IN THE COURT OF APPEALS OF IOWA

No. 15-1275

Filed January 11, 2017

MATTHEW LOUIS BANKER,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Nancy A. 

Baumgartner, Judge.

Matthew Banker appeals the district court’s denial of his application for 

postconviction relief. AFFIRMED.

Kent A. Simmons, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant 

Attorney General, for appellee State.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

Matthew Banker attended a party in Iowa City. Following the party, two 

women notified police that Banker sexually assaulted or attempted to sexually 

assault them. The State charged Banker with third-degree sexual abuse and 

assault with intent to commit sexual abuse, and a jury found him guilty as 

charged. This court affirmed his judgment and sentence and preserved two 

ineffective-assistance-of-counsel claims for postconviction relief. See State v.

Banker, No. 11-0355, 2012 WL 2122369, at *1 (Iowa Ct. App. June 13, 2012). 

Banker filed an application for postconviction relief, asserting his trial 

attorney was ineffective in several respects. The postconviction court denied 

Banker’s claims following an evidentiary hearing. 

On appeal, Banker contends his trial attorney was ineffective in failing to 

(1) move for separate trials, (2) invoke an exception to Iowa’s “rape shield” rule,

(3) impeach the testimony of one of the witnesses, (4) call an expert to testify 

about the “blackout effect” associated with over-consumption of alcohol, and (5) 

seek exclusion of a surreptitious recording of him. He also contends cumulative 

errors mandate reversal. 

To prevail, Banker must show (1) counsel breached an essential duty and 

(2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). “If 

we conclude a claimant has failed to establish either of these elements, we need 

not address the remaining element.” State v. Thorndike, 860 N.W.2d 316, 320 

(Iowa 2015). 

We elect to resolve the issues under the Strickland prejudice prong. We 

begin by examining whether Banker established prejudice on each claim, then 
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we proceed to a cumulative error analysis. See State v. Clay, 824 N.W.2d 488, 

500, 501-02 (Iowa 2012) (citing with approval precedent in which “we analyzed 

all [ineffective assistance] claims individually and cumulatively” and stating 

because we are analyzing “the prejudice prong of Strickland without considering 

trial counsel’s failure to perform an essential duty, [we] can only dismiss the 

postconviction claim if the alleged errors, cumulatively, do not amount to 

Strickland prejudice”). Prejudice requires proof of “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. 

A. Ineffective Assistance of Counsel

1. Severance. Banker contends his trial attorney should have moved to 

sever the two charges. He relies on Iowa Rule of Evidence 5.404(b), which 

provides that evidence of other acts “is not admissible to prove the character of a 

person in order to show that the person acted in conformity there with,” but may 

“be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” He 

argues, “[T]here was no ‘legitimate issue’ that would allow the State to use 

evidence of a similar crime against [him] in separate trials.”

The Iowa Supreme Court rejected a virtually identical argument in State v.

Romer, 832 N.W.2d 169, 183 (Iowa 2013). After reiterating the distinction 

between our bad acts rule, Iowa Rule of Evidence 5.404(b), and our severance 

rule, Iowa Rule of Criminal Procedure 2.6(1), the court stated:

[W]e have previously found that an attempt to equate our 

evidentiary rule’s principles with rule 2.6(1)’s principles is 

inapposite. “This evidentiary rule deals with what evidence is 
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properly admissible to prove the crime charged. The joinder of 

offenses rule deals with the more basic question of what crimes can 

be charged and tried in a single proceeding . . . . The two rules 

deal with different questions, making the wholesale importation of 

the evidentiary rule into the law dealing with joinder of offenses 

inappropriate.”

Romer, 832 N.W.2d at 183 (quoting State v. Lam, 391 N.W.2d 245, 249 (Iowa 

1986)). In discussing nonconstitutional prejudice under the severance rule, the 

court declined to employ an analysis premised on rule 5.404(b), focusing 

instead on the relevancy of the evidence, the “legally intertwined” nature of the 

evidence, and the district court’s submission of a cautionary instruction. See 

id.; cf. State v. Elston, 735 N.W.2d 196, 199-200 (Iowa 2007) (applying rule 

5.404(b) balancing test and finding under the test certain evidence was 

“admissible to prove the indecent contact charge against [the defendant] 

whether or not the trial of that charge was joined with the trial of the sexual 

exploitation charges”). The court concluded the defendant did not show “unfair 

prejudice by joining the interrelated eight counts into one trial.” Romer, 832 

N.W.2d at 183.

