Larry Twigg, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0395
Filed January 11, 2017
LARRY TWIGG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
Larry Twigg appeals from the denial of his application for postconviction
relief from his five convictions of lascivious acts with a minor. AFFIRMED.
John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Potterfield, P.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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POTTERFIELD, Presiding Judge.
Larry Twigg appeals from the district court’s denial of his application for
postconviction relief (PCR) stemming from his five convictions of lascivious acts
with a minor, in violation of Iowa Code section 709.14 (2009). On appeal, Twigg
maintains the district erred in failing to find his second trial counsel ineffective for
not obtaining for use at trial an interview transcript or alternatively, in failing to
find that his postconvictio- relief counsel was ineffective for not obtaining a copy
of the transcript. Additionally, he contends the trial court erred in ruling his
second trial counsel did not provide ineffective representation in presenting
Twigg’s defense his conduct was “weird behavior” rather than “sexual behavior.”
After careful consideration, we affirm the district court.
I. Background Facts and Proceedings.
Twigg worked as a high school teacher in Waterloo. Beginning in
December 2009, Twigg invited a seventeen-year-old student to his home to work
on some outstanding homework assignments. Twigg told the student he could
either complete the assignments or play a video game. Twigg explained the
student would receive credit for an assignment for every level the student beat on
the video game; the student was required to remove an article of clothing for
each level lost.
The student chose to play the video game. The student lost four levels
and was wearing only boxer shorts when Twigg left the room momentarily. While
he was alone, the student researched online how to beat the game. When Twigg
later noticed the student’s improved performance on the video game, the student
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admitted to cheating. Twigg then informed the student he would have to return to
Twigg’s home at a later date.
The student returned to Twigg’s home in January 2010, but the rules of
the game had changed. During this interaction, if the student wished to avoid
removing a piece of clothing, he could instead opt to complete an activity on a list
provided by Twigg. The student played the video game and had to remove
clothing. However, at some point, the student began selecting activities from the
list. The first activity the student chose to complete was called “cold change.”
This required the student to go into Twigg’s garage by himself to change into a
different pair of boxers. The student also completed exercises wearing only a
towel.
Although the student eventually earned enough credit for the assignments,
he still owed Twigg money for a cell phone bill Twigg apparently had paid for the
student. Twigg offered to let the student work off the debt by completing more
activities on the list. The student described the remaining activities as:
[S]ix boxers which . . . involve[d] me in only my boxers laying on the
bed and receiving six spankings, three whoppers, which would
involve me bending over the bed butt naked and getting three
spankings. The snow angels, which basically involved me doing
two snow angels in my boxers, one on my front and one on my
back. And des[s]ert mix, which involved me getting into the bathtub
and letting him pour pineapple sauce, chocolate sauce, eggs, flour,
milk, and two different kinds of candy on me.
The student completed the activities before Twigg drove him home. The student
eventually told a few friends, who in turn told the high school principal. The
incidents were reported to the police.
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During the investigation in January 2010, school administrators and police
officers interviewed Twigg, who admitted to the incidents described by the
student. Twigg explained he “thought this was a way to motivate the student to
do better.” He further apologized and said “this is a stupid thing I did. It was a
mistake, and I am sorry.” Twigg was arrested, and two other former students
emerged with similar allegations against Twigg.
The State charged Twigg by trial information with six counts of lascivious
acts with a minor. Five of those charges related to the current student, and one
count related to one of the former students. No charges were filed concerning
the other former student, who was not a minor when the acts were allegedly
committed. The State eventually dismissed the charge concerning the former
student but relied on that student’s testimony at trial on the remaining five counts.
The jury found Twigg guilty; however, that conviction was reversed in
State v. Twigg, No. 11-0733, 2012 WL 3590045 (Iowa Ct. App. Aug. 22, 2012),
and the case was remanded for a new trial.
