IN THE COURT OF APPEALS OF IOWA
No. 18-0159
Filed February 20, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KEVIN JACOB MUEHLENTHALER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
Kevin Muehlenthaler appeals his convictions of three counts of sexual
exploitation by a school employee. AFFIRMED.
Joseph R. Cahill of Cahill Law Offices, Nevada, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Heard by Doyle, P.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Kevin Muehlenthaler appeals his convictions of three counts of sexual
exploitation by a school employee. Muehlenthaler contends his trial counsel was
ineffective in failing to object to: (1) the State’s misstatement to the jury about
Muehlenthaler’s plea; (2) testimony about Muehlenthaler’s alleged use of racially
insensitive comments; (3) the State’s questions which amounted to backdoor
hearsay; (4) expert testimony provided by a non-expert; (5) the State’s violation of
its own motion in limine; and (6) the State’s statements concerning Muehlenthaler’s
failure to testify or produce evidence. Muehlenthaler also claims the trial court
erred in admitting into evidence statements he made during a school investigation.
I. Background Facts and Proceedings
From the evidence presented at trial, the jury could find the following facts.
In the fall of 2013, Muehlenthaler was a part-time band instructor for the North Polk
School District. At that time, K.M. was a sixteen-year-old high school senior who
volunteered to assist Muehlenthaler with his band classes during her free periods.
Her duties included assisting with set up and lessons, providing accompaniment
on piano, grading papers, and assisting in a fundraiser. As the fall semester
continued, both began sharing personal information about themselves, including
family and home life. At some point in November, on a day K.M. was upset about
family issues, Muehlenthaler asked for permission and proceeded to hug K.M.
From that point on, Muehlenthaler would hug K.M. before she left his classroom
for the day. The relationship also included Muehlenthaler making jokes of a sexual
nature and divulging information about his sex life with his wife. Both parties then
began emailing each other. K.M. continued volunteering during the 2014 spring
3
semester, including volunteering extra hours and days. This resulted in K.M.
staying past the period she volunteered for and being late to her next class.
Muehlenthaler signed off on her tardy slips.
In either January or February 2014, Muehlenthaler invited K.M. to his house
after an evening basketball game, informing her that his wife would not be there.
On this occasion, they sat and laid on his couch with their clothes on, “spooning
and cuddling.” K.M. also met Muehlenthaler on Valentine’s Day in downtown
Ames to assist in delivering thank-you cards to businesses that had helped during
a school event. After handing out the cards, Muehlenthaler and K.M. sat in his car
and talked. On another occasion after Valentine’s Day, they met in a store parking
lot and cuddled in K.M.’s van. On this occasion, Muehlenthaler reached under
K.M.’s shirt and touched her breasts.
Muehlenthaler and K.M. text messaged one another frequently, including
sexual content.1 At some point in February, while in his classroom, Muehlenthaler
asked K.M. if she wanted to have sex. After agreeing, Muehlenthaler and K.M.
texted their plans on when and where they planned to have sex. Muehlenthaler
and K.M. met at a local motel. K.M. waited in her car as Muehlenthaler went in to
purchase a room. On that date, someone checked in under the name of P.S., the
name of K.M.’s classmate. This individual paid in cash and there is no record of
any identification provided to the motel employee. The motel’s policy is to not
provide a room without appropriate identification; however, a front desk clerk
testified that not all staff have followed this policy. K.M. testified this person was
1
The exact content of their text messages is not available, as the messages were deleted
and unrecoverable. K.M. testified as to the messages.
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Muehlenthaler. Muehlenthaler gave K.M. the room number after he checked in,
and they had sexual intercourse that night. K.M. identified that after Muehlenthaler
undressed, she noted that he wears an insulin pump on his right buttock,
something she could not see during the day while at school. Muehlenthaler is a
diabetic.
Muehlenthaler and K.M. had sexual intercourse several more times over the
course of the next few months, including at Muehlenthaler’s house. Their last
sexual encounter occurred in mid-July, by which time K.M. had graduated from
high school. Muehlenthaler ended the relationship, informing K.M. that he would
not be able to be with her anymore because his wife wanted to get pregnant. He
gave her a sex toy as a break-up gift to “replace him.” At all times during the sexual
relationship, Muehlenthaler was employed as a teacher at North Polk. Several
times during the relationship, Muehlenthaler told K.M. not to tell because he would
lose his job, lose his wife, and get into trouble.
