Opinion
No. 1-939 / 00-2029.
Filed April 24, 2002.
Appeal from the Iowa District Court for Emmet County, JOHN P. DUFFY, Judge.
Scott Allen Mankin appeals from his convictions, following jury trial, for two counts of sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, William Ridout, County Attorney, and Rosalise Olson, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Scott Allen Mankin appeals from his convictions, following jury trial, for two counts of sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (1999). Mankin alleges on appeal he received ineffective assistance of trial counsel in a number of respects and that he was wrongly sentenced. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Scott Mankin was charged with two counts of sexual abuse for allegedly engaging in numerous acts of oral sex with his minor daughter N.M., who was less than twelve years of age at the time of the alleged incidents. Mankin, his wife Karen, and their two children moved to Iowa from Ohio in September of 1999.
N.M. testified that Mankin performed oral sex on her and made her perform oral sex on him on numerous occasions. The alleged abuse began while the family was living in Ohio and continued after they moved to Iowa. The abuse apparently came to light when Mankin asked his wife Karen if she would watch while N.M. performed oral sex on him. Karen refused and confronted N.M. regarding Mankin's statement. N.M. initially denied the abuse but later admitted it to her mother. She stated she did not want to contact the police because Mankin had allegedly threatened to kill Karen if N.M. ever told anyone about the abuse and she was afraid he would do so.
Karen eventually went to her pastor about the alleged abuse. He persuaded her to contact the police. Mankin was charged with two counts of sexual abuse in violation of Iowa Code section 709.3(2) (1999). Karen testified that Mankin had told her he had sexually abused N.M. Mankin testified the abuse had not occurred and that he had not made such a statement to Karen. A jury found Mankin guilty on both counts and the court entered judgment against Mankin sentencing him to two indeterminate twenty-five year terms of incarceration to be served concurrently.
Mankin appeals from this judgment and sentence, through both appellate counsel and in a pro se brief, alleging numerous grounds of ineffective assistance of trial counsel and that he was sentenced improperly. In appellate counsel's brief Mankin contends his trial counsel was ineffective for (1) failing to move for a mistrial following a prosecutor's question to George Weltlin, (2) misstating the record in closing arguments and failing to adequately correct the misstatement, and (3) failing to move for a new trial based on the weight of the evidence. Mankin's pro se brief alleges he received ineffective assistance of counsel when his counsel compelled him to testify against himself by offering into evidence a letter he did not want her to and in failing to call certain witnesses at trial. Mankin also alleges in his pro se brief that the trial court erroneously sentenced him under the sexual predator enhancement provisions of section 901A.2(3). We will address each of these issues separately.
II. SCOPE OF REVIEW
A defendant is entitled to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). When there is an alleged denial of constitutional rights, such as effective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); State v. Osborn, 573 N.W.2d 917, 920 (Iowa 1998). Our review of a claim that a sentence is illegal is for errors of law. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999).
III. MERITS
To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). We may affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
We need not decide whether counsel's performance is deficient before examining the prejudice component. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)). A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987). To warrant a finding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Aldape, 307 N.W.2d at 42.
While we often preserve ineffective assistance of counsel claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). However, this preference for preserving ineffective of assistance claims does not relieve Mankin of his duty on direct appeal to state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999). Mankin does not suggest the record is insufficient to address his claims, the State asserts they can all be dealt with on this direct appeal, and we believe the record is adequate to address all of Mankin's claims.
A. Prosecution's Question to George Weltlin
Mankin first argues his attorney was ineffective in failing to move for mistrial in response to a question posed to George Weltlin by the State at trial. The record reflects that Mankin and his family stayed with Weltlin for several months after they moved to Iowa. N.M. testified that Mankin sexually abused her at least three times while they were living in the Weltlin home. Mankin called Weltlin to testify in his defense. Weltlin testified as to Mankin's honesty and good character as well as Karen and N.M.'s reputations for dishonesty. Weltlin also testified that it would have been almost impossible for Mankin to have been alone in the house with N.M. as several people lived in the house and there was always someone there.
During direct examination of Weltlin the following exchange took place regarding Weltlin's observations of the Mankin family while they were living with him.
Q. Did you see any indication in any of them while they lived in your home that there was any type of sexual abuse going on?
A. No. No. You could — no.
Q. And did you see any indication in observing [N.M.] and Scott after they moved out of your house that there was something going on between them?
A. Nope.
During cross-examination the prosecutor asked Weltlin, "Isn't your mother in prison for sexually abusing your brothers"? Mankin immediately objected to the State's question but Weltlin nevertheless proceeded to state, "I don't want to answer that question. It ain't got nothing to do with what's going on. . . . I plead the fifth. This isn't even right." A bench conference was held after which the court sustained the objection and the jury was instructed to disregard the question and the answer. Mankin contends the question regarding Weltlin's mother was prosecutorial misconduct and his attorney was ineffective for failing to move for a mistrial on such basis.
