IN THE COURT OF APPEALS OF IOWA
No. 21-1196 Filed February 22, 2023
JOHN MATTHEW OSBORN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Craig M.
Dreismeier, Judge.
John Osborn appeals the denial of his application for postconviction relief.
AFFIRMED.
Brian S. Munnelly, Omaha, Nebraska, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Badding, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023). 2
VOGEL, Senior Judge.
John Osborn appeals the denial of his application for postconviction relief
(PCR). He was previously convicted of four counts of sexual abuse in the third
degree. In this PCR action, he argues his trial counsel was ineffective for failing
to object to certain witness testimony as beyond the scope of the minutes of
evidence and to admission of the criminal complaint as hearsay. We affirm the
denial of his application, finding he failed to meet his burden of proof in these
claims.
I. Background Facts and Proceedings
We set out the facts underlying Osborn’s convictions in his direct appeals.
See State v. Osborn (Osborn II), No. 18-0303, 2019 WL 2871411, at *1–5 (Iowa
Ct. App. July 3, 2019); State v. Osborn (Osborn I), No. 15-0899, 2016 WL 3273104,
at *1–2 (Iowa Ct. App. Jun. 15, 2016). Briefly, Osborn was accused of committing
sexual abuse in the third degree in July 2014 in four separate acts against M.V.,
who was then fourteen years old. M.V. was friends with Osborn’s daughter and
was staying overnight in Osborn’s home at the time of the alleged abuse.
The matter proceeded to a bench trial in February 2015, after which the
district court found Osborn guilty as charged. However, the district court granted
Osborn’s post-trial motion for a new trial on the basis of newly discovered evidence
relating to the timing of certain text messages. We affirmed the grant of new trial
on appeal. See Osborn I, 2016 WL 3273104, at *5–6.
Osborn proceeded to a second trial in December 2017, this time before a
jury. Both trials included testimony from M.V. and from Michaela, who was
Osborn’s wife in July 2014. The jury found Osborn guilty as charged. We affirmed 3
his conviction on appeal, preserving his ineffective-assistance-of-counsel claims
for a possible PCR action. See Osborn II, 2019 WL 2871411, at *5–7.
In November 2019, Osborn filed his PCR application, raising his preserved
ineffective-assistance claims. The matter proceeded to a trial on the merits based
on a stipulated record, which included a deposition from his trial counsel. In August
2021, the district court found Osborn failed to meet his burden of proof on his
ineffective-assistance claims and denied his application.
Osborn appeals. “We review ineffective-assistance-of-counsel claims de
novo.” State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
II. Analysis
“To succeed on a claim of ineffective assistance of counsel, a claimant must
establish by a preponderance of the evidence: ‘(1) his trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.’” Id. at 320 (quoting
State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)). “[R]eversal is warranted only
where a claimant makes a showing of both of these elements.” Id. “If we conclude
a claimant has failed to establish either of these elements, we need not address
the remaining element.” Id.
Osborn’s first ineffective-assistance claim relates to Michaela’s testimony.
During the first trial, Michaela testified she was asleep in bed during the time in
question; however, she woke up around midnight and again at 3:00 a.m., and
Osborn was next to her in bed at both times. During the second trial, Michaela
testified she did not specifically remember waking up that night and was not aware
when Osborn was in bed with her. Osborn argues his trial counsel—although 4
pressing Michaela on cross examination—was ineffective for failing to object to
Michaela’s second-trial testimony as beyond the scope of the minutes of evidence.
The State is required to file minutes of evidence, which identify each
expected witness and provide “a full and fair statement of the witness’[s] expected
testimony.” Iowa R. Crim. P. 2.5(3). Under this rule, “there is no requirement that
the minutes of testimony provide a complete catalogue of witness testimony at trial,
but only that the defense be placed on fair notice and not subject to surprise
testimony.” State v. Shorter, 893 N.W.2d 65, 81 (Iowa 2017). “We generally will
not reverse on the ground of technical defects in procedure unless it appears in
some way to have prejudiced the complaining party or deprived him or her of full
opportunity to make defense to the charge presented in the indictment or
information.” State v. Braun, 495 N.W.2d 735, 741 (Iowa 1993).
