IN THE COURT OF APPEALS OF IOWA

No. 21-0053

Filed April 13, 2022

MICHAEL RAY WINEINGER,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. 

Kilnoski, Judge.

The defendant appeals the denial of his application for postconviction relief. 

AFFIRMED. 

Drew H. Kouris, Council Bluffs, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney 

General, for appellee State.

Considered by Bower, C.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2022).
2

BLANE, Senior Judge.

Michael Ray Wineinger appeals the district court’s denial of his application 

for postconviction relief (PCR). He claims his criminal trial counsel was ineffective 

in agreeing to the admission of video recordings of the interviews of the child sex 

abuse complainant and failing to request a limiting jury instruction regarding those 

videos. We affirm the PCR court decision finding the trial court did not err in 

admitting the prior recorded video and thus trial counsel not ineffective, but based 

on a different evidentiary rule, and find the limiting instruction challenge is not 

preserved for our consideration. 

I. Background facts and proceedings.

Following a jury trial, Wineinger was convicted of four counts of sexual 

abuse in the second degree, in violation of Iowa Code sections 709.1, 709.3(2), 

and 903B.1 (2013). Wineinger appealed, and the appeal was transferred to our 

court. In our opinion, we set out the factual background, which we repeat here.

In December of 2011, Wineinger moved into an apartment 

with Fred, Fred’s three children, and Stephanie, who the children 

considered their mother. The living accommodations included only 

two small bedrooms. The children shared one bedroom. At the time 

of trial, the oldest child, a male, J.L., was fourteen years of age; L.L., 

the alleged victim, was a female age ten; and there was a younger 

child, age nine. The children eventually came to share their bedroom 

with Wineinger. The children referred to Wineinger as Uncle Mike, 

and they appeared to have a good relationship with him.

Stephanie became concerned with Wineinger’s drinking 

problem, and confronted Wineinger, requesting he permanently 

move from the apartment. Wineinger complied. The children

overheard the confrontation.

Soon after, in April of 2014, J.L. reported to school authorities 

that Wineinger had inappropriately touched L.L. J.L. has been

diagnosed with autism and mental-health issues that require 

medication, and he was not always considered truthful. On April 14, 

2014, immediately after being notified about J.L.’s statement, Fred 

and Stephanie took L.L. to Project Harmony, where L.L. was 
3

interviewed by Mindee Rolles, a social worker. Project Harmony is 

an organization that helps children by providing various services. 

L.L. told Rolles nothing had happened between her and Wineinger. 

That evening, Stephanie confronted J.L. about lying concerning the

inappropriate contact with L.L., but J.L. insisted he had been truthful. 

When Stephanie confronted L.L., she admitted lying, and on the

following day, Stephanie took L.L. back to Project Harmony, where 

she was again interviewed by Rolles. Videos were made of both 

interviews.

At the second interview, L.L. stated that Wineinger awakened 

her one night by touching her private parts and he otherwise sexually

abused her. L.L. testified the abuse started when she was in the 

second grade. She further testified that Wineinger made her perform 

oral sex and he put his penis in her vagina and her anus. She 

testified the abuse took place over and over. L.L. had frequently 

asked Wineinger to stop, but he would continue and say “no.” She 

testified she had hesitated to tell anyone because Wineinger had told 

her that if she told anyone about the sexual abuse, “her mom would 

go away.” At trial, Wineinger contended L.L. concocted the story to 

punish him after his confrontation with Stephanie and to protect J.L. 

from being punished for lying.

. . . .

Prior to trial, Wineinger filed a motion in limine to keep the 

second video interview out of evidence. Counsel agreed, however, 

that . . . if the second interview came in then the first interview should 

also come in. The State agreed both videos could come in but 

opposed the first coming in without the second. The district court 

found the parties to be “on the same page.” With the court 

understanding both interviews would be admitted into the record, no 

further consideration was given of the matter.

At a break in the State’s case, and prior to the playing of either 

video, Wineinger’s counsel advised the court and the State that the

essential elements of L.L.’s first video were already in the record, 

showing the first video was not required, and he did not intend to

present it. Wineinger contended that if he elected not to show the 

first interview, the agreement had been abandoned and, therefore,

the second interview would not be admissible. Wineinger’s counsel 

stated, “I am not seeking any further to admit the first interview of

Project Harmony and likewise I think the second interview 

should . . . be . . . excluded . . . .” The court ruled during the break:

Both opening statements referred to it. All of the 

examination of witnesses referred to it. Everything 

refers to it as something that will occur during this trial. 

That is no longer a trial strategy. That’s an 

agreement . . . .

. . . So I’m going to allow the evidence in.
4

State v. Wineinger, No 16-1471, 2017 WL 6027727, at *1–2 (Iowa Ct. App. 

Nov. 22, 2017). Both L.L. and forensic interviewer Rolles testified at the trial.

In the direct appeal, Wineinger raised four claims of ineffective assistance 

of his trial counsel.

