show
“both that counsel breached an essential duty and that constitutional prejudice
resulted.” Smith v. State, 7 N.W.3d 723, 726 (Iowa 2024). Because ineffective-
assistance claims implicate constitutional rights, our review is de novo. Id. at 725.
To show a breach, the applicant “must demonstrate the attorney performed
below the standard demanded of a reasonably competent attorney.” Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001). We presume counsel performed
competently and applicants must show more than “that trial strategy backfired or
that another attorney would have prepared and tried the case somewhat
differently.” State v. Tracy, 482 N.W.2d 675, 679 (Iowa 1992) (citation omitted).
Further, “strategic decisions made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Ledezma, 626 N.W.2d
at 143 (citation omitted). “[W]e must evaluate trial counsel’s actions from the 5
perspective of when the decision was made—during the course of trial.” State v.
Ondayog, 722 N.W.2d 778, 785 (Iowa 2006).
To show prejudice, the applicant must “prove that there is a reasonable
probability that but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Tracy, 482 N.W.2d at 680 (cleaned up).
To meet this high bar, applicants must show more than “a mere impairment of the
presentation of the defense.” Ledezma, 626 N.W.2d at 143.
Here, Elifritz argues counsel breached an essential duty by not presenting
seven material facts to the jury through cross-examination of the daughter and
state witnesses. Although touching on these omissions, Elifritz ultimately takes a
totality approach on appeal and argues that the overall impact of counsel’s failure
to present those facts amounted to “structural error”—specifically that “counsel
[did] not place the prosecution’s case against meaningful adversarial testing.” See
Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (discussing three types of
structural errors). We disagree.
In cases finding structural error, counsel’s omissions went beyond mere
tactical choices to downplay certain facts or avoid opening the door to others. See,
e.g., id. at 252–53 (finding structural error when PCR counsel was warned the
application could be dismissed under Iowa Rule of Civil Procedure 1.944, the State
moved to dismiss under that rule, and counsel never responded); Villa Magana v.
State, 908 N.W.2d 255, 259–60 (Iowa 2018) (per curiam) (finding structural error
when PCR case was dismissed under rule 1.944 due to counsel’s inaction). Yet 6
here, the identified omissions stemmed from reasoned strategy, rather than a
dereliction of duty to challenge the State’s case.
For starters, Elifritz believes his counsel should have explored his
cooperation and consent to a law enforcement interview and search of his home,
which did not yield the “black case” of pornography described by the daughter, and
that testing revealed no DNA on his or the daughter’s clothing.2 However, the
investigating officer’s testimony at trial was brief, leaving counsel with a limited
scope of cross-examination. Moreover, trial counsel reasoned that minimal
testimony was beneficial—the officer came across as conducting “only a cursory
investigation” and it appeared the officer “jumped to a conclusion that Mr. Elifritz
was guilty without much other investigation or evidence.” Walking the jury through
other investigative steps could have added depth to the trial testimony, which gave
the appearance of an otherwise shallow investigation. Critically, exploring the
investigation and Elifritz’s cooperation also could have opened the door to what
officers did find in Elifritz’s home—his internet history, including websites relating
to “incest with your daughter” and “having sex with your daughter.” The trial court
had excluded that evidence, and counsel reasonably sought to keep that door
closed.
Elifritz also disputes counsel’s failure to cross-examine the daughter, who
testified via closed circuit television. However, counsel explained that the daughter
did not “testify nearly as well as she had during her interviews” and in her
2 Elifritz also alleges counsel should have discussed that law enforcement did not
find any “condoms kept in the nightstand.” However, the daughter’s trial testimony did not describe any condoms or their location. 7
deposition—“she left out most of the things that she” discussed during her
interviews and deposition. Had counsel cross-examined her, that would have
allowed the State to rehabilitate the daughter, which may have prompted her to
disclose additional incidents of abuse. As counsel reasoned, “sometimes it’s as
much about what you’re trying to prevent from coming in as what it is that did come
in.” That strategy proved worthwhile, as counsel successfully obtained a directed
verdict on one count of sexual abuse based on the daughter’s limited testimony.
We similarly find counsel’s decision not to address the daughter’s
momentary recantation falls within the bounds of permissible strategy. Early in the
investigation, the daughter had a physical examination scheduled. She briefly
recanted—cancelling the examination—though that recantation was short-lived.
Counsel explained that, had he explored that moment, it would have opened the
door for the State’s witness, a forensic interviewer, to testify and explain why
victims may initially recant. Counsel believed the interviewer’s testimony would
have harmed Elifritz, and by avoiding the topic, he cabined the interviewer’s
unfavorable testimony at trial.
Finally, Elifritz believes his counsel should have prevented the phone call
between himself and the daughter from being admitted. Prior to the criminal trial,
counsel moved in limine to exclude the call on hearsay grounds, which was
overruled. In this PCR action, Elifritz argues that it should have been excluded
because the daughter lacked the mental capacity to consent to the phone call and
the State could not argue otherwise because one of the State’s sexual-abuse
theories was that the daughter was “suffering from a mental defect or incapacity
which precludes giving consent.” See Iowa Code § 709.4(1)(b)(1). Like the PCR 8
court, we find this argument without merit. The trial information charged Elifritz
with third-degree sexual abuse arising from either a lack of capacity to consent or
the act being performed against the daughter’s will. Thus, the State was in no way
compelled to concede the daughter’s capacity to consent. Further, counsel
testified to researching the issue and finding no other basis to exclude the phone
call. Nor did counsel believe the daughter lacked capacity to consent to the call
based on his repeated observations of her. Because we agree any objection to
the phone call based on the daughter’s ability to consent would have been
meritless, counsel did not breach any duty. See State v. Bearse, 748 N.W.2d 211,
215 (Iowa 2008) (“Counsel cannot fail to perform an essential duty by merely failing
to make a meritless objection.”).3
Because all of Elifritz’s allegations stem from his trial counsel’s reasoned,
strategic decisions, there was no breach of duty. We therefore affirm denial of
postconviction relief.
3 Elifritzalso points to counsel’s purported failure to subpoena the daughter’s mental-health counseling records. Yet the PCR court’s ruling does not address this issue and Elifritz’s brief on appeal mentions it only in passing. Thus, we find this issue is not properly before us. See State v. Louwrens, 792 N.W.2d 649, 650 n.1 (Iowa 2010).