This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Jones County, Patrick R. Grady, Judge. A criminal defendant appeals from denial of his application for postconviction relief.
Philip Mears, Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General and Phil Parsons, County Attorney, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ.
Larry Dean Boring appeals from denial of an application for postconviction relief. In 2005, Boring was convicted by trial to the bench of sexual abuse in the second degree and lascivious acts with a child. He raises three issues on appeal: 1) trial counsel was ineffective in failing to object to evidence of allegations of sexual abuse by another child; 2) trial counsel was ineffective in failing to object to testimony regarding the victim's truthfulness; and 3) the cumulative effect of trial counsel's deficient performance was prejudicial. The district court rejected each claim and denied postconviction relief. We affirm.
I. Background Facts and Circumstances.
In summer 2004, Boring resided with his wife, Tracy, who is the mother of three children, B.S., S.S., and G.S. The children lived full-time with their father and stepmother, and had visitation in Tracy's and Boring's home on weekends. In October 2004, eleven-year-old S.S. reported to her stepmother that Boring had been touching her inappropriately during visitations. S.S. was interviewed by Child Protective Services. She also had a physical exam that revealed no evidence of sexual abuse. Ivan Eden, a Jones County Deputy Sheriff, and Larry Hedlund, a Division of Criminal Investigations agent, interviewed Boring.
In January 2005, the State charged Boring with sexual abuse in the second degree, sexual abuse in the third degree, lascivious acts with a child, and assault with intent to commit sexual abuse. The State later amended each count to include enhanced penalties for a prior " sexually predatory offense." Boring's case was tried to the bench on September 19 and 20, 2005.
At trial, S.S. testified that during the summer of 2004, Boring, Tracy, and the children regularly got into Boring and Tracy's bed and watched movies together in the evening. On one occasion, Tracy lay next to B.S. and G.S. sharing a blanket with them; S.S. lay next to Boring, sharing a blanket with him. S.S. testified that, while her mother and siblings were sleeping, Boring reached to the table at the side of the bed, applied " slippery stuff" to his fingers, and rubbed her vagina. When she told him it hurt and pushed her legs together, Boring grabbed her legs and pushed them apart. He told her, " Don't tell anybody." This conduct occurred repeatedly throughout the summer. On other occasions, Boring rubbed S.S.'s breasts and anus and placed her hand on his penis, which she testified was " firm." S.S. estimated Boring did one of more of these actions more than twenty times during the summer and fall of 2004.
Eden and Hedlund testified regarding their interview with Boring. They testified Boring denied having sexual contact with S.S., but repeatedly stated that if the contact had occurred, he did not remember it. Boring also repeatedly stated and admitted that S.S. was a truthful child and " not a liar." Boring described the bedroom setting of the assault similarly to S.S. with Tracy and Boring each having their own blanket and sharing with the three children.
Tracy testified on behalf of Boring. She stated S.S. had a friend, B.J., who had accused her stepfather, Joshua Woods, of sexually abusing her. Tracy believed Woods, not Boring, also molested S.S., and that S.S. was influenced or confused by B.J.'s experience. At the postconviction relief trial, Boring's trial counsel testified his strategy was to argue that although S.S. had been abused by Woods, she mistakenly or in confusion accused Boring. Tracy also testified she had never seen Boring touch the other children ...