IN THE COURT OF APPEALS OF IOWA
No. 17-0435 Filed September 12, 2018
SESSIONS L. HARPER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice,
Judge.
Sessions Harper appeals the denial of his application for postconviction
relief. AFFIRMED.
Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, PC, Storm
Lake, for appellant.
Sessions L. Harper, Fort Madison, pro se.
Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. 2
MULLINS, Judge.
“Sessions Harper raped me, tied me up, and set my house on fire.” This
nontestimonial dying declaration1 by Holly Michael was a small piece of the
insurmountable evidence that led to Harper’s convictions of sexual abuse,
kidnapping, murder, and arson—all in the first degree. After the supreme court
affirmed Harper’s convictions on direct appeal, Harper filed an application for
postconviction relief (PCR), which was ultimately denied by the district court.
Harper appeals the denial of his PCR application. In addition to his various pro se
claims of ineffective assistance of counsel, he contends the district court erred in
concluding his trial counsel did not render ineffective assistance of counsel in
failing to object to an allegedly improper jury instruction on the crime of first-degree
kidnapping and abused its discretion in declining to admit certain evidence in the
PCR trial.
I. Background Facts and Proceedings
On the evening of Saturday, January 7, 2006, Holly Michael, Becky Sittig,
Ashleigh Attig, and Harper hung out at Michael’s house in Fort Dodge beginning
at around 7:00 or 8:00 p.m.2 From then until the early morning hours of January
8, the group drank alcohol, smoked marijuana, and consumed cocaine. The group
left the residence to go to a nearby bar at which they arrived around 1:00 a.m.
Video surveillance footage at the bar depicted Harper to have a shaved head and
wearing a black jacket with a hood. They drank at the bar until around 1:40 a.m.
then returned to Michael’s house, where they consumed more alcohol and drugs.
1 See generally Harper v. State, 770 N.W.2d 316 (Iowa 2009). 2 Michael shared the residence with her mother, Anita, who was out of town at the time. 3
At some point after the group returned from the bar, Attig and Harper engaged in
sexual intercourse on the floor in Michael’s bedroom.3 Attig testified, as was
normally the case when she and Harper engaged in intercourse, Harper did not
wear a condom.
Sittig, Attig, and Harper left Michael’s house around 4:30 a.m. and returned
to the home shared by Sittig and Attig. Sittig left the home to go to her mother’s
roughly ten minutes later. Harper left around the same time to retrieve something
from his residence, which was just around the corner. He returned a short time
later, dropped off the item he retrieved, and left again shortly thereafter. Harper
made eight phone calls from his cell phone to the Michael residence after he
departed from the party, at 4:28, 4:55, 4:58, 5:23, 5:32, 5:41, 5:42, and 6:35 a.m.
James and Michelle Leith live in the vicinity of the Michael residence. When
James arrived home from work at around 8:00 a.m. on January 8, he saw a car he
did not recognize parked in the street near his home, “a sporty-looking, red, four-
door” car with a rear spoiler. James took a second look at the vehicle after he got
out of his car and observed it to be an Oldsmobile. At about 9:10 a.m., as Michelle
was leaving home to take her children to Sunday school, she noticed the red car
parked in the street at the end of her driveway. When she returned about twenty
minutes later, the vehicle was still there. At this point, Michelle observed a
multicolored lei hanging from the car’s rearview mirror. The Leiths observed the
car drive away at around 9:40 a.m., but did not see who was driving it.
3 Harper and Attig were romantically involved prior to these events. The two share a child. 4
Joey McDowell, a neighbor of the Leiths, also lives in the vicinity of the
Michael residence. At around 8:00 a.m., McDowell observed a red car with a
“wing” on the back parked on the street near her home. At about 9:30 or 9:40 a.m.,
McDowell looked out her front window and observed an African American male
with a shaved head wearing a jacket with a hoodie underneath get in the car and
drive away.
