from the Iowa District Court for Johnson County, Nancy A.
Banker appeals the district court's denial of his
application for postconviction relief. AFFIRMED.
A. Simmons, Bettendorf, for appellant.
J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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,
filed an application for postconviction relief, asserting his
trial attorney was ineffective in several respects. The
postconviction court denied Banker's claims following an
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.
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).
elect to resolve the issues under the Strickland
prejudice prong. We begin by examining whether Banker
established prejudice on each claim, then 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.
Ineffective Assistance of Counsel
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 ...