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Twigg v. State

Court of Appeals of Iowa

January 11, 2017

LARRY TWIGG, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.

         Larry Twigg appeals from the denial of his application for postconviction relief from his five convictions of lascivious acts with a minor. AFFIRMED.

          John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., Bower, J., and Scott, S.J. [*]

          POTTERFIELD, Presiding Judge.

         Larry Twigg appeals from the district court's denial of his application for postconviction relief (PCR) stemming from his five convictions of lascivious acts with a minor, in violation of Iowa Code section 709.14 (2009). On appeal, Twigg maintains the district erred in failing to find his second trial counsel ineffective for not obtaining for use at trial an interview transcript or alternatively, in failing to find that his postconvictio- relief counsel was ineffective for not obtaining a copy of the transcript. Additionally, he contends the trial court erred in ruling his second trial counsel did not provide ineffective representation in presenting Twigg's defense his conduct was "weird behavior" rather than "sexual behavior." After careful consideration, we affirm the district court.

         I. Background Facts and Proceedings.

         Twigg worked as a high school teacher in Waterloo. Beginning in December 2009, Twigg invited a seventeen-year-old student to his home to work on some outstanding homework assignments. Twigg told the student he could either complete the assignments or play a video game. Twigg explained the student would receive credit for an assignment for every level the student beat on the video game; the student was required to remove an article of clothing for each level lost.

         The student chose to play the video game. The student lost four levels and was wearing only boxer shorts when Twigg left the room momentarily. While he was alone, the student researched online how to beat the game. When Twigg later noticed the student's improved performance on the video game, the student admitted to cheating. Twigg then informed the student he would have to return to Twigg's home at a later date.

         The student returned to Twigg's home in January 2010, but the rules of the game had changed. During this interaction, if the student wished to avoid removing a piece of clothing, he could instead opt to complete an activity on a list provided by Twigg. The student played the video game and had to remove clothing. However, at some point, the student began selecting activities from the list. The first activity the student chose to complete was called "cold change." This required the student to go into Twigg's garage by himself to change into a different pair of boxers. The student also completed exercises wearing only a towel.

         Although the student eventually earned enough credit for the assignments, he still owed Twigg money for a cell phone bill Twigg apparently had paid for the student. Twigg offered to let the student work off the debt by completing more activities on the list. The student described the remaining activities as:

[S]ix boxers which . . . involve[d] me in only my boxers laying on the bed and receiving six spankings, three whoppers, which would involve me bending over the bed butt naked and getting three spankings. The snow angels, which basically involved me doing two snow angels in my boxers, one on my front and one on my back. And des[s]ert mix, which involved me getting into the bathtub and letting him pour pineapple sauce, chocolate sauce, eggs, flour, milk, and two different kinds of candy on me.

         The student completed the activities before Twigg drove him home. The student eventually told a few friends, who in turn told the high school ...


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