At or around 9:45 a.m., passers-by observed Michael’s home to be on fire
and called 911. Upon their arrival, firefighters entered the home to search for any
occupants. After searching the main level, firefighters opened the basement door,
which was initially blocked with a piece of furniture, and heard screaming. In the
basement, firefighters found Michael lying face down on the floor, wrapped in a
burning comforter, with her arms and legs bound with wire. Michael was
transported from the basement to an ambulance on the scene. When placed in
the ambulance, a paramedic poured saline on Michael to extinguish the smoldering
materials attached to her body. The paramedic observed Michael was not wearing
any clothing and had gray duct tape and brown telephone wire on her right wrist.
When Michael arrived in the emergency room, an x-ray technician heard
Michael say, “Harper did it, Harper did it.” A respiratory therapist heard Michael
say, “Don’t let him hurt me.” Dr. Daniel Cole asked Michael what happened to her.
Michael responded Sessions Harper raped her, tied her up, and set her house on
fire. Dr. Cole asked Michael to repeat what she said, and Michael again stated
Sessions Harper raped her, tied her up, and set her house on fire. Dr. Elizabeth
Day questioned Michael if she knew who had done this to her. Michael responded,
“Sessions Harper” and specified, “He tied me up, raped me, and left me in the 5
basement.” Dr. Dan Warlick heard Michael state Sessions Harper raped her, tied
her up, and set her house on fire. Due to the severity of her injuries, Michael was
airlifted to Iowa City. When Michael’s mother visited her in the hospital, Michael
mouthed the word “Sessions” over and over again from her hospital bed. Michael
suffered third- and fourth-degree burns to sixty percent of her body, some to the
bone, and her arms had to be amputated. Michael ultimately died as a result of
her injuries.
The day after the fire, McDowell read the newspaper, which included a
written description and picture of Harper in connection with the fire at the Michael
residence. McDowell thought the person she saw with the red car parked on the
street near her home might have been Harper. McDowell approached James
Leith, and the two spoke about their observations the previous morning. As a
result of that discussion, James called the police.
Upon investigation of the scene, it was discovered that all of the smoke
detectors in the home had been disabled. In the basement of the home, law
enforcement found charred terry cloth on the floor, a gasoline can containing a
small amount of gasoline with a charred paper towel wick sticking out of the top,
and a container that would normally contain paint thinner. Subsequent forensic
analysis of the gasoline can confirmed it contained gasoline. Testing of the other
container revealed it contained a small amount of medium petroleum product, such
as paint thinner. Michael’s mother, Anita, who owned the residence and lived in it
with Michael, testified the paint thinner was from her garage and she would never
bring it into the home when she used it. Anita also testified the gasoline can did
not belong to her and she had never seen it before. 6
The charred comforter Michael was wrapped in when she was found was
located in the middle of the basement floor. Upon examination, a special agent
with the State Fire Marshal’s Office detected a relatively strong odor of gasoline
and paint thinner on the comforter. A forensic analysis of the comforter revealed
the presence of a mixture of gasoline and a medium petroleum product, such as
paint thinner, both of which are fire accelerants or “ignitable liquids.” Near the
comforter, law enforcement found a roll of duct tape and telephone wire. The
telephone cords initially attached to the rafters of the basement ceiling had been
torn out and were dangling from the ceiling. A pair of sunglasses found in the
basement near where Michael was found were submitted to the State crime lab for
fingerprint and DNA analysis. Harper’s fingerprints and DNA were found on the
sunglasses. The gas-powered water heater in the basement had been moved to
an extent that the gas flue that would normally exhaust gas vapors from the home
was disconnected from the water heater.
Michael’s bedroom and its contents suffered extensive fire damage. The
mattress and box spring comprising Michael’s bed were placed in front of the two
windows in Michael’s room, presumably to block any view of the fire from outside
the residence. A fire also occurred in the master bedroom on the other side of the
home. The special agent testified the fires were unrelated and had completely
separate origins, thus leading him to believe that each of the separate fires was
intentionally set. Furthermore, the gas stove in the kitchen had been tipped over,
the control knobs on the stove were in the on position, and a candle was placed
underneath the stove. All in all, the fire investigator testified there were five
separate origins of the fire—the master bedroom, Michael’s bedroom, the gasoline 7
can in the basement, the comforter Michael was wrapped in, and the area of the
gas stove—all of which were intentionally set.