Trial courts have broad discretion in ruling on claims of prosecutorial misconduct. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999). Therefore, we review a district court's ruling on a motion for mistrial based on prosecutorial misconduct for abuse of discretion. Id. Assuming a proper motion for mistrial had been made, the burden would have rested on Mankin to prove there was prosecutorial misconduct and that resulting prejudice deprived him of a fair trial. State v. Gilroy, 313 N.W.2d 513, 519 (Iowa 1981). "It is not the prosecutor's misconduct which entitles a defendant to a new trial, but rather the resulting prejudice which prevents the defendant from obtaining a fair trial." State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999); see also Greene, 592 N.W.2d at 31. The question before us then is: If a proper motion had been made, would it have been an abuse of trial court discretion not to find such prejudice had occurred as to require a mistrial. See State v. Owens, 635 N.W.2d 478, 482 (Iowa 2001). For the reasons that follow we think not.
In determining if the prosecutor's question prejudiced Mankin so as to deprive him of a fair trial we "consider the entire trial, including the trial court's admonition to the jury, number of incidents, and strength of the evidence." Pace, 602 N.W.2d at 774-75 (quoting State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)); see also Greene, 592 N.W.2d at 32. A consideration of these factors leads us to the conclusion Mankin was not prejudiced by the prosecutor's question.
First, the trial court sustained Mankin's objection, struck the answer, and admonished the jury to disregard both the question and answer. In addition, Weltlin did not give a substantive answer to the question. See Gilroy, 313 N.W.2d at 519 (stating that generally there can be no reversal due to prosecutorial misconduct on the sole ground of questions asked unless bad faith of the prosecutor is shown). Second, this was an isolated incident consisting of only one question on cross-examination and the subject was never raised again. Third, the evidence against Mankin was strong, with detailed and clear testimony from the victim N.M. and corroborative testimony from both her mother and brother.
We cannot say Mankin has shown a mistrial would have been required if it had been requested. Mankin has therefore shown neither that counsel breached an essential duty by not moving for mistrial nor that he was prejudiced by the absence of such a motion. Mankin's first claim of ineffective assistance must fail.
B. Defense Counsel's Statement During Closing Arguments
Mankin next contends that his counsel was ineffective for failing to adequately correct a misstatement she made during her closing argument. Prior to trial Dr. Carlton found N.M. to have a genital-area wart. The court ordered Mankin to undergo a physical examination by a physician to determine the presence of warts or pimples in his genital area. Dr. Moews performed the examination on Mankin and determined Mankin had warts on his genitals and fingers. Mankin refused the State's offer to have his warts removed and examined to determine if they were of the same viral type as the one found on N.M. Prior to trial the court ruled that because it was not known how N.M. contracted the wart, and no connection could be made between N.M. and Mankin's warts, the State was prohibited from offering evidence or making mention of the fact N.M. had a wart.
Dr. Moews testified regarding his medical examination of Mankin and the discovery of the genital warts. In addition, N.M. testified that her father had a "bump" on the tip of his penis. No testimony or evidence was presented to the jury to indicate that N.M. had a genital wart.
During closing arguments Mankin's counsel made the following statement to the jury:
They have to prove to you that what she [N.M.] said is true. And the only thing they have presented to you to indicate what she says is true is a doctor that said she had warts — her father has warts, because she said that he has warts, and her mother saying she told me it happened.
Mankin argues that by stating N.M. had warts and not adequately correcting her misstatement defense counsel left the jury with the impression that he was the source of N.M.'s warts. He contends this was severely prejudicial to his case. The State contends this was simply an inadvertent misstatement, that defense counsel simply misspoke and said "she"instead of "he," and the mistake was immediately corrected. Specifically, the State points out Mankin's counsel must have been referring to Dr. Moews's testimony regarding Mankin's warts when she said "a doctor . . . said she had warts" because there was no doctor's testimony that N.M. had warts, only testimony that Mankin had warts. We agree with the State's argument.
Dr. Moews's testimony was clear that Mankin had warts and there was no evidence at trial that would indicate to the jury N.M. had warts. Therefore, we do not believe the jury was misled by defense counsel's very brief misstatement which was immediately corrected. Furthermore, the jurors were instructed they were to base their verdict only on the evidence and the court's instructions and that statements, arguments, questions and comments by the lawyers were not evidence. The jury is generally presumed to follow the instructions of the court. State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). We conclude Mankin has not shown that the outcome of the trial would have been different but for counsel's misstatement during closing arguments and has thus not shown the prejudice necessary to establish a claim of ineffective assistance. His second claim of ineffective assistance must also fail.
