IN THE COURT OF APPEALS OF IOWA
No. 4-005 / 12-1355 Filed March 26, 2014
MICHAEL LEONARD WHITWORTH, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, Martha L. Mertz,
Judge.
A postconviction-relief applicant appeals, claiming his trial attorneys
provided ineffective assistance by failing to file a notice to offer evidence of an
alleged prior sexual relationship with the victim. AFFIRMED.
John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, Ed Bull, County Attorney for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ. 2
BOWER, J.
Michael Whitworth appeals the postconviction court’s denial of his
application for postconviction relief, following his convictions for first-degree
kidnapping and third-degree sexual abuse. Whitworth claims his trial attorneys
provided ineffective assistance by failing to file a notice to offer evidence of an
alleged prior sexual relationship with the victim. See Iowa R. Evid. 5.412(c).
Had this notice been filed and such evidence been approved by the trial court,
Whitworth claims he would have testified in his own defense and the outcome of
his trial would have been different. After our de novo review, we conclude
Whitworth has failed to prove he was prejudiced by counsels’ inaction.
Accordingly, we affirm.
I. Background Facts and Proceedings.
From the evening of October 12 through the evening of October 13, 2005,
Whitworth confined the victim—first in her own apartment, then in his apartment,
and finally back in her own apartment. He left once she fell asleep. Over the
course of the confinement, Whitworth brutally beat the victim and committed
multiple sexual assaults. Once the victim awoke in the early morning hours of
October 14, she ran to her parents’ home. The victim and her parents called the
police and documented her injuries. The police also photographed blood
spatters in the victim’s bedroom, which tested positive for her blood. When
Whitworth was arrested by police, they photographed a small cut on his right
knuckle. Whitworth claimed the cut resulted from an earlier fight, which was
unrelated to the victim. 3
Counsel was appointed to represent Whitworth in the criminal trial. While
his attorneys filed a notice of intent to offer evidence of the victim’s sexual
behavior with persons other than Whitworth, counsel did not file a notice of intent
to offer evidence of a past alleged sexual relationship between the victim and
Whitworth. At trial, the victim testified to her injuries and described the sexual
assaults she endured. Photographs of her injuries were admitted. She stated
that while she was previously friends with Whitworth, at no point did she have a
romantic or sexual relationship with him. Defense counsel “vigorously” cross-
examined the victim in an effort to get her to admit that she consented to the sex
acts, but counsels’ efforts proved unsuccessful. See State v. Whitworth, No. 06-
0809, 2007 WL 2963961, at *1 (Iowa Ct. App. Oct. 12, 2007). Defense counsel
also called a number of witnesses to testify to the victim’s relationships, but the
district court did not allow evidence of the victim’s past sexual history.
The jury returned guilty verdicts. At sentencing, the court merged the
third-degree sexual abuse conviction into the first-degree kidnapping conviction
and sentenced Whitworth to life in prison without the possibility of parole.
Whitworth appealed, claiming it was error for the district court to exclude
the evidence of the victim’s past sexual history. See id. Our court affirmed the
district court, concluding such evidence was irrelevant. Id. at *2 (quoting State v.
Kraker, 494 N.W.2d 687, 689 (Iowa 1993) (“Consent to a sex act with one person
does not imply consent to a sex act with another person.”)).
Whitworth’s postconviction application claimed, among other things, that
counsel was ineffective for failing to file a notice of intent to offer evidence of the 4
victim’s alleged sexual relationship with him. Both of Whitworth’s trial attorneys
testified at the postconviction hearing. Both affirmed they advised Whitworth not
to testify because they had concerns about how he would present himself to the
jury. One attorney acknowledged he was aware of Whitworth’s claim he had a
prior sexual relationship with the victim but noted there was no way to get this
information into the record without Whitworth’s testimony, unless the victim would
admit the relationship.
The postconviction court’s ruling noted, even if his attorneys had filed the
required notice, Whitworth had no assurance the trial court would have allowed
him to testify to a previous sexual relationship with the victim. The postconviction
court concluded Whitworth’s previous-sexual-encounter claims were self-serving,
uncorroborated, and the testimony’s nominal relevance was outweighed by the
potential prejudicial effects. The postconviction court also concluded, even if the
trial court had allowed Whitworth to testify regarding a previous sexual
relationship with the victim, such testimony would not have changed the outcome
of the trial because the evidence, particularly the evidence of the victim’s injuries,
strongly supported the conclusion the victim did not consent.