Law enforcement found a used condom in Michael’s bedroom containing
Harper’s DNA on the inside and Michael’s DNA on the outside. Black zip-ties were
also found in Michael’s bedroom. Matching zip-ties were found in Harper’s home
pursuant to a search warrant. The plant manager of Harper’s employer testified
the same zip-ties were used at the business and Harper had access to them.
Law enforcement also seized a red Oldsmobile Alero belonging to Harper’s
wife and known to be driven frequently by Harper. The seized Alero had a rear
spoiler and a Hawaiian lei hanging from the rearview mirror. Several witnesses
testified Harper was known to drive a red Alero with these characteristics. When
shown pictures of the seized car at trial, McDowell and the Leiths generally testified
it appeared to be the car that was in their neighborhood the morning of the fire.
Upon a search of the vehicle, law enforcement found documents bearing Harper’s
name.
A number of individuals close to Harper at the time of these events testified
they were unable to reach Harper on his cell phone the morning of the fire and
thereafter. Harper did not show up for work the day after the fire and did not
provide his employer with a reason for his absence. Harper was ultimately
apprehended by law enforcement in Des Moines in the early morning hours of
January 11. Photographs taken by law enforcement of Harper’s person depict
scratches or scarring on both of his hands and his face, an open wound on his
right knee, and scabbing on his left knee. 8
Harper was charged by trial information with first-degree sexual abuse,
kidnapping, murder, and arson. A jury found Harper guilty as charged. In June
2009, shortly after the supreme court affirmed his convictions, Harper filed a PCR
application generally alleging ineffective assistance of his trial and appellate
counsel. Over the course of the next seven and a half years, Harper specified his
ineffective-assistance claims by way of multiple supplemental or amended filings.
In February 2017, the district court denied Harper’s application. Harper appeals.
Additional facts will be set forth below as are relevant to the issues raised on
appeal.
II. Standard of Review
Appellate review of PCR proceedings is typically for correction of errors at
law, but where claims of ineffective assistance of counsel are forwarded, our
review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). Harper
must prove by a preponderance of the evidence that (1) his trial or appellate
counsel failed to perform an essential duty and (2) prejudice resulted. Strickland
v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116
(Iowa 2018). We “may consider either the prejudice prong or breach of duty first,
and failure to find either one will preclude relief.” State v. McNeal, 897 N.W.2d
697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).
A failure to register meritless arguments does not amount to ineffective assistance
of counsel. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).
Rulings on the admission of evidence are reviewed for an abuse of
discretion, our most deferential standard of review. State v. Dentler, 742 N.W.2d
84, 87 (Iowa 2007); see State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017). 9
III. Analysis
A. Pro Se Claims of Ineffective Assistance of Counsel
1. Serious Injury
The first few pro se contentions are relative to the serious-injury element of
Harper’s conviction of first-degree sexual abuse. First, Harper contends his trial
or appellate counsel was ineffective in failing to challenge the district court’s
“overbroad definition” of serious injury. Sessions acknowledges the propriety of
the court’s definition of the third element of the crime—“During the commission of
sexual abuse, the Defendant caused [the victim] a serious injury,” see Iowa Code
§ 709.2 (2006)—but challenges the following related instruction provided by the
district court:
Concerning Element No. 3 of [first-degree sexual abuse], the serious injury need not occur simultaneously with the commission of the sexual abuse, but may precede or follow it if the injury and the sexual abuse occur as part of an unbroken chain of events or as part of one continuous series or acts connected with one another.
We find this instruction to be a correct statement of the law and conclude trial and
appellate counsel were under no duty to challenge it. See State v. Carter, 602
N.W.2d 818, 822 (Iowa 1999) (“We hold that under Iowa Code section 709.2 the
serious injury need not occur simultaneously with the commission of the sexual
abuse in order to constitute first-degree sexual abuse under Iowa Code section
709.2. It is sufficient if the serious injury precedes or follows the sexual abuse as
long as the injury and sexual abuse occur as part of an unbroken chain of events
or as part of one continuous series of acts connected with one another.”).
