from the Iowa District Court for Johnson County, Sean W.
from the denial of an application for postconviction relief.
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
White was convicted of two counts of sexual abuse in the
third degree and sentenced to an indeterminate term of
incarceration not to exceed ten years. See State v.
White, No. 10-1875, 2013 WL 2371205, at *1 (Iowa Ct.
App. May 30, 2013). This court affirmed his conviction on
direct appeal. See id. at *2. White filed an
application for postconviction relief pursuant to Iowa Code
chapter 822 (2013), which the district court denied. White
timely filed this appeal.
appeal, White claims his trial counsel provided
constitutionally ineffective assistance in two respects.
First, his counsel failed to interpose hearsay objections to
certain testimony. Second, after White's first trial
resulted in a hung jury, White's counsel changed trial
strategies in White's second trial. White contends the
change in trial strategy was unreasonable.
court reviews ineffective-assistance-of-counsel claims de
novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa
2012); Collins v. State, 588 N.W.2d 399, 401 (Iowa
1998). To prevail on his claim, White must show (1) that
"his attorney's performance fell outside a normal
range of competency," and (2) he was prejudiced as a
result of his attorney's ineffectiveness. Jones v.
State, 545 N.W.2d 313, 314 (Iowa 1996). Prejudice exists
when, "but for counsel's errors, the result of the
proceeding would have been different." Id. at
novo review, we conclude the district court did not err in
denying White's application for postconviction relief
with respect to the first claim because the statements were
not hearsay. The challenged testimony consisted of imperative
statements and/or statements not offered for the truth of the
matter asserted. See Iowa R. Evid. 5.801(c)
(defining hearsay); State v. Leonard, 243 N.W.2d
887, 890 (Iowa 1976); Holland v. State, 713 A.2d
364, 370 (Md. Ct. Spec. App. 1998); State v. Leroux,
965 A.2d 495, 503-04 (Vt. 2008). Instead, the statements were
offered to establish the statements were uttered, whether
true of false, and to explain responsive conduct. See
State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990)
("When an out-of-court statement is offered, not to show
the truth of the matter asserted but to explain responsive
conduct, it is not regarded as hearsay."); State v.
Watson, 242 N.W.2d 702, 705 (Iowa 1976) ("The
statement was not hearsay because it was not intended to
prove the truth of any fact. The statement itself had no
element of truth or falsity. It could prove nothing except
its own utterance."). Counsel thus had no duty to object
to the evidence. See State v. Lopez, 872 N.W.2d 159,
169 (Iowa 2015) (noting counsel does not breach a duty by
failing to raise a meritless objection); State v.
Gresham, No. 12-2231, 2014 WL 69780, at *4 (Iowa Ct.
App. Jan. 9, 2014) ("Counsel has no duty to raise a
meritless objection."). Furthermore, White has not
established constitutional prejudice. See State v.
Schneider, No. 14-1113, 2015 WL 2394127, at *7 (Iowa Ct.
App. May 20, 2015). There is no reasonable likelihood the
jury would have reached a different result if counsel had
made an objection to the statements.
background is necessary to resolve the second claim. In
White's first trial, White tried to show the complainant
had motive to file a false report because White had reported
to the complainant's employer that she stole items from
work (a theft with which White was involved). That trial
resulted in a hung jury. In the second trial, White's
counsel changed strategies. Counsel did not present any
evidence of the theft. Instead, counsel argued White and the
complainant were engaged in consensual sex and she asked
White to choke her-a practice known as erotic breath control.
An expert witness testified that erotic breath control
carries a social stigma and that those who practice it are
often self-conscious of their behavior. Under counsel's
theory of the case, the complainant was afraid other people
might notice visible bruising around her neck and question
the source of that bruising. As a result, the complainant
filed a false report to preemptively explain the bruising and
avoid admitting she practiced erotic breath control. White
claims this change in trial strategy was constitutionally
novo review, we conclude the district court did not err in
denying the application for postconviction relief with
respect to this claim. "'Improvident trial strategy
or miscalculated tactics' typically do not constitute
ineffective assistance of counsel." State v.
Polly, 657 N.W.2d 462, 468 (Iowa 2003) (quoting
State v. Oetken, 613 N.W.2d 679, 683-84 (Iowa
2000)); accord State v. Cromer, 765 N.W.2d 1, 8
(Iowa 2009); Wemark v. State, 602 N.W.2d 810, 814
(Iowa 1999); State v. Wright, No. 10-1330, 2011 WL
2041578, at *1 (Iowa Ct. App. May 25, 2011); Gully v.
State, 658 N.W.2d 114, 120 (Iowa Ct. App. 2002). The
question is whether "counsel's performance fell
below the normal range of competency." Cromer,
765 N.W.2d at 8 (quoting State v. Horness, 600
N.W.2d 294, 298 (Iowa 1999)). "When counsel makes a
reasonable decision concerning strategy, we will not
interfere simply because the chosen strategy is
unsuccessful." State v. Losee, 354 N.W.2d 239,
243 (Iowa 1984). White's attorney testified he altered
his strategy at the second trial because his original
strategy did not result in White's acquittal.
Furthermore, introducing evidence of the theft painted White
in a bad light because White was complicit in the theft.
White's attorney believed altering the trial strategy
would provide a motive for the complainant to falsely accuse
White of rape while preserving White's credibility.
Although counsel's strategy did not result in an
acquittal, it was a considered choice.
these reasons, we affirm the judgment ...