We will apply the nonconstitutional prejudice factors set forth in Romer to 

determine whether, under Strickland, there is a reasonable probability a motion 

to sever would have been granted had one been filed. The assaults on the two 

women occurred on the same night, in the same house, and under similar 

circumstances. One woman was in the basement with her boyfriend; the other 

was upstairs on a couch. Both testified that a man placed his hand on their 

stomachs and engaged in sexual touching below their belt lines. Although the 

facts underlying one count were not essential to establishing the second count, 
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the Romer court found complete congruence unnecessary. See id. at 182. 

The court stated, “Even if some of the evidence needed to prove count I was 

irrelevant to whether [the defendant] committed the acts he was charged with in 

count IV, for example, the State had the right to charge multiple counts in the 

same offense, to achieve judicial economy.” Id. The same is true here. The 

two acts were sufficiently intertwined to conclude the district court would not 

have abused its discretion in denying a motion to sever. Finally, as in Romer, 

the district court cautioned the jury about its obligation with respect to each 

count, instructing the jury as follows:

The Defendant has been charged with two (2) counts. This is just a 

method for bringing each of the charges to trial. If you find the 

Defendant guilty o[r] not guilty on any one of the two counts, you 

are not to conclude the Defendant is guilty or not guilty on the other

count. You must determine whether the Defendant is guilty or not 

guilty separately on each count.

We acknowledge this instruction did not address the danger of propensity 

evidence underlying rule 5.404(b). However, the language conveyed this

concern by exhorting jurors not to find that because Banker may have 

committed one crime he also committed the other crime. See Thomas v. State, 

No. 11-0275, 2012 WL 836839, at *8 (Iowa Ct. App. Mar. 14, 2012) (concluding 

the identical instruction “minimiz[ed] any possible prejudice” associated with the 

denial of a severance motion). 

We conclude there is no reasonable probability a motion to sever would 

have been granted had one been filed. See Crawley v. State, No. 05-1666, 

2007 WL 2376671, at *3 (Iowa Ct. App. Aug. 22, 2007).
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2. Iowa Rule of Evidence 5.412. Banker sought to elicit testimony from 

one of the women about her sexual activity with her boyfriend shortly before the

assault. Following an objection by the prosecutor and an off-the-record 

discussion, Banker withdrew the question. 

Banker contends his attorney should have invoked an exception to the 

rule that prohibits this type of evidence. See Iowa R. Evid. 5.412. The rule,

commonly known as the “rape shield law,” precludes the admission of “reputation 

or opinion evidence of the past sexual behavior of an alleged victim of sexual 

abuse.” Iowa R. Evid. 5.412(a). The rule also precludes the admission of 

“evidence of a victim’s past sexual behavior other than reputation or opinion 

evidence” unless the evidence is “[a]dmitted in accordance with [certain 

requirements of the rule] and is constitutionally required to be admitted.” Iowa R. 

Evid. 5.412(b)(1). In Banker’s view, testimony concerning the woman’s sexual 

activity with her boyfriend was “constitutionally required” because the evidence 

furnished “good reason for [the woman] to wonder whether a sexual assault 

‘really happened.’”

The postconviction court addressed this argument as follows:

When considering the issue of whether the evidence is 

constitutionally required to be admitted pursuant to Iowa R. Evid. 