Next, Harper contends trial and appellate counsel were ineffective in failing
to challenge the sufficiency of the evidence concerning the serious-injury element 10
of the crime. However, this argument is premised on Harper’s erroneous challenge
to the jury instruction discussed above, as he only argues there was insufficient
evidence “that a serious injury was cause[d] during the commission of a sexual
abuse.” As noted, “the serious injury need not occur simultaneously with the
commission of the sexual abuse.” Id. To the extent Harper challenges the
sufficiency of the evidence to show the serious injury occurred as part of an
unbroken chain of events or as part of a continuous series of acts connected with
one another, upon our de novo review and viewing the evidence in the light most
favorable to the State and the verdict, including all reasonable inferences, we
conclude the serious-injury element was supported by substantial evidence and
trial and appellate counsel were therefore under no duty to challenge the same.
See State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (noting the evidence in
sufficiency-of-the-evidence challenges is viewed “in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence”); see also State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (“[W]e will
uphold a verdict if substantial evidence supports it. Evidence is substantial if, when
viewed in the light most favorable to the State, it can convince a rational jury that
the defendant is guilty beyond a reasonable doubt.” (citation and internal quotation
marks omitted)). Indeed, Harper appears to concede this, as he acknowledges
the “jury could find . . . the victim suffered a serious injury at sometime,” and only
argues the evidence was insufficient to show the serious injury was inflicted literally
simultaneously with the act of sexual abuse. 11
2. Second-Degree-Kidnapping Instruction
Next, Harper claims his trial and appellate counsel rendered ineffective
assistance in failing to object to the district court’s failure to instruct the jury on the
offense of second-degree kidnapping in addition to the offense of first-degree
kidnapping. See Iowa R. Crim. P. 2.6(3) (“In cases where the public offense
charged may include some lesser offense it is the duty of the trial court to instruct
the jury, not only as to the public offense charged but as to all lesser offenses of
which the accused might be found guilty under the indictment and upon the
evidence adduced, even though such instructions have not been requested.”).
Generally, trial courts in Iowa are required to “automatically instruct on a lesser-
included offense if the legal test is met as to a greater offense that has support in
the evidence.” State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988).
[U]nder the legal test the lesser offense is necessarily included in the greater offense if it is impossible to commit the greater offense without also committing the lesser offense. If the lesser offense contains an element not required for the greater offense, the lesser offense cannot be included in the greater. This is because it would be possible in that situation to commit the greater without also having committed the lesser. In using this test, we look to the statutory elements rather than to the charge or the evidence.
Id. at 740 (citations omitted). Kidnapping in the second degree requires proof that
either “the purpose is to hold the victim for ransom” or “the kidnapper is armed with
a dangerous weapon.” Iowa Code § 710.3. Kidnapping in the first degree does
not include either of these alternatives as an element of the crime. See id. § 710.2.
As such, it is not impossible to commit first-degree kidnapping without also
committing second-degree kidnapping. See Jeffries, 430 N.W.2d at 740.
Accordingly, the court was not required to instruct the jury on the elements of 12
kidnapping in the second degree and, in turn, trial and appellate counsel were
under no duty to raise the issue.
3. Confinement or Removal—Sufficiency of the Evidence
Next, Harper appears to argue trial and appellate counsel were ineffective
in failing to effectively challenge the sufficiency of the evidence concerning the
confinement or removal element of first-degree kidnapping. When assessing the
sufficiency of the evidence to support a conviction, the court views “the evidence
‘in the light most favorable to the State, including all reasonable inferences that
may be fairly drawn from the evidence.’” Ortiz, 905 N.W.2d at 180 (quoting State
v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is considered, not just
that of an inculpatory nature. See Huser, 894 N.W.2d at 490. “[W]e will uphold a
verdict if substantial evidence supports it.” Wickes, 910 N.W.2d 554, 563 (Iowa
2018). “Evidence is substantial if, ‘when viewed in the light most favorable to the
State, it can convince a rational jury that the defendant is guilty beyond a
reasonable doubt.’” Id. (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa
2017)). If the record contains substantial evidence to support the conviction,
counsels’ failure to raise the issue could not have been prejudicial. See State v.
Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).