Whitworth appeals.
II. Scope and Standard of Review.
We review de novo. See State v. Robinson, 841 N.W.2d 615, 617 (Iowa
Ct. App. 2013). In order to prove counsel was ineffective, Whitworth must show
(1) counsel failed to perform an essential duty, and (2) he suffered prejudice as a
result of counsels’ failure. See id. Whitworth must prove both elements to be 5
successful, and we need not address the duty prong if we can resolve the claim
on the prejudice prong. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). To establish prejudice, Whitworth must show “there is a reasonable
probability that, but for counsels’ unprofessional errors, the result of the
proceeding would have been different.” See id. at 143. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
III. Ineffective Assistance of Counsel.
Iowa Rule of Evidence 5.412 provides in part:
a. Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim . . . is not admissible. b. Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence is either of the following: (1) Admitted in accordance with rules 5.412(c)(1) and 5.412(c)(2) and is constitutionally required to be admitted.
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IN THE COURT OF APPEALS OF IOWA
No. 4-005 / 12-1355 Filed March 26, 2014
MICHAEL LEONARD WHITWORTH, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, Martha L. Mertz,
Judge.
A postconviction-relief applicant appeals, claiming his trial attorneys
provided ineffective assistance by failing to file a notice to offer evidence of an
alleged prior sexual relationship with the victim. AFFIRMED.
John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, Ed Bull, County Attorney for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ. 2
BOWER, J.
Michael Whitworth appeals the postconviction court’s denial of his
application for postconviction relief, following his convictions for first-degree
kidnapping and third-degree sexual abuse. Whitworth claims his trial attorneys
provided ineffective assistance by failing to file a notice to offer evidence of an
alleged prior sexual relationship with the victim. See Iowa R. Evid. 5.412(c).
Had this notice been filed and such evidence been approved by the trial court,
Whitworth claims he would have testified in his own defense and the outcome of
his trial would have been different. After our de novo review, we conclude
Whitworth has failed to prove he was prejudiced by counsels’ inaction.
Accordingly, we affirm.
I. Background Facts and Proceedings.
From the evening of October 12 through the evening of October 13, 2005,
Whitworth confined the victim—first in her own apartment, then in his apartment,
and finally back in her own apartment. He left once she fell asleep. Over the
course of the confinement, Whitworth brutally beat the victim and committed
multiple sexual assaults. Once the victim awoke in the early morning hours of
October 14, she ran to her parents’ home. The victim and her parents called the
police and documented her injuries. The police also photographed blood
spatters in the victim’s bedroom, which tested positive for her blood. When
Whitworth was arrested by police, they photographed a small cut on his right
knuckle. Whitworth claimed the cut resulted from an earlier fight, which was
unrelated to the victim. 3
Counsel was appointed to represent Whitworth in the criminal trial. While
his attorneys filed a notice of intent to offer evidence of the victim’s sexual
behavior with persons other than Whitworth, counsel did not file a notice of intent
to offer evidence of a past alleged sexual relationship between the victim and
Whitworth. At trial, the victim testified to her injuries and described the sexual
assaults she endured. Photographs of her injuries were admitted. She stated
that while she was previously friends with Whitworth, at no point did she have a
romantic or sexual relationship with him. Defense counsel “vigorously” cross-
examined the victim in an effort to get her to admit that she consented to the sex
acts, but counsels’ efforts proved unsuccessful. See State v. Whitworth, No. 06-
0809, 2007 WL 2963961, at *1 (Iowa Ct. App. Oct. 12, 2007). Defense counsel
also called a number of witnesses to testify to the victim’s relationships, but the
district court did not allow evidence of the victim’s past sexual history.
The jury returned guilty verdicts. At sentencing, the court merged the
third-degree sexual abuse conviction into the first-degree kidnapping conviction
and sentenced Whitworth to life in prison without the possibility of parole.
Whitworth appealed, claiming it was error for the district court to exclude
the evidence of the victim’s past sexual history. See id. Our court affirmed the
district court, concluding such evidence was irrelevant. Id. at *2 (quoting State v.
