IN THE COURT OF APPEALS OF IOWA
No. 15-0874
Filed June 15, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK LYNDON CARGILL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cedar County, Mark J. Smith,
Judge.
The defendant appeals his convictions for sexual abuse in the second
degree, contending his counsel was constitutionally ineffective. AFFIRMED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
Mark Cargill was convicted of three counts of sexual abuse in the second
degree, in violation of Iowa Code sections 709.1 and 709.3 (2013), one count of
assault with intent to commit sexual abuse, in violation of Iowa Code section
709.11, and one count of indecent contact with a child, in violation of Iowa Code
section 709.12. On appeal, he argues his counsel’s failure to object to
undifferentiated charges of sexual abuse in the second degree as set forth in the
trial information and presented to the jury in three carbon-copy marshaling
instructions violated his right to the effective assistance of counsel.
Claims of ineffective assistance of counsel are reviewed de novo. See
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To prevail on a claim of
ineffective assistance of counsel, Cargill must prove by a preponderance of the
evidence (1) counsel 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). To establish counsel failed to perform an essential duty, the defendant
must establish “the attorney performed below the standard demanded of a
reasonably competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). The attorney’s performance is measured against “prevailing professional
norms,” and it is presumed the attorney performed competently. See id. With
respect to the prejudice element, our ultimate inquiry is whether trial counsel’s
allegedly deficient performance caused a complete “breakdown in the adversary
process” such that the conviction is unreliable. See Strickland v. Washington,
466 U.S. 668, 687 (1984). This requires the defendant to establish “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
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the proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,
866 (Iowa 2012). The most important factor in determining whether the
defendant suffered prejudice is the strength of the State’s case. See State v.
Carey, 709 N.W.2d 547, 559 (Iowa 2006). If the defendant fails to establish
prejudice, the claim “can be decided on that ground alone without deciding
whether the attorney performed deficiently.” Ledezma, 626 N.W.2d at 142.
Cargill was charged by trial information with the five above-mentioned
counts on July 18, 2014. The first three counts in the trial information were
identical:
Comes now Jeffrey L. Renander, Assistant County Attorney
of Cedar County, State of Iowa, and in the name by the authority of
the State of Iowa accuses Mark Lyndon Cargill of the crime of
Sexual Abuse in the Second Degree committed as follows:
The said Mark Lyndon Cargill between June 1, 2011, and
June 15, 2014, in the County of Cedar and State of Iowa, in
violation of Sections 709.1 and 709.3 of the Iowa Criminal Code,
did commit sexual abuse upon K.A., a child under the age of 12.
Cargill contends the trial information did not provide him with notice of the
“particulars of the offense sufficiently to fairly enable him to prepare his defense.”
State v. Marti, 290 N.W.2d 570, 576 (Iowa 1980). He argues his counsel was
ineffective in failing to request a bill of particulars to clarify the nature of the
charges.
We conclude Cargill failed to establish ineffective assistance on his bill-of-
particulars claim. The minutes of testimony clearly articulate the particulars of
the five counts set forth in the trial information, including the three separate acts
supporting the three counts of sexual abuse in the second degree. See id.
(considering means other than an indictment for informing defendant of the
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charges). The minutes are specific as to locations, circumstances, and types of
physical contact. The minutes contain corroborating statements from family
members, police officers, and medical professionals. The trial testimony
delineated the specific acts supporting each of the counts. Cargill had adequate
notice of the charges against him, was able to prepare a defense, and was not
prejudiced by the failure to request a bill of particulars. See State v. Butler, 706
N.W.2d 1, 4 (Iowa 2005); State v. White, No. 12-1256, 2013 WL 4504896, at *4
(Iowa Ct. App. Aug. 21, 2013) (“The minutes of evidence detailed R.A.’s many
allegations of sex acts committed by White—supporting at least three counts of
sexual abuse in the second degree. If counsel had sought and the State had
provided a bill of particulars, White’s defense strategy would not have changed.
He did not raise an alibi defense. Rather, White outright denied inappropriately
touching R.A. in his interview with authorities and again denied doing so in his
trial testimony. White cannot show a reasonable probability of a different
outcome had his counsel urged more precision in the charging instrument.”); see
also May v. Ballard, No. 5:11CV82, 2012 WL 4356794, at *14 (N.D. W. Va. Sept.