In support of this contention, Harper provides his slanted version of the
evidence and a wealth of conclusory statements in support of his position. He
provides us with no on-point legal authority to support his position other than a
passive citation to State v. Rich, in which the supreme court stated:
[O]ur legislature . . . intended the terms “confines” and “removes” to require more than the confinement or removal that is an inherent 13
incident of commission of [some other crime].[4] Although no minimum period of confinement or distance of removal is required for conviction of kidnapping, the confinement or removal must definitely exceed that normally incidental to the commission of [the other crime]. Such confinement or removal must be more than slight, inconsequential, or an incident inherent in the [other] crime . . . so that it has a significance independent from [the other crime]. Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense.
305 N.W.2d 739, 745 (Iowa 1981) (emphasis added).
A de novo review of the record evidence reveals the following. After leaving
the party at the Michael residence at 4:30 a.m. on January 8, Harper returned to
the home and gained entry, likely sometime after his final call to the Michael
residence at 6:35 a.m. The sequence of events that occurred in the home as
provided by Michael was that Harper raped her, tied her up, and then set the house
on fire. The fact that Michael’s jeans and the used condom containing both
Michael’s and Harper’s DNA were found in Michael’s bedroom indicates the sexual
assault occurred in Michael’s bedroom. The act of tying Michael up occurred
thereafter in the basement of the home, an area more secluded than the main floor,
as is evidenced by the fact that Michael was bound with telephone wire and duct
tape, both of which were found in the basement, the telephone wire having been
torn from the beams in the ceiling of the basement. Harper then engaged in
several deliberate steps relative to starting the fire, concealing its detection, and
facilitating his escape. Of course, it would be impossible to determine from the
4 See State v. Misner, 410 N.W.2d 216, 223 (Iowa 1987) (concluding “the Rich principles prevent kidnapping charges from being prosecuted” in cases “in which a person is moved or confined wholly as part of a murder, sexual abuse, or other crime” (emphasis added)). 14
evidence in what order the steps were taken, but the evidence reveals the following
steps were taken by Harper while Michael was bound and confined in the
basement: (1) disabling the smoke detectors in the home; (2) retrieving the
gasoline can that was foreign to the home; (3) retrieving the petroleum product
from the garage of the home; (4) wrapping Michael in the comforter; (5) separately
pouring gasoline and the petroleum product on the comforter; (6) igniting the
comforter; (7) inserting a paper towel wick in the gasoline can and lighting the end
to create a delayed explosion; (8) dislodging the gas flue on the gas-powered water
heater in the basement; (9) placing a piece of furniture in front of the basement
door after he finished his activities in the basement; (10) positioning the mattress
and box spring in Michael’s bedroom in front of the bedroom windows; (11)
intentionally starting an independent fire in Michael’s bedroom; (12) intentionally
starting an independent fire in the master bedroom; and (13) overturning the gas
stove in the kitchen, turning the control knobs to the on position, and placing a
candle under the stove. Harper then left the Michael residence around 9:30 a.m.,
got into the nearby Oldsmobile Alero, and left the area. Harper then left Fort Dodge
and was in Des Moines by mid-day.
Although a majority of the steps taken by Harper were relative to starting
the fires that resulted in Michael’s death, some of the steps taken were aimed at
decreasing the risk of detection and facilitating Harper’s escape. For example,
after the sexual assault, Harper moved Michael to the basement of the home, a
more secluded area than the main floor, and tied her up so she could not get away.
See State v. Robinson, 859 N.W.2d 464, 479 (Iowa 2015) (noting Iowa case law
emphasizes that binding the victim usually exceeds confinement ordinarily 15
incidental to another crime); State v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997)
(finding that confining a victim by ordering her to take off her clothes so she could
not leave a motel room lowered the defendant’s chance of detection and increased
the risk of harm to the victim); State v. McGrew, 515 N.W.2d 36, 40 (Iowa 1994)
(finding the secluded location the defendant used in confining the victim for the
purpose of sexual abuse “not only lessened the risk of detection for McGrew, but
also further increased the risk of harm to the victim”); State v. Folck, 325 N.W.2d
368, 371 (Iowa 1982) (“She was taken to a secluded spot where detection was
unlikely. The remoteness of the place . . . substantially increased the risk of harm
if she fought to defend herself or to escape.”); Rich, 305 N.W.2d at 745–46 (finding
sufficient evidence for confinement or removal upon the facts that defendant,
among other things, took victim to a more secluded area and bound the victim’s
hands).