5.412(b)(1), “[t]he defendant’s constitutional rights must be weighed 

against the recognized interest that the State has ‘to (1) protect the 

privacy of the victims; (2) encourage the reporting and prosecuting 

of sex offenses; and (3) to prevent time consuming and distracting 

inquiry into collateral matters.’” State v. Jones, 490 N.W.2d 787 

(1992) (citing State v. Gettier, 438 N.W.2d 1, 3 (Iowa 1989)). “A 

trial court can properly exclude evidence of the victim’s prior sexual 

histories if the evidence were either irrelevant or more prejudicial 

than probative.” Id.; Iowa R. Evid. 5.412(c)(3).
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The court found the evidence irrelevant to the question of whether a 

sexual assault occurred. After engaging in a detailed factual analysis, the court 

concluded there was “little likelihood that the evidence of prior sexual intercourse 

with [the boyfriend] would have been admitted, even had counsel known to follow 

the requirements of rule 5.412.” We fully concur in the court’s reasoning. We 

conclude there is no reasonable probability of a different outcome had Banker’s 

trial attorney properly moved to admit the woman’s testimony about her prior 

sexual conduct under the specified exception to rule 5.412.

3. Impeachment of Testimony. In a similar vein, Banker challenges his 

trial attorney’s failure to impeach the same woman with her prior statement to 

police. In the earlier statement, the witness described Banker’s position in the 

bed she shared with her boyfriend and mentioned other details that Banker

characterizes as “bizarre” and “absolute[ly] absurd[].” 

The postconviction court found Banker’s argument to be “a bit of a 

stretch.” We are inclined to agree. Banker’s attorney raised one important and 

potentially improbable detail in the statement during his cross-examination of the 

officer who questioned the woman. Although the attorney did not ascribe this 

detail to the woman, the jury reasonably could have discerned the source of the 

information from the context. Other details in the woman’s prior statement did 

not detract from the essence of her trial testimony. The woman described the 

assault in precise terms, leaving little doubt that someone other than her 

boyfriend committed the act. The following morning, the woman discovered an 

open flip phone next to the bed. On dialing “Mom” and asking whose phone it 

was, she learned the phone belonged to Banker. At the postconviction relief 
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hearing, Banker was asked whether he disputed the cell phone evidence. 

Banker responded, “I do not have any memories that would . . . confirm or deny 

that.” After the assault, Banker came to the house and apologized for his 

conduct. At the postconviction relief hearing, he was asked, “did you tell . . . a 

number of people that you felt bad . . . that something like that had happened to 

these girls.” Banker responded, “In a sense, yeah.” Two witnesses also testified 

that, when Banker returned, he went directly to the basement to retrieve his cell 

phone. We conclude there is no reasonable probability of a different outcome 

had counsel impeached the woman with her prior statement to police.

4. Failure to Present Expert Testimony on Blackouts. Banker 

challenges his trial attorney’s failure to present expert testimony concerning the 

effects of heavy alcohol consumption. According to Banker, the testimony would 

have provided “a scientific/medical explanation for [his] loss of memory as to key 

events.” Banker further claims his lack of memory “was an overwhelming factor 

for counsel’s advice that [he] not take the witness stand [because] Banker’s 

persistent answers of inability to remember events would lead the jury to 

conclude he was not being truthful,” and expert testimony “would have allowed 

the jury to naturally conclude [his] loss of memory was due to the blackout 

effect.” 

At the postconviction relief hearing, Banker’s trial attorney testified that he 

consulted an expert about Banker’s “diminished capacity because of his 

intoxication.” According to counsel, the expert was “adamant that he could not 

help” because counsel “could not quantify the number of drinks or amount of 

alcohol [Banker] had consumed in a definitive period of time.” While counsel 
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acknowledged he did not discuss a possible blackout effect with the expert, this 

type of testimony also would have been contingent on knowledge of the precise 

amount of alcohol Banker consumed. The postconviction court addressed the 

prejudice prong with respect to this claim at length. Again, we fully concur in the 

court’s analysis. We conclude there is no reasonable probability a trial expert 

testifying to the blackout effect would have changed the outcome. See, e.g.,

Heaton v. State, 420 N.W.2d 429, 432 (Iowa 1988) (“[I]n view of the trial court’s 

reliance on petitioner’s own statements which impeached his testimony as to a 

blackout, we fail to see any prejudice caused by his attorney’s failure to obtain 

the services of an expert.”). 

