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 , claim ing 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 conviction s 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)

. H ad 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 faile d to prove he was prejudiced by counsel s’ 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

— f irst in her own apartment, then in his apartment, and finally back in her own apartment . H e left once she fell asleep. Over the course of the confinement, Whitworth brutally beat the victim and committed multiple sexual assault s

. O nce the victim awoke i n the early morning hours of October 14, she ran to her parent s ’ 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. Wh en 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 W h itworth in the criminal trial. W hile 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 Whitwort h. At trial, the victim testified to her injuries and described the sexual assault s she endured . P hotographs of her injuries were admitted. She stated that while she was previously friends with W hit worth, at no point did she have a romantic or sexual re lationship with him. Defense counsel “vigorously” cross

examined the victim in an effort to get her to admit that she consent ed to the sex acts, but counsel s ’ 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 p ast sexual history. The jury returned guilty verdict s. 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 c ourt 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 the4

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. T he postconviction cou rt ’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 p rejudice as a result of counsel s ’ failure. See id

. Whitworth must prove both elements to be5

successful, and we need not address the duty prong if we can resolve the claim on the prejudice prong. See Ledezma v. St ate , 626 N.W.2d 134, 142 (Iowa 2001). To establish prejudice, Whitworth must show “there is a reasonable
pr obability that, but for counsel s ’ unprofessional errors, the result of the proceeding would have been different.” See i d . at 143. “A reasonable pr obability 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 requi red 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 all eged. 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 order6

to determine the admissibility of the evidence, t he court is to hear the evidence in chambers

. Id

. In its ruling, the court must determine whether the evidence is relevan t 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 u nder the test for prejudice is the strength of the State’s case.” S tate 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 note d by the postconviction court, the other evidence at trial strongly support ed the conclusion the victim did not consent to sexual acts with Whitworth. T he 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 particular ly significan t

. Additionally, t he 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 dispute d the source of t his injury. Whitworth’s proposed testimony

— he had previously had consensual sex7

with the victim

— is not sufficient to unde rmine 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.