January 11, 2017
LARRY TWIGG, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Black Hawk County, Jon C.
Twigg appeals from the denial of his application for
postconviction relief from his five convictions of lascivious
acts with a minor. AFFIRMED.
C. Heinicke of Kragnes & Associates, P.C., Des Moines,
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.
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.
Background Facts and Proceedings.
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.
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.
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.
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
[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.
student completed the activities before Twigg drove him home.
The student eventually told a few friends, who in turn told
the high school principal. The incidents were reported to the
the investigation in January 2010, school administrators and
police officers interviewed Twigg, who admitted to the
incidents described by the student. Twigg explained he
"thought this was a way to motivate the student to do
better." He further apologized and said "this is a
stupid thing I did. It was a mistake, and I am sorry."
Twigg was arrested, and two other former students emerged
with similar allegations against Twigg.
State charged Twigg by trial information with six counts of
lascivious acts with a minor. Five of those charges related
to the current student, and one count related to one of the
former students. No charges were filed concerning the other
former student, who was not a minor when the acts were
allegedly committed. The State eventually dismissed the
charge concerning the former student but relied on that
student's testimony at trial on the remaining five
jury found Twigg guilty; however, that conviction was
reversed in State v. Twigg, No. 11-0733, 2012 WL
3590045 (Iowa Ct. App. Aug. 22, 2012), and the case was
remanded for a new trial.
case was retried in May 2013, and the jury again found Twigg
guilty on all five counts of lascivious acts with a minor
child. After an unsuccessful direct appeal,  Twigg filed an
application for postconviction relief on March 10, 2015. The
district court scheduled the PCR proceeding for October 5,
2015; however, the State filed a motion to dismiss the
application, claiming the issues raised in the application
had been previously adjudicated in the preceding two direct
appeals. The district court took the motion under advisement
and set it for hearing on the same day as the PCR proceeding.
The court then denied the
State's motion, and Twigg filed a motion to amend his
petition and an amended and substituted petition. Again, in
November 2015, Twigg moved to amend his application, which
the court granted. After being rescheduled several times, the
PCR proceeding was held on February 22, 2016.
PCR hearing, Twigg claimed his second trial counsel breached
an essential duty when he failed to obtain for use at trial a
transcript of the meeting that occurred with school officials
where Twigg confessed to the incidents. Although the police
and school officials denied recording the meeting,
Twigg's counsel at his first trial seemed to remember
seeing a transcript of that meeting; however, counsel was no
longer in possession of it. Twigg said he obtained the
transcript and gave it to his first attorney but did not keep
a copy of it. Twigg also contended his second trial counsel
was ineffective in his failure to fully develop his defense
that the acts were not sexually motivated. He alleges trial
counsel did not effectively examine or question the expert
witness who testified on his behalf at his second trial.
court dismissed Twigg's application in an order issued on
February 26, 2016. Twigg now appeals.
Standard of Review.
proceedings are law actions ordinarily reviewed for errors at
law." Bagley v. State, 596 N.W.2d 893, 895
review claims of ineffective assistance of counsel de novo.
See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa
2012). To prevail on a claim of ineffective assistance of
counsel, Twigg must prove by a preponderance of the evidence
(1) his attorney failed to perform an essential duty and (2)
prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We
"look to the cumulative effect of counsel's errors
to determine whether the defendant satisfied the prejudice
prong." State v. Clay, 824 N.W.2d 488, 500
(Iowa 2012). Twigg's claim will fail if either element is
lacking. See State v. Ambrose, 861 N.W.2d 550, 556
(Iowa 2015). Twigg must show "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694 (1984).
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
"[i]mprovident trial strategy, miscalculated tactics,
and mistakes in judgment do not necessarily amount to
ineffective assistance of counsel." State v.
Wissing, 528 N.W.2d 561, 564 (Iowa 1995). And
"strategic decisions made after 'thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable.'" Ledezma v.
State, 626 N.W.2d 134, 143 (Iowa 2011) (quoting
Strickland, 466 U.S.at 690).
first maintains the PCR court erred in finding his second
trial counsel was not ineffective for failing to obtain the
transcript from the January 2010 meeting between Twigg,
school administrators, and police officers. Alternatively,
Twigg contends his PCR counsel was ineffective in failing to
obtain the transcript. Twigg claims the transcript is
important as it contains impeachment evidence.
maintains a record of the meeting existed and had, at one
time, been in his possession. He claims to have received the
transcript from the Iowa Department of Education and then
maintains he turned over his only copy to his attorney at his
first trial. Twigg's attorney from his second trial
testified he contacted the first attorney about the
transcript. The first attorney apparently told the second
attorney that he remembered seeing something like what Twigg
described. However, the first attorney indicated he could not
locate the transcript in his office. The second attorney
contacted both prosecutors and the clerk's office to see
if they had a copy; however, no one did. Neither the first or
second prosecutor remembered anything like what Twigg
reached an impasse in the search for the transcript,
Twigg's second attorney deposed the individuals who
participated in the meeting with Twigg, namely, the school
officials and the two plain-clothes police officers.