The case was retried in May 2013, and the jury again found Twigg guilty
on all five counts of lascivious acts with a minor child. After an unsuccessful
direct appeal,1 Twigg filed an application for postconviction relief on March 10,
2015. The district court scheduled the PCR proceeding for October 5, 2015;
however, the State filed a motion to dismiss the application, claiming the issues
raised in the application had been previously adjudicated in the preceding two
direct appeals. The district court took the motion under advisement and set it for
hearing on the same day as the PCR proceeding. The court then denied the
1
See State v. Twigg, No. 13-1094, 2014 WL 3747676 (Iowa Ct. App. July 30, 2014).
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State’s motion, and Twigg filed a motion to amend his petition and an amended
and substituted petition. Again, in November 2015, Twigg moved to amend his
application, which the court granted. After being rescheduled several times, the
PCR proceeding was held on February 22, 2016.
At the PCR hearing, Twigg claimed his second trial counsel breached an
essential duty when he failed to obtain for use at trial a transcript of the meeting
that occurred with school officials where Twigg confessed to the incidents.
Although the police and school officials denied recording the meeting, Twigg’s
counsel at his first trial seemed to remember seeing a transcript of that meeting;
however, counsel was no longer in possession of it. Twigg said he obtained the
transcript and gave it to his first attorney but did not keep a copy of it. Twigg also
contended his second trial counsel was ineffective in his failure to fully develop
his defense that the acts were not sexually motivated. He alleges trial counsel
did not effectively examine or question the expert witness who testified on his
behalf at his second trial.
The PCR court dismissed Twigg’s application in an order issued on
February 26, 2016. Twigg now appeals.
II. Standard of Review.
“Postconviction proceedings are law actions ordinarily reviewed for errors
at law.” Bagley v. State, 596 N.W.2d 893, 895 (Iowa 1999).
We review claims of ineffective assistance of counsel de novo. See
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To prevail on a claim of
ineffective assistance of counsel, Twigg must prove by a preponderance of the
evidence (1) his attorney failed to perform an essential duty and (2) prejudice
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resulted from the failure. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa
2011). We “look to the cumulative effect of counsel’s errors to determine
whether the defendant satisfied the prejudice prong.” State v. Clay, 824 N.W.2d
488, 500 (Iowa 2012). Twigg’s claim will fail if either element is lacking. See
State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). Twigg must show “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). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.Additionally, “[i]mprovident trial strategy, miscalculated tactics, and
mistakes in judgment do not necessarily amount to ineffective assistance of
counsel.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). And “strategic
decisions made after ‘thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.’” Ledezma v. State, 626 N.W.2d 134, 143
(Iowa 2011) (quoting Strickland, 466 U.S.at 690).
III. Discussion.
A. Meeting Transcript
Twigg first maintains the PCR court erred in finding his second trial
counsel was not ineffective for failing to obtain the transcript from the January
2010 meeting between Twigg, school administrators, and police officers.
Alternatively, Twigg contends his PCR counsel was ineffective in failing to obtain
the transcript. Twigg claims the transcript is important as it contains
impeachment evidence.
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Twigg maintains a record of the meeting existed and had, at one time,
been in his possession. He claims to have received the transcript from the Iowa
Department of Education and then maintains he turned over his only copy to his
attorney at his first trial. Twigg’s attorney from his second trial testified he
contacted the first attorney about the transcript. The first attorney apparently told
the second attorney that he remembered seeing something like what Twigg
described. However, the first attorney indicated he could not locate the transcript
in his office. The second attorney contacted both prosecutors and the clerk’s
office to see if they had a copy; however, no one did. Neither the first or second
prosecutor remembered anything like what Twigg described.
Having reached an impasse in the search for the transcript, Twigg’s
second attorney deposed the individuals who participated in the meeting with
Twigg, namely, the school officials and the two plain-clothes police officers.
Twigg’s attorney asked each individual about whether the interview with Twigg at
the school had been recorded and if the school was equipped to do such a
recording. Everyone testified that the meeting had not been transcribed or
recorded.