The minutes of evidence here identify Michaela as a witness and generally
state she “will testify as to her actions, observations and recollections regarding
this incident.” Had Osborn objected to Michaela’s second-trial testimony as
beyond the minutes of evidence, he could not have shown the changes in her
testimony prejudiced him. During cross-examination at the second trial, Michaela
told Osborn’s trial counsel, “You had e-mailed me a couple months ago asking me
to review my testimony because you didn’t think my timing was correct. Upon
further consideration, I don’t feel confident in those times.” Thus, Osborn can
hardly claim surprise that Michaela backed off of her more specific testimony for
the second trial after his counsel specifically asked her to review her prior
testimony. Furthermore, the State during the second trial said it did not know
Michaela would back away from her earlier testimony, and Osborn provided no 5
evidence showing otherwise. See Shorter, 893 N.W.2d at 82–83 (finding a
witness’s deviation from the minutes of testimony did not prejudice the defendant
when the defendant “has not established that the prosecution had prior knowledge
that such testimony would be forthcoming”). Without a showing that the change in
Michaela’s testimony between the two trials deprived him of the opportunity to
defend against the charges, he cannot prove his trial counsel breached an
essential duty by failing to object to the Michaela’s testimony as beyond the
minutes of evidence.
Additionally, Osborn did not show any breach of duty caused him prejudice.
Osborn hoped Michaela’s testimony would corroborate his testimony that he was
in his own bed during the time in question. Excluding Michaela’s second-trial
testimony would not reinstate her first-trial testimony that Osborn was in their bed
at two separate times during the night at issue. Furthermore, the State had
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IN THE COURT OF APPEALS OF IOWA
No. 21-1196 Filed February 22, 2023
JOHN MATTHEW OSBORN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Craig M.
Dreismeier, Judge.
John Osborn appeals the denial of his application for postconviction relief.
AFFIRMED.
Brian S. Munnelly, Omaha, Nebraska, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Badding, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023). 2
VOGEL, Senior Judge.
John Osborn appeals the denial of his application for postconviction relief
(PCR). He was previously convicted of four counts of sexual abuse in the third
degree. In this PCR action, he argues his trial counsel was ineffective for failing
to object to certain witness testimony as beyond the scope of the minutes of
evidence and to admission of the criminal complaint as hearsay. We affirm the
denial of his application, finding he failed to meet his burden of proof in these
claims.
I. Background Facts and Proceedings
We set out the facts underlying Osborn’s convictions in his direct appeals.
See State v. Osborn (Osborn II), No. 18-0303, 2019 WL 2871411, at *1–5 (Iowa
Ct. App. July 3, 2019); State v. Osborn (Osborn I), No. 15-0899, 2016 WL 3273104,
at *1–2 (Iowa Ct. App. Jun. 15, 2016). Briefly, Osborn was accused of committing
sexual abuse in the third degree in July 2014 in four separate acts against M.V.,
who was then fourteen years old. M.V. was friends with Osborn’s daughter and
was staying overnight in Osborn’s home at the time of the alleged abuse.
The matter proceeded to a bench trial in February 2015, after which the
district court found Osborn guilty as charged. However, the district court granted
Osborn’s post-trial motion for a new trial on the basis of newly discovered evidence
relating to the timing of certain text messages. We affirmed the grant of new trial
on appeal. See Osborn I, 2016 WL 3273104, at *5–6.
Osborn proceeded to a second trial in December 2017, this time before a
jury. Both trials included testimony from M.V. and from Michaela, who was
Osborn’s wife in July 2014. The jury found Osborn guilty as charged. We affirmed 3
his conviction on appeal, preserving his ineffective-assistance-of-counsel claims
for a possible PCR action. See Osborn II, 2019 WL 2871411, at *5–7.
In November 2019, Osborn filed his PCR application, raising his preserved
ineffective-assistance claims. The matter proceeded to a trial on the merits based
on a stipulated record, which included a deposition from his trial counsel. In August
2021, the district court found Osborn failed to meet his burden of proof on his
ineffective-assistance claims and denied his application.
Osborn appeals. “We review ineffective-assistance-of-counsel claims de
novo.” State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
II. Analysis
“To succeed on a claim of ineffective assistance of counsel, a claimant must
establish by a preponderance of the evidence: ‘(1) his trial counsel failed to perform
an essential duty, and (2) this failure resulted in prejudice.’” Id. at 320 (quoting
State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012)). “[R]eversal is warranted only
where a claimant makes a showing of both of these elements.” Id. “If we conclude
a claimant has failed to establish either of these elements, we need not address
the remaining element.” Id.
Osborn’s first ineffective-assistance claim relates to Michaela’s testimony.
During the first trial, Michaela testified she was asleep in bed during the time in
question; however, she woke up around midnight and again at 3:00 a.m., and
Osborn was next to her in bed at both times. During the second trial, Michaela
testified she did not specifically remember waking up that night and was not aware
when Osborn was in bed with her. Osborn argues his trial counsel—although 4
pressing Michaela on cross examination—was ineffective for failing to object to
Michaela’s second-trial testimony as beyond the scope of the minutes of evidence.