C. Counsel's Failure to Move for New Trial
Mankin alleges his trial counsel was ineffective for failing to move for new trial based on the weight of the evidence. The "weight of the evidence" refers to a determination by the trier of fact that "a greater amount of credible evidence supports one side of an issue or cause than the other." State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). The court in Ellis determined this is the proper standard to be applied in motions for new trial pursuant to Iowa Rule of Criminal Procedure 23(2)(b)(6). For two reasons we find this claim of ineffective assistance to be without merit.
Following trial Mankin filed a pro se motion for new trial. He alleged, among other things, that "the verdict is contrary to law or evidence," directly quoting from rule 23(2)(b)(6). The trial court overruled the motion. Mankin now contends his trial counsel was ineffective for failing to file a more specific motion for new trial, alleging his motion was denied because it was too broad. He argues the verdicts were contrary to the weight of the evidence because the credibility of both N.M. and Karen was questionable due to their hostility toward him and inconsistency in N.M.'s testimony relating to a door he allegedly broke.
Mankin filed this pro se motion despite the fact he was represented by counsel at the time.
Mankin's claim in his motion for new trial that the verdict was "contrary to . . . [the] evidence" was apparently based on a contention that the testimony of N.M. and Karen lacked credibility, because in ruling on the motion the trial court noted that the jury had determined their credibility and clearly believed N.M. and the other State's witnesses. The trial court thus considered the question of their credibility before specifically holding that "the verdict . . . is not contrary to the . . . evidence." In so holding it applied the appropriate standard under what is now rule 2.24(2)(b)(6). Therefore, despite the breadth of Mankin's pro se motion for new trial the trial court addressed and ruled on the very issue which he now asserts trial counsel should have raised, a claim the verdict was contrary to the evidence because of questions concerning the credibility of N.M. and Karen. Mankin was not prejudiced by the fact trial counsel did not file a motion more clearly and specifically raising an issue which the trial court in fact addressed and ruled on.
Further, as apparently decided by the trial court, the record does not support a claim that N.M. and Karen were so lacking in credibility that the verdicts were contrary to the weight of the evidence. The mere fact that Karen and N.M. were hostile toward Mankin and found their lives to be more pleasant without him does not destroy their credibility. N.M. was twelve years old at the time of trial and her testimony regarding the abuse was detailed and certain. Furthermore, Karen's testimony corroborated N.M.'s accounts and, other than Karen's and N.M.'s hostility toward Mankin, there is little in the record to discredit their testimony.
Mankin also points to the fact N.M. testified that Mankin once punched a hole in a basement door when she resisted one of his sexual advances. When the police investigated the door it was not broken and in comparing it with another door the officer did not believe it had been replaced. While this does raise an issue concerning N.M.'s credibility, normally it is for the jury to determine the credibility of the witnesses and what evidence to believe or disbelieve. State v. Smith, 508 N.W.2d 101, 102 (Iowa Ct. App. 1993). Despite this question concerning N.M.'s credibility, the jury quite apparently found her testimony more credible than Mankin's.
A witness's testimony may be so "impossible and absurd and self-contradictory that it should be deemed a nullity by the court." Smith, 508 N.W.2d at 103. However, this is not a case like Smith, in which it was determined the victim's testimony regarding alleged abuse was insufficient to sustain the defendant's conviction. There it was determined the victim's testimony was "inconsistent, self-contradictory, lacking in experiential detail, and, at times, border[ed] on the absurd," and an alleged victim could not provide any details about the alleged abuse incidents. Id. at 103-04. Here, other than her testimony regarding the door, N.M.'s testimony was very clear and detailed and was corroborated by the testimony of both her mother and brother.
Trial counsel had no duty to make an additional motion for new trial claiming the testimony of N.M. and Karen was so lacking in credibility that it could not support the verdicts as any such motion would have been meritless. Owens, 635 N.W.2d at 482; Greene, 592 N.W.2d at 29; State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).
D. Mankin's Letter to the Weltlins
By pro se supplemental brief Mankin contends his attorney was ineffective because she compelled him to testify against his wishes. More specifically, he alleges his attorney offered into evidence a letter he had written to the Weltlins before trial outlining what their testimony should be, a letter which he did not want placed in evidence. He argues offering the letter in evidence required him to testify to explain its contents. Mankin asserts in his brief that the letter was taken out of his jail cell by another inmate and given to the prosecution. In addition, he states the trial court had ordered the letter not be used at trial because it had nothing to do with the case and could cause prejudice against him.