Twigg's attorney asked each individual about whether the
interview with Twigg at the school had been recorded and if
the school was equipped to do such a recording. Everyone
testified that the meeting had not been transcribed or
contends that the transcript from this meeting would have
been useful to his defense in that it would show he never
made the statements he was alleged to have made in other
police reports and narratives. Specifically, Twigg testified
to two inaccuracies that allegedly could have been resolved
with the transcript. First, he claims he never admitted at
the meeting to paying "the student to strip down and
dress in a towel and do push-ups or sit-ups and so
forth." Second, he contends the transcript would show
that a certain school official was not present at the
meeting, despite testimony at trial that he was there.
de novo review, we find Twigg cannot prevail on his
ineffective-assistance claim. Twigg cannot prove that he was
prejudiced by his attorneys' failure to obtain a copy of
the transcript, if it existed. Neither of Twigg's
examples of potential inconsistencies demonstrates the
outcome of his trial would have been different if the
transcript were available. The complaining witness testified
at trial to the events Twigg denies admitting at the meeting.
Whether or not Twigg made the admission is not critical to
his defense he lacked sexual intent. And, it is unclear what
the significance is of the school official's presence or
absence at the meeting.
order to maintain a claim of ineffective assistance of
counsel for postconviction review, an applicant must make a
minimal showing by which this court can assess the viability
of the claim. See State v. Wagner, 410 N.W.2d 207,
215 (Iowa 1987). Twigg has not elaborated on his claims to
show how his counsels' inactions caused him prejudice.
His bald assertions they were ineffective are insufficient to
sustain his ineffective-assistance claims. See id.
Therefore, these claims fail.
found no prejudice, we need not consider the remaining
element. See Dempsey v. State, 860 N.W.2d 860, 868
(Iowa 2015) ("If we conclude a claimant has failed to
establish either of these elements, we need not address the
Expert Witness Claim
next contends his second trial counsel was ineffective for
failing to develop his defense that his behavior was
"weird" but was not sexual in nature. Specifically,
Twigg argues his trial counsel ineffectively examined the
forensic psychiatrist who testified for the defense to
explain the difference between "weird behavior" and
"sexual behavior." Twigg urges us to reverse the
convictions and remand the case for a new trial.
to trial counsel's testimony at the PCR proceeding, the
defense forensic psychiatrist administered several tests on
Twigg, which led the psychiatrist to opine at trial that
Twigg did not act with sexual intent and that some of the
acts he admitted to committing even suggested a lack of
sexual intent-a necessary element in the State's
case. Trial counsel further testified that
although the expert's demeanor did not come "off
terribly well, " he thought "his testimony was
fine" and that "unfortunately the nature of the
allegations was too much for the expert to overcome."
And when asked about why he chose to call this expert, trial
It was definitely-the focus was to say I know it looks sexual
and I think the expert even-we tried to take points where the
expert said we know this looks sexual, that's why
we're here in trial. Because it looks pretty sexual, but
it isn't sexual. You have to take my word for it. Well,
the jury didn't take his word for it. But that was really
[the] only the defense we had. I thought it was a decent
shot. It was difficult just because of the nature of the
facts, but from a legal perspective I thought it was
has not shown a different direct examination or presentation
of the expert witness might have changed the jury's
guilty verdict. Trial counsel advanced a defense he thought
might be successful, although the jury disagreed. Even if the
testimony from the expert had led the jury to conclude
Twigg's behavior was "weird, " there is nothing
to indicate they would not have also found his behavior to be
"sexual." The two notions are not necessarily
mutually exclusive. However, counsel made a tactical decision
to present a defense and obtained expert testimony in support
of the defense; Twigg has not shown in what respects
counsel's representation should have been different such
that our confidence in the outcome is undermined.
we find Twigg suffered no prejudice, we need not consider the
breach-of-an-essential-duty element of Twigg's claim.
See id. at 868.
foregoing reasons, we affirm the judgment of the district
court denying Twigg's application for postconviction
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2017).
 See State v. Twigg, No.
13-1094, 2014 WL 3747676 (Iowa Ct. App. July 30,
 Iowa Code section 709.14
It is unlawful for a person over eighteen years of age
who is in a position of authority over a minor to force,
persuade, or coerce a minor, with or without consent, to
disrobe or partially disrobe for the purpose of arousing or
satisfying the sexual desires of either of them.