Furthermore, Michael’s confinement in the basement provided Harper with
the ability to take his time. With this ability, Harper disabled the smoke detectors
in the home, thus preventing the likelihood that someone nearby could detect the
fire before it came to full fruition; positioned the mattress and box spring in
Michael’s bedroom in front of the bedroom windows, presumably so a passer-by
could not see into that room where one of the fires was started; and placed a piece
of furniture in front of the door to the basement, obviously to further prevent
Michael’s escape or prevent someone from opening the door and detecting her
presence. Based on the totality of the circumstances, a jury could have reasonably
concluded Harper’s confinement had independent significance from the murder
because it significantly lessened the risk of detection. In addition, but for the 16
confinement, Michael would not have been in the basement when the house was
set ablaze. A jury could have reasonably concluded the confinement substantially
increased the risk of harm to Michael. Finally, Michael’s confinement in the
basement provided Harper with the ability to not only flee the scene, but to
additionally flee the area and evade apprehension by law enforcement for almost
three days. A jury could have reasonably concluded Michael’s confinement
significantly facilitated Harper’s escape.
Upon our de novo review, we conclude there was sufficient evidence for the
jury to reasonably conclude that Harper’s confinement of Michael substantially
increased the risk of harm to Michael, significantly decreased the risk of detection,
or significantly facilitated Harper’s escape following the consummation of the
offense. Because the record contains substantial evidence to support the
challenged element of the kidnapping conviction, trial and appellate counsels’
failures to raise the issue did not result in prejudice to Harper. See Truesdell, 679
N.W.2d at 616. Counsel were not ineffective.
4. Remaining Pro Se Claims
As to Harper’s remaining challenges relating to counsel’s competency as to
various other jury instructions, we find such arguments generally incoherent,
lacking in specificity, unconvincing, and insufficient to identify error on appeal.
Likewise, Harper’s challenge to the kidnapping statutes as in violation of
constitutional ex post facto prohibitions drastically misses the mark. As to these
remaining claims, we agree with the district court that Harper failed to prove by a
preponderance of the evidence that his counsel failed to perform an essential duty
or that he suffered prejudice. 17
B. First-Degree-Kidnapping Marshalling Instruction
Harper argues the district court erred in concluding his trial counsel did not
render ineffective assistance of counsel in failing to object to an allegedly improper
jury instruction on the crime of kidnapping. He specifically argues his counsel was
ineffective in failing to recognize the kidnapping instruction did not “include the
required intensifiers relative to the element of confinement and removal” and was
therefore an incorrect statement of the law. See Rich, 305 N.W.2d at 745.
1. Statute of Limitations
The State argues Harper failed to raise this argument in the district court
within the statutory limitations period contained in Iowa Code section 822.3 (2009).
The State points out procedendo issued in March 2009 following Harper’s direct
appeal, Harper’s original PCR application filed in June 2009 did not raise this
specific issue, and the argument was not made in the PCR court until an amended
application was filed in August 2015, outside the three-year statute-of-limitations
period. Indeed, in a December 2015 ruling on Harper’s motion for summary
judgment, the district court entered a ruling in accordance with the State’s position
on appeal, finding the claim is “untimely and not exempt from the three year statute
of limitations.” However, the court went on to minimally address the merits of the
ineffective-assistance claim in denying Harper’s motion for summary judgment. In
the February 2017 order denying Harper’s PCR application, the district court
incorporated its December 2015 ruling on this issue by reference.
As Harper points out, however, the State never raised the statute-of-
limitations issue as an affirmative defense in its responsive pleading to the
amended application or at any other point in time during the proceedings. Instead, 18
it appears the district court applied it sua sponte. Because the statute-of-limitations
defense was not raised by the State, it should not have been applied to preclude
the claim. See, e.g., Page v. State, No. 14-1842, 2016 WL 719243, at *2 (Iowa Ct.