The letter at issue was written by Mankin to the Weltlins while he was in jail awaiting trial. It outlines approximately forty-one matters concerning which Mankin wanted the Weltlins to testify about regarding his relationship with N.M. The letter begins, "I got a friend to sneak this out of jail for me. So don't worry, no one else knows. . . ." It continues on, "I hope you won't let me down, because 40 years of my life is depending on you doing something for me." His letter states he needs the Weltlins to "say the following things and swear that they are true." The Weltlins both testified at trial as character witnesses for Mankin. During Mankin's testimony, defense counsel offered the Weltlin letter into evidence and asked Mankin to explain the letter. Mankin testified he wrote the letter in a panic, he never intended to mail it, and that it was stolen from his jail cell by another inmate and given to the State.
Mankin notes on appeal that he told his attorney he did not want to use the letter but she advised him the State was going to bring it in so they should discuss it first so Mankin would have a chance to explain it. The State argues this was a reasonable tactic or strategy for defense counsel to use to try to diffuse the impact of an incriminating piece of evidence before the State had an opportunity to use it against Mankin. We agree with the State's argument.
Initially we note that although Mankin asserts the trial court ruled prior to trial that this letter was inadmissible, he points to no such ruling in the record nor can we find any such ruling in the record before us on appeal. Therefore, we must assume there was no such pre-trial ruling by the court and find this part of Mankin's claim to be without merit.
As set forth above, "Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." Aldape, 307 N.W.2d at 42. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. Artzer, 609 N.W.2d at 531. A reasonable decision by counsel concerning strategy will not be interfered with simply because the chosen strategy was unsuccessful. State v. Losee, 354 N.W.2d 239, 243 (Iowa 1984). Where counsel's decisions are made pursuant to reasonable trial strategy we will not find ineffective assistance of counsel. State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999).
The letter was marked as a State's exhibit and thus it seemed likely the State was in fact going to use the letter during rebuttal in response to the Weltlins' testimony. Mankin's attorney was concerned about having the letter in evidence and before the jury without Mankin first explaining the letter and why he had written it. This was a reasonable means of trying to diffuse and lessen the impact of an incriminating piece of evidence. Whether this was a good or bad tactic, it was not so unreasonable that it showed ineffectiveness. Losee, 354 N.W.2d at 244; Frank v. State, 376 N.W.2d 637, 641 (Iowa Ct.App. 1985). In evaluating counsel's performance, we presume counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Losee, 354 N.W.2d at 244. Mankin has failed to overcome this presumption and show a breach of an essential duty by counsel. This pro se claim of ineffective assistance fails.
E. Failure to Call Certain Witnesses
Mankin's final complaint of ineffective assistance, also raised in a pro se supplemental brief, alleges his counsel was ineffective for failing to call several witnesses Mankin wanted to have testify at trial. Mankin lists the names of ten potential witnesses and their relationship to him. In complaining of the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job, for example should have called certain witnesses. Dunbar, 515 N.W.2d at 15 (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983)). The defendant must state specific ways in which counsel's performance was inadequate and how competent representation probably would have changed the outcome. Id. Mankin does not allege with any specificity what the testimony of any of these potential witnesses would have been, how it would have supported his defense, or how it would have changed the result of the trial. Therefore, we conclude this claim is too general in nature to allow us to address it or preserve it for a possible postconviction proceeding. Id.; see also State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983) (same).
F. Propriety of Mankin's Sentence
Mankin's final contention on appeal is that the trial court sentenced him under the wrong statutory provision. Specifically, he alleges the court erroneously sentenced him under the sexual predator enhancement statute and he did not receive the required notice of the court's intention to enhance his sentence under Iowa Code section 901A.2(3) (1999). The evidence in the record shows Mankin's argument here is simply incorrect. He was convicted of two counts of second-degree sexual abuse under section 709.3(2), both class "B" felonies, and was properly sentenced to two concurrent terms of incarceration not to exceed twenty-five years. See Iowa Code §§ 902.3, 902.9(2), and 702.11(1) (Supp. 1999), and 902.12(3) (1999). Mankin was not sentenced as a sexual predator as he asserts on appeal. The court did tell Mankin he would have to register as a sexual offender as required by Iowa Code section 692A.2(b), and perhaps Mankin's misunderstanding stems from this statement by the court. However, it is clear from the record the court did not sentence Mankin as a sexual predator as he contends. Therefore, we conclude the sentences imposed by the trial court are not illegal as claimed by Mankin.
IV. CONCLUSION
We conclude Mankin has failed to prove he was denied his Sixth Amendment right to effective assistance of counsel. We further conclude the sentences imposed by the trial court were proper based on Mankin's convictions for sexual abuse. The convictions and sentences are affirmed.
AFFIRMED.