Bowen v. State, No. 8-315/07-0808 (Iowa App. 10/1/2008), No. 8-315/07-0808

CourtCourt of Appeals of Iowa
Writing for the CourtMiller
PartiesREECE BOWEN, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
Decision Date01 October 2008
Docket NumberNo. 8-315/07-0808

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REECE BOWEN, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
No. 8-315/07-0808
Court of Appeals of Iowa.
Filed October 1, 2008

Appeal from the Iowa District Court for Dubuque County, John Bauercamper, Judge.

Reece Bowen appeals from the district court's denial of his application for postconviction relief following his conviction for sexual abuse in the third degree. AFFIRMED.

Jon J. Bishop, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, Meredith Friedman, Intern, Ralph Potter, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Miller and Potterfield, JJ.

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Reece Bowen appeals from the district court's denial of his application for postconviction relief following his conviction for sexual abuse in the third degree. We affirm.


From the evidence presented at trial of the underlying criminal charge against Bowen, the jury could have found the following facts. In October 2002, Bowen called then thirteen-year-old S.C. and asked her to babysit for his infant daughter. S.C. knew Bowen through his nieces, C.J. and M.J., who were her friends. Bowen offered S.C. fifty dollars for twenty minutes of babysitting. Once at Bowen's house, S.C. was put to work moving boxes, not babysitting. Bowen then asked S.C. to vacuum his bedroom. As she finished vacuuming Bowen confronted her in his bedroom, closed the door, locked it, and removed his clothes from the waist down. Bowen, who had an erection, put S.C. on the bed, took her clothes off, and forced vaginal intercourse. S.C. stated that she screamed and cried for him to stop. After Bowen was done he told S.C. to get dressed and go home. He threatened to kill her if she told anyone what he did.

S.C. did not tell her mother about the incident for several weeks because of her fear of Bowen. When she did finally tell her mother she made her promise not to tell anyone else. In June 2004, during an office visit to her pediatrician regarding her irregular periods, S.C. told her doctor that she had been raped. Dr. Julie Hanson reported the crime to the police who investigated Bowen.

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The State charged Bowen, by trial information, with sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(b) (2003). A jury found Bowen guilty as charged. Bowen appealed his conviction, claiming there was insufficient evidence to support his conviction and the trial court used an improper standard in denying his motion for new trial. He also claimed his trial counsel was ineffective for failing to, among other things, object to portions of Corporal Thomas Schaefer's testimony, object to prosecutorial misconduct in closing arguments, and adequately argue a motion for judgment of acquittal. In affirming Bowen's conviction, this court concluded the conviction was supported by substantial evidence and rejected his claims of ineffective assistance with regard to his motion for judgment of acquittal. State v. Bowen, No. 05-0878 (Iowa Ct. App. April 12, 2006). We preserved all of his other ineffective assistance claims for a possible postconviction proceeding. Id.

Bowen filed an application for postconviction relief on May 26, 2006. In his application he alleged his trial counsel failed to (1) adequately consult with him concerning possible defenses, trial strategy, plea arrangements, penalties, and other matters, (2) object to hearsay testimony, (3) object to "expert testimony" by Corporal Schaefer, whom he asserted was not an expert, and (4) object to prosecutorial misconduct during closing arguments. A hearing was held on the application and the district court entered a ruling rejecting Bowen's claims and dismissing his application for postconviction relief.

On appeal Bowen claims the district court erred in denying his application because his trial counsel was ineffective for failing to object to (1) hearsay

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testimony by Corporal Schaefer, (2) "expert testimony" by non-expert Schaefer, and (3) prosecutorial misconduct during closing arguments.


We typically review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts a claim of constitutional nature, such as ineffective assistance of trial counsel, we evaluate the totality of the circumstances in a de novo review. Id.


A person claiming he or she received ineffective assistance of counsel must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted from the error. State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004). To prove the first prong, failure to perform an essential duty, the person must overcome a strong presumption of counsel's competence and show that under the entire record and totality of circumstances counsel's performance was not within the normal range of competency. Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). To prove the second prong, resulting prejudice, the person must show that counsel's failure worked to the person's actual and substantial disadvantage so there exists a reasonable probability that but for counsel's error the result of the proceeding would have been different. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). On appeal we may affirm a rejection of an ineffective-assistance-of-counsel claim if proof of either element is lacking. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).

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A. Hearsay Testimony.

Corporal Thomas Schaefer of the Dubuque Police Department investigated the sexual abuse complaint on the day Dr. Hanson reported it. During his trial testimony Schaefer testified about his interview with S.C. and how he got her to pinpoint the time frame within which the abuse occurred, because she was initially unsure whether it had occurred in 2002 when she was in seventh grade, or in 2003 when she was in eighth grade. Bowen challenges as hearsay the following testimony by Schaefer on direct examination:

Q. Okay. At the time that you spoke with [S.C.], what in general did she tell you happened?

. . . .

A. Okay. She reported to me that at an earlier age, she was sexually assaulted at 790 West Locust Street, the residence of Reece Bowen.

Q. Okay. And in the course of speaking with her, what if anything did you determine concerning the date? A. As we attempted to refine the date, she could associate the fact that it occurred when she was in the seventh grade, because she remembered that she would have had Mrs. Loeffelholz as her teacher.

At trial in mid-December 2004 S.C. could not remember whether the sexual abuse had taken place in 2002 or in 2003. She testified she could not remember what she had told Corporal Schaefer about whether she had been in the seventh grade or in the eighth grade, and could not remember whether she had told him anything about her seventh grade teacher or her eighth grade teacher.

Bowen contends Schaefer's testimony was hearsay and was a "boon" to the State because S.C. could not pinpoint the date of the abuse. He argues that

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S.C.'s uncertainty about the date created a reasonable doubt that but for Corporal Schaefer's testimony would have led to an acquittal, as Schaefer's testimony provided the October 2002 date the State needed to establish its case.1

Generally if hearsay is admitted prejudice to the non-offering party is presumed unless the contrary is affirmatively established. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992) However, that prejudice will not be found where substantially the same evidence is in the record without objection and thus the challenged testimony is merely cumulative. Id. Initially we note that with the exception of his testimony about how S.C. was able to tell him what year the sexual abuse occurred by relating it to the specific teacher she had at the time, Schaefer's testimony was cumulative to other testimony produced without objection. S.C., her mother, and Dr. Hanson all testified to substantially the same facts as Schaefer regarding the circumstances surrounding and constituting the abuse. The great majority of Schaefer's testimony was merely cumulative and cannot be seen as at all prejudicial to Bowen.

In defending Bowen, trial counsel relied heavily upon inconsistencies concerning dates when the alleged sexual abuse occurred, as well as S.C.'s own vagueness and inability to specify when it occurred. This was one of several means counsel used to attack S.C.'s credibility. First, counsel cross-examined

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S.C.'s mother, Schaefer, and Dr. Hanson, pointing out S.C.'s uncertainty regarding the time of the crime and her identification of possible dates ranging from January 2002 to September 2003. Next, during his opening statement, which he had apparently reserved until immediately prior to presentation of Bowen's evidence, counsel emphasized the discrepancies in possible dates identified by S.C. Finally, defense counsel returned to this theme of differing and uncertain dates during his closing argument....

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