The State is required to file minutes of evidence, which identify each
expected witness and provide “a full and fair statement of the witness’[s] expected
testimony.” Iowa R. Crim. P. 2.5(3). Under this rule, “there is no requirement that
the minutes of testimony provide a complete catalogue of witness testimony at trial,
but only that the defense be placed on fair notice and not subject to surprise
testimony.” State v. Shorter, 893 N.W.2d 65, 81 (Iowa 2017). “We generally will
not reverse on the ground of technical defects in procedure unless it appears in
some way to have prejudiced the complaining party or deprived him or her of full
opportunity to make defense to the charge presented in the indictment or
information.” State v. Braun, 495 N.W.2d 735, 741 (Iowa 1993).
The minutes of evidence here identify Michaela as a witness and generally
state she “will testify as to her actions, observations and recollections regarding
this incident.” Had Osborn objected to Michaela’s second-trial testimony as
beyond the minutes of evidence, he could not have shown the changes in her
testimony prejudiced him. During cross-examination at the second trial, Michaela
told Osborn’s trial counsel, “You had e-mailed me a couple months ago asking me
to review my testimony because you didn’t think my timing was correct. Upon
further consideration, I don’t feel confident in those times.” Thus, Osborn can
hardly claim surprise that Michaela backed off of her more specific testimony for
the second trial after his counsel specifically asked her to review her prior
testimony. Furthermore, the State during the second trial said it did not know
Michaela would back away from her earlier testimony, and Osborn provided no 5
evidence showing otherwise. See Shorter, 893 N.W.2d at 82–83 (finding a
witness’s deviation from the minutes of testimony did not prejudice the defendant
when the defendant “has not established that the prosecution had prior knowledge
that such testimony would be forthcoming”). Without a showing that the change in
Michaela’s testimony between the two trials deprived him of the opportunity to
defend against the charges, he cannot prove his trial counsel breached an
essential duty by failing to object to the Michaela’s testimony as beyond the
minutes of evidence.
Additionally, Osborn did not show any breach of duty caused him prejudice.
Osborn hoped Michaela’s testimony would corroborate his testimony that he was
in his own bed during the time in question. Excluding Michaela’s second-trial
testimony would not reinstate her first-trial testimony that Osborn was in their bed
at two separate times during the night at issue. Furthermore, the State had
considerable other evidence of Osborn’s guilt, including M.V.’s detailed testimony
about the sex acts. Also, voluminous text messages between Osborn and M.V.
were admitted at trial, which Osborn acknowledged became sexual in nature.
Because Osborn did not show his trial counsel breached an essential duty by
failing to object to Michaela’s testimony as beyond the minutes of evidence or that
prejudice resulted, his first ineffective-assistance claim fails.
Osborn’s second ineffective-assistance claim relates to the admission of the
criminal complaint and attached affidavit as an exhibit at trial. He argues his trial
counsel was ineffective for failing to object to the exhibit as hearsay. However,
Osborn’s trial counsel testified in a deposition that he did not object to the complaint
“so as not to draw attention to some of this stuff.” Thus, trial counsel’s decision to 6
not object to the criminal complaint was a reasonable trial strategy and not a
breach of duty. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006) (“[W]e
will not reverse where counsel has made a reasonable decision concerning trial
tactics and strategy, even if such judgments ultimately fail.” (quoting Brewer v.
State, 444 N.W.2d 77, 83 (Iowa 1989))).
Furthermore, Osborn did not show prejudice resulted from admission of the
complaint. As the district court found, the substance of the complaint largely
entered the record through witness testimony and other evidence. Because the
allegations in the complaint are cumulative to other evidence in the record, no
prejudice resulted from the admission of the complaint. See State v. Hildreth, 582
N.W.2d 167, 170 (Iowa 1998) (“We will not find prejudice if the admitted hearsay
is merely cumulative.”).
Osborn also appears to argue that the complaint is inadmissible evidence
of prior bad acts and that the cumulative effect of his trial counsel’s errors deprived
him of a fair trial. The PCR court did not rule on either of these arguments, so they
are not preserved for our review. See Lamasters v. State, 821 N.W.2d 856, 862
(Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide
them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).
III. Conclusion
Osborn failed to show ineffective assistance of counsel, as he failed to show
his trial counsel breached an essential duty or prejudice resulted. Therefore, we
affirm the district court’s denial of Osborn’s PCR application.