5. Failure to Seek Exclusion of Recording. Banker challenges his trial 

attorney’s failure to seek exclusion of an audio recording made by a boyfriend of 

one of the women. Wearing a wire, the boyfriend asked Banker whether he had 

done more than “finger[]” the woman’s vagina. Banker responded, “I honestly do 

not think so.”

Banker contends the recording was inadmissible under Iowa Rule of 

Evidence 5.403, which states: “Although relevant, evidence may be excluded if 

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury . . . .” Banker relies on State v.

Cromer, 765 N.W.2d 1, 6-11 (Iowa 2009), in which the court found an attorney 

ineffective where the attorney failed to object to the admission of a recorded 

telephone conversation between the defendant and victim. 

The postconviction court found Cromer distinguishable and provided a 

comprehensive analysis of the differences. We agree with this analysis. See
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also State v. Cain, No. 14-1506, 2015 WL 5285763, at *1-2 (Iowa Ct. App. Sept. 

10, 2015) (distinguishing Cromer). However, even if this case were on all fours 

with Cromer, there is no reasonable probability that a successful objection to the 

admission of the recording would have changed the outcome. Even without the 

recording, jurors heard the women’s detailed testimony about the assaults and 

could have considered the cell phone evidence and Banker’s apologies.

B. Cumulative Error

Banker contends cumulative error denied him a fair trial. See Clay, 824 

N.W.2d at 500. We disagree and adopt the postconviction court’s analysis as 

our own:

The State’s case against Banker was strong, despite the fact N.F.

[the woman in the basement with her boyfriend] could not identify

her assailant. Both N.F. and A.R. [the woman in the living room]

described very similar circumstances in which they were awakened 

from sleep by the sensation of a hand on their stomachs, with the 

hand eventually reaching down toward their genital area. Banker’s 

phone was found on the floor near the bed in [N.F.’s boyfriend’s] 

bedroom. [The boyfriend] and N.F. testified it was not there when

they went to bed. There is no evidence other than speculation that 

would support an argument that someone else placed the phone in 

the basement. Even if Banker testified at trial and the jury believed 

that he did not go directly to [the boyfriend’s] room to look for his 

cell phone the next day, evidence of what transpired in the days 

following the assault presented a substantial challenge for the 

defense. Despite having little to no memory of what occurred the 

previous evening, Banker made his way back to the house the next 

day to search for his cell phone. When Banker went to [the 

boyfriend’s] house on Monday evening and talked to N.F., Banker 

asked if she was [the boyfriend’s] girlfriend. When she said that 

she was, he told her he was sorry for what he did. This was before 

Banker knew he had been accused of anything. N.F. immediately 

asked him if he knew what he did. Banker replied he did not know, 

but that it was something bad. After N.F. told him what he did, he 

did not register shock or denial. After N.F. shut the door on him, he 

knocked again, asked for [the boyfriend], and told him he wanted to 

apologize to him. Once the police became involved, Banker 

repeated his statement that he had done something very bad to 
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[the officer]. Finally, when confronted with a pointed question from 

[the boyfriend] regarding whether he had done anything more than 

finger N.F., Banker’s reply was that he didn’t think he did anything 

more than that. Despite having multiple contacts with the various

people at [the boyfriend’s] residence, Banker never denied having 

sexual contact with N.F., never asserted he was not the kind of 

person that would do that sort of thing, and never said he had not 

committed the acts of which he was accused. It is clear that there 

is little Banker’s testimony could have done to assist in his defense. 

Banker does not deny that he repeatedly apologized for his 

behavior. He does not deny that he made the statement on the 

audio recording. He acknowledged that he would not have been 

able to provide any testimony to account for the fact his cell phone

wound up in the basement bedroom of a person he hardly knew. 

These critical and damaging facts would be present even if trial 

counsel had done the things Banker alleges are a failure of an 

essential duty. Even if Banker had proved that trial counsel failed 

in an essential duty, he has not proved there is a reasonable 

probability that the outcome of the trial would have been different.

We concur in this cumulative error analysis. We affirm the postconviction court’s 

denial of Banker’s ineffective-assistance-of-counsel claims.

AFFIRMED.