App. Feb. 24, 2016); Reyna v. State, No. 13-0126, 2014 WL 1234142, at *2 (Iowa
Ct. App. Mar. 26, 2014). We proceed to the merits.
2. Merits
As noted, Harper contends his counsel was ineffective in failing to recognize
the kidnapping instruction did not “include the required intensifiers relative to the
element of confinement and removal” and was therefore an incorrect statement of
the law. On the element of confinement and removal, the jury in Harper’s 2007
trial was instructed as follows:
Confinement or removal requires more than what is included in the commission of the crime of murder. A person is “confined” when their freedom to move about is substantially restricted by force, threat or deception. They may be confined either in the place where the restriction began or in a place to which they have been removed. No minimum time of confinement or distance of removal is required. It must be more than slight. The confinement or removal must have significance apart from the other crime. In determining whether confinement or removal exists, you may consider whether (1) the risk of harm to Holly Michael was increased, (2) the risk of detection was reduced, or (3) escape was made easier.
As fully quoted above, the supreme court has held:
[O]ur legislature, in enacting section 710.1, intended the terms “confines” and “removes” to require more than the confinement or removal that is an inherent incident of commission of [some other crime]. Although no minimum period of confinement or distance of removal is required for conviction of kidnapping, the confinement or removal must definitely exceed that normally incidental to the commission of [the other crime]. Such confinement or removal must be more than slight, inconsequential, or an incident inherent in the [other] crime . . . so that it has a significance independent from sexual 19
abuse. Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense.
Rich, 305 N.W.2d at 745 (emphasis added). In support of his argument that
counsel was ineffective in failing to object to the instruction’s lack of the Rich
intensifiers—substantially and significantly—Harper relies on a concurring opinion
in State v. Robinson, 859 N.W.2d 464, 487–492 (Iowa 2015) (Wiggins, J.,
concurring specially).
Roughly eight years after Harper’s conviction, the supreme court decided
Robinson, a case in which the defendant challenged a jury instruction nearly
identical to the one employed in Harper’s trial. See Robinson, 859 N.W.2d at 487
(Wiggins, J., concurring specially). The majority reversed Robinson’s first-degree
kidnapping charge on sufficiency-of-the-evidence grounds, viewing the jury
instructions as the law of the case. Id. at 482. One justice wrote separately and
asserted the confinement and removal instruction’s failure to include the Rich
intensifiers amounted to reversible error and a challenge to such a jury instruction
by trial counsel “was a claim worth raising.” Id. at 487, 492 (Wiggins, J., concurring
specially). On the issue of prejudice for a claim of ineffective assistance of counsel,
however, the special concurrence recognized that, notwithstanding the lack of the
intensifying language, “in some cases the evidence clearly establishes the
prerequisites for kidnapping independent of the underlying crimes.” See id. at 492.
We deem this to be one of those cases. In order to establish the prejudice prong
of an ineffective-assistance claim, a defendant is required to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of 20
the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “[T]he question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695.
Upon our de novo review of the record, we answer that question in the
negative. Assuming without deciding trial counsel had a duty to object to the
instruction without the intensifiers, we cannot say Harper suffered prejudice. We
find no reasonable probability the jury would have returned a not-guilty verdict on
the first-degree kidnapping charge had the intensifiers been included in the
instruction. Accordingly, counsel was not ineffective in not challenging the jury
instruction for want of the Rich intensifiers.
C. Admission of Exhibits
At the PCR trial, Harper requested the admission of a number of pro se
exhibits. The State objected to the admission of the exhibits on relevance grounds,
contending the exhibits were not relevant to the issues raised in the PCR
proceedings. The district court agreed with the State. Thereafter, Harper
attempted but was unable to coherently explain how the exhibits were relevant to
the pending PCR issues. The court stood by its ruling excluding the exhibits on
relevance grounds. We find the district court did not exercise its discretion on
grounds clearly untenable or to an extent clearly unreasonable and affirm its ruling.
IV. Conclusion
We affirm the denial of Harper’s PCR application.
AFFIRMED.