1

 In our opinion we found trial counsel was not ineffective 

regarding his failure to object to Instruction No. 15 and Wineinger’s statements but

stated: “Defense counsel’s failure to object to the second video and to request an 

appropriate limiting instruction are reserved for a possible postconviction relief 

action.” Id. at *4. We affirmed Wineinger’s convictions. Id.

Wineinger filed his self-represented PCR application on March 7, 2019,

which alleged a lack of evidence, an unreasonable sentence, and that he was not

advised by his trial counsel of the plea offer made by the State.

2 Wineinger’s 

appointed counsel filed an amended application.

3 Wineinger sent a letter to the 

judge dated April 7, 2019, which the court also deemed an amendment to the

application.4 The State answered the amended application. Trial was held on 

August 12, 2020.5 After counsel provided post-trial briefs, the court filed its ruling 

denying Wineinger’s application as amended.

 

1 Those claims were: (1) Failing to object to the introduction of the second video

on hearsay grounds; (2) not requesting a limiting instruction addressing interviewer 

Rolles’s questions during the video interview; (3) failing to object to court’s 

Instruction No. 15, which paraphrased Uniform Instruction 200.44; and (4) failing 

to object to Wineinger’s statements to L.L. as hearsay.

2 The plea offer called for Wineinger to plead guilty to two class “C” felony sex 

crimes with consecutive ten-year prison terms.

3

 The amended application asserted ineffective assistance of trial counsel in failing 

to depose two State’s witnesses: Rolles, the forensic interviewer, and Officer Brian 

Kernes, who first investigated the complaint; stipulating to the admission of the two 

videotaped forensic interviews into evidence; and failing to utilize an investigator. 

4 This amendment requested that Wineinger be permitted to accept the State’s 

earlier plea offer.

5 Wineinger waived his right to be present at the PCR trial.
5

In addition to several other issues not appealed, the PCR court addressed 

the ineffective-assistance claim related to the admission of the Project Harmony 

videos. The ruling identified those issues as “trial counsel’s agreeing to the 

admission of the second video, not objecting to the admission of the second video, 

not requesting a limiting instruction regarding the second video, not objecting to 

the video as hearsay, and not objecting to the court’s instruction to the jury on the 

video.” The court denied these claims, finding a lack of prejudice. 

Wineinger filed a timely notice of appeal on January 6, 2021. On appeal, 

Wineinger raises two issues: trial counsel’s failure to object to the admission of the 

second Project Harmony video and failing to request a limiting jury instruction 

regarding the videos. 

II. Standard of review.

We review ineffective-assistance-of-counsel claims de novo. Sothman v. 

State, 967 N.W.2d 512, 522 (Iowa 2021). “Ineffective-assistance-of-counsel 

claims require a showing by a preponderance of the evidence both that counsel 

failed an essential duty and that the failure resulted in prejudice.” State v. Lorenzo 

Baltazar, 935 N.W.2d 862, 868 (Iowa 2019) (citation omitted) To establish 

ineffective assistance of counsel, a claimant must show his counsel failed to 

perform an essential duty and prejudice resulted therefrom. Strickland v. 

Washington, 466 U.S. 668, 687 (1984).

III. Discussion.

On appeal, Wineinger limits his contentions. He claims his criminal trial 

counsel was ineffective, first, for agreeing to the admission of both forensic videos

and, second, in failing to object to the admission of the second video on hearsay 
6

grounds. At the criminal trial, the court did not rule on the videos’ admissibility 

since it found defense counsel had agreed to their admission and deemed it too 

late during trial for counsel to withdraw from that agreement. In the PCR ruling, 

the district court found, even if there had been a hearsay objection, the second 

video would have been admissible under the residual exception found in Iowa Rule 

of Evidence 5.807(a) and, thus, Wineinger suffered no prejudice from his attorney’s 

failure to object. In this appeal, Wineinger challenges that ruling.

In two recent Supreme Court opinions, filed after the briefs were submitted 

in this case, the court analyzed the admissibility at trial of a video-recorded forensic 

interview of a child sex abuse victim. See State v. Fontenot, 958 N.W.2d 549 (Iowa 

2021); State v. Skahill, 966 N.W.2d 1 (Iowa 2021).

In Skahill, the court stated:

We review evidentiary rulings on hearsay for errors at law. 

State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021); see also State 

v. Veverka, 938 N.W.2d 197, 202 (Iowa 2020) (“Our review of the 

district court’s ruling on a preliminary question of admissibility is for 

the correction of legal error.”). We review for errors at law because 

“a district court ‘has no discretion to admit hearsay in the absence of

a provision providing for it.’” Veverka, 938 N.W.2d at 202 (quoting 

State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003)).

966 N.W.2d at 8. We apply this standard to determine whether, applying either 

Fontenot or Skahill, the objection would have been overruled if Wineinger’s trial 

counsel had posed a hearsay objection.