Kraker, 494 N.W.2d 687, 689 (Iowa 1993) (“Consent to a sex act with one person
does not imply consent to a sex act with another person.”)).
Whitworth’s postconviction application claimed, among other things, that
counsel was ineffective for failing to file a notice of intent to offer evidence of the 4
victim’s alleged sexual relationship with him. Both of Whitworth’s trial attorneys
testified at the postconviction hearing. Both affirmed they advised Whitworth not
to testify because they had concerns about how he would present himself to the
jury. One attorney acknowledged he was aware of Whitworth’s claim he had a
prior sexual relationship with the victim but noted there was no way to get this
information into the record without Whitworth’s testimony, unless the victim would
admit the relationship.
The postconviction court’s ruling noted, even if his attorneys had filed the
required notice, Whitworth had no assurance the trial court would have allowed
him to testify to a previous sexual relationship with the victim. The postconviction
court concluded Whitworth’s previous-sexual-encounter claims were self-serving,
uncorroborated, and the testimony’s nominal relevance was outweighed by the
potential prejudicial effects. The postconviction court also concluded, even if the
trial court had allowed Whitworth to testify regarding a previous sexual
relationship with the victim, such testimony would not have changed the outcome
of the trial because the evidence, particularly the evidence of the victim’s injuries,
strongly supported the conclusion the victim did not consent.
Whitworth appeals.
II. Scope and Standard of Review.
We review de novo. See State v. Robinson, 841 N.W.2d 615, 617 (Iowa
Ct. App. 2013). In order to prove counsel was ineffective, Whitworth must show
(1) counsel failed to perform an essential duty, and (2) he suffered prejudice as a
result of counsels’ failure. See id. Whitworth must prove both elements to be 5
successful, and we need not address the duty prong if we can resolve the claim
on the prejudice prong. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). To establish prejudice, Whitworth must show “there is a reasonable
probability that, but for counsels’ unprofessional errors, the result of the
proceeding would have been different.” See id. at 143. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
III. Ineffective Assistance of Counsel.
Iowa Rule of Evidence 5.412 provides in part:
a. Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim . . . is not admissible. b. Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence is either of the following: (1) Admitted in accordance with rules 5.412(c)(1) and 5.412(c)(2) and is constitutionally required to be admitted. (2) Admitted in accordance with rule 5.412(c) and is evidence of either of the following: (A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury. (B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which sexual abuse is alleged.
The rule also sets out the procedural hurdles a defendant must go through in
order to obtain the district court’s approval to admit evidence of a victim’s past
sexual behavior, including filing a motion with a written offer of proof to the court
no later than fifteen days before trial. See Iowa R. Evid. 5.412(c)(1)–(3). In order 6
to determine the admissibility of the evidence, the court is to hear the evidence in
chambers. Id. In its ruling, the court must determine whether the evidence is
relevant and whether the probative value of the evidence outweighs the danger
of unfair prejudice.
Irrespective of (1) whether the trial attorneys herein should have filed the
required notice and (2) whether the court herein would have granted the request,
we conclude Whitworth cannot show there is a reasonable probability the result
of the trial would have been different if he had testified regarding his alleged past
sexual history with the victim. The State’s case was strong, and the “most
important factor under the test for prejudice is the strength of the State’s case.”
State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006).
The evidence Whitworth claims should have been admitted is only
relevant to the issue of the victim’s consent to the sexual acts. As noted by the
postconviction court, the other evidence at trial strongly supported the conclusion
the victim did not consent to sexual acts with Whitworth. The extensive injuries
she sustained (a black eye, a cut and swollen lip, bruising to her cheeks and
forehead, bruising and scratches on her neck, bruising and abrasions on her
back, and bruising on her arm and inner thigh) are particularly significant.
Additionally, the police observed and documented blood spatter in the victim’s
bedroom in the location where she claimed the beating occurred, and Whitworth
had an injury on his right knuckle, although Whitworth disputed the source of this
injury. Whitworth’s proposed testimony—he had previously had consensual sex 7
with the victim—is not sufficient to undermine our confidence in the jury’s
conclusion.
Because Whitworth failed to prove the prejudice prong of his ineffective-
assistance-of-counsel claim, we affirm.
AFFIRMED.