24, 2012) (holding there was no due process violation where identical counts in
indictment were clarified by trial testimony).
Cargill next argues his counsel provided constitutionally deficient
representation in failing to object to the marshaling instructions for the three
counts of sexual abuse in the second degree. “Jury instructions are designed to
explain the applicable law to the jurors so the law may be applied to the facts
proven at trial.” Meck v. Iowa Power & Light Co., 469 N.W.2d 274, 276 (Iowa Ct.
App. 1991). Here, the marshaling instructions were materially identical:
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Under Count [_], the State must prove all of the following elements
of Sexual Abuse in the Second Degree:
1. Between June 1, 2011 and June 15, 2014, the defendant
performed a sex act with K.A.
2. The defendant performed the sex act while K.A. was under the
age of 12 years.
If the State has proved both of the elements, the defendant
is guilty of Sexual Abuse in the Second Degree. If the State has
failed to prove any one of the elements, the defendant is not guilty
under Count [_].
Cargill contends the undifferentiated instructions failed to provide the jury with a
clear understanding of the fact issues to be decided. Cargill further contends the
jury was not instructed they must find each count independent of each other,
leading to an “all or nothing case.” See Valentine v. Konteh, 395 F.3d 626, 634
(6th Cir. 2005). We have no way of knowing if the jury found Cargill three-times
guilty of one offense, he argues, violating his constitutional protections against
being convicted more than once for the same offense.
Cargill’s claim is controlled by State v. See, 805 N.W.2d 605, 606 (Iowa
Ct. App. 2011). In that case, the defendant made an ineffective-assistance claim
that counsel should have objected to three identical marshaling instructions
alleging identical sex crimes. The court there assumed without deciding See’s
counsel had breached an essential duty but determined See did not establish
prejudice. See See, 805 N.W.2d at 607 (citing Strickland, 466 U.S. at 694). In
reaching the conclusion that the defendant had not established prejudice, our
court reasoned that the minutes of testimony provided notice to the defendant he
was charged with three distinct types of acts of sexual abuse, the testimony at
trial described three separate incidents, the jury was instructed it should make a
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separate decision on each count, and the closing arguments placed the separate
acts into context as they related to each of the marshaling instructions. Id.
Cargill likewise has not proved he suffered constitutional prejudice. If trial
counsel had successfully objected to the marshaling instructions, the instructions
would have been amended to more specifically identify the specific acts related
to each count. As in See, however, there was no doubt regarding the separate
acts supporting each count of sexual abuse in the second degree. The minutes
of testimony clearly identified three separate acts supporting each count of
sexual abuse in the second degree. The prosecutor’s opening statement clearly
identified a separate incident supporting each of the counts. K.A.’s testimony
was structured around each of the incidents separately. She testified about one
incident in which Cargill stuck his hand down her pants and tried to insert his
fingers into her vagina. She testified about another incident in which Cargill
grabbed her hand and tried to force her to touch his penis. She also testified
about a third incident when Cargill placed a blanket over them on the couch and
forced his fingers into her vagina, which she testified “hurt really bad.” As in See,
the jury was instructed it should make a separate decision on each count. The
prosecutor’s closing argument again delineated the separate incidents and
placed them into context as they related to each count in the marshaling
instructions. Finally, the evidence supports each conviction, and there is no
reasonable probability of a different outcome. See White, 2013 WL 4504896, at
*4 (holding the defendant failed to establish prejudice where the jury was
provided with identical marshaling instructions but the testimony clearly identified
separate incidents supporting each count).
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We conclude Cargill has failed to establish his claim of ineffective
assistance of counsel. Cargill’s counsel did not breach an essential duty in not
requesting a bill of particulars where the minutes of testimony provided adequate
notice of the charges against him. Cargill also suffered no constitutional
prejudice as a result of not requesting a bill of particulars. Cargill suffered no
constitutional prejudice due to his trial counsel’s failure to object to the
undifferentiated marshaling instructions in this case. We reiterate our statement
in See that the better practice is for the district court to not provide
undifferentiated marshaling instructions. See See, 805 N.W.2d at 607. We
affirm the defendant’s convictions.
AFFIRMED.