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Justin Adam Demoss v. State of Iowa

January 9, 2013

JUSTIN ADAM DEMOSS, APPLICANT-APPELLANT,
v.
STATE OF IOWA, RESPONDENT-APPELLEE.



Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon, Judge.

The opinion of the court was delivered by: Bower, J.

Justin Adam DeMoss appeals from the district court ruling denying his application for post-conviction relief. AFFIRMED.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.

Justin Adam DeMoss appeals from the district court ruling denying his application for post-conviction relief (PCR). He contends his trial counsel was ineffective in several regards. Because DeMoss has failed to demonstrate counsel breached an essential duty that prejudiced him, we affirm the denial of his PCR application.

I. Background Facts and Proceedings.

This case began when it was alleged that DeMoss, then twenty years old, had fondled the penis of an eleven-year-old child at least twelve times and performed anal sex with the child eleven times during April and May of 2005. The child reported the abuse to a school official, who contacted the Monroe County Sheriff. A forensic examination was performed on the child, and the child was interviewed.

DeMoss agreed to speak with law enforcement officers regarding the allegations and signed a waiver of his Miranda rights. During the interview, DeMoss stated he had heard rumors at work regarding things it was alleged he did to the child. DeMoss then admitted to fondling the child at least twelve times and engaging in anal sex ten or eleven times. DeMoss provided a signed, handwritten statement in which he confessed to engaging in anal sex and fondling the child. At that time, he was arrested.

In December 2005, DeMoss's original counsel moved to withdraw from the case and asked Hugh Michael Neary to assume DeMoss's representation. Neary agreed and was appointed to represent DeMoss. In April 2006, an ethics complaint was filed against Neary. He never informed DeMoss regarding the complaint.

Trial began on May 31, 2006. The child testified generally that the touching and anal sex had occurred but could not recall specifics about the dates or number of times these acts took place. Dr. Easter, who performed a sexual assault examination on the child, testified that he did not find any visual signs of sexual abuse on the child but that such visual signs were rare with anal penetration. However, Dr. Easter testified without objection that he "was convinced that indeed [the child] had been subjected to penetrating anal intercourse."

DeMoss testified in his own defense at trial and denied engaging in touching or sex acts with the child. He testified that he told the law enforcement officers about the rumors he hadd heard at work involving him and the child. He also testified that the officers made suggestions about what to write in his written statement. While DeMoss admitted to some details about his relationship with the child, as set forth in the written statement, he denied any sexual contact with the child. He testified that a letter he wrote to the child was an apology for kissing the child on the cheek.

On June 5, 2006, the jury found DeMoss guilty of eleven counts of second-degree sexual abuse and twelve counts of indecent contact with a child. DeMoss filed a motion for new trial, which the court denied. He was sentenced to an indeterminate term of imprisonment not to exceed twenty-five years on each count of second-degree sexual abuse and an indeterminate term of imprisonment not to exceed two years on each count of indecent contact with a child. The court ordered the sentences to run concurrently.

DeMoss appealed his convictions to this court, arguing there was insufficient evidence to convict him on all eleven counts of second-degree sexual abuse and twelve counts of indecent contact. State v. DeMoss, No. 06-1337, 2007 WL 2004513, at *2 (Iowa Ct. App. July 12, 2007). He also argued he was denied a fair trial when the judge asked whether identification evidence had been entered into the record, id. at *3, and appealed the portion of his sentence relating to a no-contact order. Id. at *4. This court affirmed his convictions but vacated the no-contact order and remanded for resentencing. Id.

On May 20, 2009, DeMoss filed a pro se PCR application alleging he received ineffective assistance of counsel. He filed an amended application on August 31, 2010. Following an August 25, 2011 hearing, the district court denied the application. ...


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