Twigg contends that the transcript from this meeting would have been
useful to his defense in that it would show he never made the statements he was
alleged to have made in other police reports and narratives. Specifically, Twigg
testified to two inaccuracies that allegedly could have been resolved with the
transcript. First, he claims he never admitted at the meeting to paying “the
student to strip down and dress in a towel and do push-ups or sit-ups and so
forth.” Second, he contends the transcript would show that a certain school
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official was not present at the meeting, despite testimony at trial that he was
there.
On our de novo review, we find Twigg cannot prevail on his ineffective-
assistance claim. Twigg cannot prove that he was prejudiced by his attorneys’
failure to obtain a copy of the transcript, if it existed. Neither of Twigg’s examples
of potential inconsistencies demonstrates the outcome of his trial would have
been different if the transcript were available. The complaining witness testified
at trial to the events Twigg denies admitting at the meeting. Whether or not
Twigg made the admission is not critical to his defense he lacked sexual intent.
And, it is unclear what the significance is of the school official’s presence or
absence at the meeting.
In order to maintain a claim of ineffective assistance of counsel for
postconviction review, an applicant must make a minimal showing by which this
court can assess the viability of the claim. See State v. Wagner, 410 N.W.2d
207, 215 (Iowa 1987). Twigg has not elaborated on his claims to show how his
counsels’ inactions caused him prejudice. His bald assertions they were
ineffective are insufficient to sustain his ineffective-assistance claims. See id.Therefore, these claims fail.
Having found no prejudice, we need not consider the remaining element.
See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we conclude a
claimant has failed to establish either of these elements, we need not address
the remaining element.”).
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B. Expert Witness Claim
Twigg next contends his second trial counsel was ineffective for failing to
develop his defense that his behavior was “weird” but was not sexual in nature.
Specifically, Twigg argues his trial counsel ineffectively examined the forensic
psychiatrist who testified for the defense to explain the difference between “weird
behavior” and “sexual behavior.” Twigg urges us to reverse the convictions and
remand the case for a new trial.
According to trial counsel’s testimony at the PCR proceeding, the defense
forensic psychiatrist administered several tests on Twigg, which led the
psychiatrist to opine at trial that Twigg did not act with sexual intent and that
some of the acts he admitted to committing even suggested a lack of sexual
intent—a necessary element in the State’s case.2 Trial counsel further testified
that although the expert’s demeanor did not come “off terribly well,” he thought
“his testimony was fine” and that “unfortunately the nature of the allegations was
too much for the expert to overcome.” And when asked about why he chose to
call this expert, trial counsel indicated,
It was definitely—the focus was to say I know it looks sexual and I
think the expert even—we tried to take points where the expert said
we know this looks sexual, that’s why we’re here in trial. Because it
looks pretty sexual, but it isn’t sexual. You have to take my word
for it. Well, the jury didn’t take his word for it. But that was really
[the] only the defense we had. I thought it was a decent shot. It
was difficult just because of the nature of the facts, but from a legal
perspective I thought it was plausible, possible.
2
Iowa Code section 709.14 provides:
It is unlawful for a person over eighteen years of age who is in a
position of authority over a minor to force, persuade, or coerce a minor,
with or without consent, to disrobe or partially disrobe for the purpose of
arousing or satisfying the sexual desires of either of them.
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Twigg has not shown a different direct examination or presentation of the
expert witness might have changed the jury’s guilty verdict. Trial counsel
advanced a defense he thought might be successful, although the jury disagreed.
Even if the testimony from the expert had led the jury to conclude Twigg’s
behavior was “weird,” there is nothing to indicate they would not have also found
his behavior to be “sexual.” The two notions are not necessarily mutually
exclusive. However, counsel made a tactical decision to present a defense and
obtained expert testimony in support of the defense; Twigg has not shown in
what respects counsel’s representation should have been different such that our
confidence in the outcome is undermined.
Because we find Twigg suffered no prejudice, we need not consider the
breach-of-an-essential-duty element of Twigg’s claim. See id. at 868.
For the foregoing reasons, we affirm the judgment of the district court
denying Twigg’s application for postconviction relief.
AFFIRMED.