6

 

6 We are not restricted to the district court’s decision based on the residual hearsay 

exception. If the hearsay objection would have been overruled as either a prior 

consistent statement or under the residual exception, then Wineinger suffered no 

prejudice and his claim fails. See Fontenot, 958 N.W.2d at 555 (“Although it is 

unclear from the record exactly which rule the district court relied on in determining 
7

In Fontenot, the supreme court found a child sex abuse complainant’s 

video-recorded forensic interview was admissible as a prior consistent statement

when the defendant asserted at trial that the witness had recently fabricated her 

trial testimony. Iowa Rule of Evidence 5.801(d)(1)(B) provides that a prior 

statement is not hearsay and is admissible as substantive evidence if:

[t]he declarant testifies and is subject to cross-examination about a 

prior statement, and the statement: . . . [i]s consistent with the 

declarant’s testimony and is offered to rebut an express or implied 

charge that the declarant recently fabricated it or acted from a recent 

improper influence or motive in so testifying.

In Skahill, the court discussed the residual hearsay exception. 

The residual exception to the hearsay rule provides,

[A] hearsay statement is not excluded by the rule against 

hearsay even if the statement is not specifically covered by a hearsay 

exception in rule 5.803 or 5.804 [if]:

(1) The statement has equivalent circumstantial guarantees of 

trustworthiness;

(2) It is offered as evidence of a material fact;

(3) It is more probative on the point for which it is offered than 

any other evidence that the proponent can obtain through 

reasonable efforts; and

(4) Admitting it will best serve the purposes of these rules and 

the interests of justice.

Iowa R. Evid. 5.807(a).

966 N.W.2d at 10.

The requirements of the residual exception can be 

summarized as “trustworthiness, materiality, necessity, service of the 

interests of justice, and notice.” State v. Rojas, 524 N.W.2d 659, 

662–63 (Iowa 1994). These are not factors to be weighed; all five 

requirements must be satisfied. State v. Weaver, 554 N.W.2d 240, 

247 (Iowa 1996), overruled on other grounds by State v. Hallum, 585 

N.W.2d 249, 254 (Iowa 1998). Skahill challenges the district court’s 

determination that the necessity and interests-of-justice

requirements were met.

 

the video was admissible, this does not prevent us from upholding the district 

court's admission of the video if it was properly admissible on any ground.”).
8

Id.

The supreme court in Skahill then focused on the “necessity” requirement. 

It noted two previous Iowa cases most directly on point, Rojas, 524 N.W.2d, and 

State v. Neitzel, 801 N.W.2d 612 (Iowa Ct. App. 2011), which provided examples 

of when admission of a hearsay video interview was a necessity. In Rojas, the

video interview was admitted under the residual exception when a ten-year-old girl 

recanted her prior accusations during her trial testimony. 524 N.W.2d at 663–64. 

In Neitzel, our court held that a video interview was admissible under the residual 

exception when the complaining witness was ten years old and could no longer 

remember the abuse she had suffered when she was seven. 801 N.W.2d at 617.

The court also discussed the Fontenot case, stating: “We determined the CPC 

interview video was admissible as a prior consistent statement once defense 

counsel had attempted to impeach the child’s credibility on cross-examination to 

show she had changed her story.” Skahill, 966 N.W.2d at 13. Thus, Fontenot was 

not decided on the residual exception rule. Id.

The court then stated: “While the present case differs in many respects, the 

underlying principle of our decision is the same: when the same evidence is 

available through in-court testimony, hearsay statements are generally not 

necessary under the residual exception.” Id. at 13–14. In Skahill, since the child 

testified at trial, the supreme court found the necessity requirement was not met 

and the video recorded statement was not admissible under the residual exception 

to hearsay. Id. at 15. 
9

We conclude that Fontenot and the prior consistent statement exception in 

rule 5.801(d)(1)(B) would have allowed admission of the second video. It is clear 

from the criminal trial record that Wineinger’s counsel’s trial strategy was to cast 

doubt on L.L.’s credibility by presenting evidence about her giving two inconsistent 

recorded interviews—the first being a denial that Wineinger committed sex abuse 

and the second that he did. The second interview was consistent with L.L.’s trial 

testimony and was admissible under Iowa Rule of Evidence 5.801(d)(1)(B). Thus, 

Wineinger suffered no prejudice.

We next address Wineinger’s argument his trial attorney was ineffective in 

failing to ask for a limiting instruction. The State contends Wineinger failed to 

preserve error on this issue. Wineinger himself admits the issue was mentioned 

only briefly in his application, and the district court did not consider or rule on it. In 

reply briefing, he attempts to raise the issue as ineffectiveness of PCR counsel. 

But we do not address arguments raised for the first time in a reply brief. Villa 

Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). Nor can we consider any 

issue that was neither raised before nor decided by the PCR court. See Meier v. 

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We find he failed to preserve error 

on this claim. So, we affirm the denial of his application. 

AFFIRMED.