K.M. first reported the relationship in 2016 after she began college and saw
a notice on social media that Muehlenthaler accepted a full-time position at a
different school district. She reported the relationship to her college professor, who
then made an anonymous third-party report to the principal of Muehlenthaler’s new
school. School officials from Muehlenthaler’s new district received the anonymous
report approximately two weeks after Muehlenthaler began working. The principal
and superintendent met with Muehlenthaler the morning of August 30 to inquire
about the anonymous report and asked Muehlenthaler if he had any information.
Muehlenthaler informed the officials that the report must be about his high school
helper and gave K.M.’s name. He informed the officials that he had become
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uncomfortable with the dynamic between himself and K.M. after she shared
personal information about herself and family. Muehlenthaler also indicated he
reported the situation to officials at North Polk. After the meeting, Muehlenthaler
returned to his classroom and taught for the remainder of the day. Ten minutes
before the official end of that school day, Muehlenthaler was informed he was
being placed on administrative leave pending the outcome of the school
investigation. During a formal interview on September 15, Muehlenthaler refused
to answer questions and was informed of his right to refuse to answer questions.
K.M. eventually spoke to the superintendent herself and ultimately to the
police. She also turned over the sex toy Muehlenthaler gave her to the police. In
March 2017, Muehlenthaler was charged by trial information with four counts of
sexual exploitation by school employee, in violation of Iowa Code section
709.15(5)(a) (2013).2 Prior to the trial in October, the State filed a motion in limine
seeking to exclude any evidence of K.M.’s sexual history, which the court granted.
During the hearing on the motion in limine, Muehlenthaler’s counsel sought the
exclusion of evidence of statements made by him to school officials during their
investigation into the allegations of an inappropriate student relationship, arguing
it would violate Garrity.3 The court granted the request in part, determining that
Muehlenthaler’s statements made to school officials after he was informed he
would be placed on administrative leave were to be excluded.
A jury found Muehlenthaler guilty as charged. Muehlenthaler filed post-trial
motions in arrest of judgment and for a new trial. He argued there was
2
Prior to trial, the State dismissed one count.
3
See generally Garrity v. New Jersey, 385 U.S. 493 (1967).
6
impermissible burden shifting and claimed insufficiency of the evidence. Further,
he argued the testimony of statements he made during a school investigation
violated Garrity. The court denied both motions, finding there was sufficient
evidence to establish the elements of the offenses, no shifting of the burden of
proof, and no Garrity violation.
The court sentenced Muehlenthaler on each count to an indefinite term of
incarceration not to exceed two years to run consecutively. His sentence also
included an order to register as a sex offender, placement on the sex offender
registry, and a ten-year special sentence pursuant to Iowa Code section 903B.2.
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Muehlenthaler must show counsel
“failed an essential duty and that the failure resulted in prejudice.” Id. at 206
(quoting State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016)). “[C]ounsel fails his
or her essential duty by ‘perform[ing] below the standard demanded of a
reasonably competent attorney.’” Id. (quoting Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001)). We presume “the attorney performed competently” and “we
avoid second-guessing and hindsight.” Ledezma, 626 N.W.2d at 142.
Muehlenthaler must also demonstrate “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 143 (quoting Strickland v. Washington, 466 U.S. 668, 964
(1984)).
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III. Analysis
A. Ineffective Assistance of Counsel
Muehlenthaler makes several claims of ineffective assistance of counsel.
We will address each in turn.
1. Opening Statement
First, Muehlenthaler contends counsel was ineffective for failing to object
and correct a prosecutor’s statement after reading the trial information to the jury.
A review of the record shows that before beginning its opening statement, the State
read the trial information against Muehlenthaler to the jury. After reading all of the
offenses charged, the State then stated, “To these charges Mr. Muehlenthaler has
entered a plea of guilty.” He contends that because his counsel failed to object or
correct this misstatement, it prejudiced the jury and he did not receive a fair trial.
“[A] criminal conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements or conduct must be
viewed in context; only by so doing can it be determined whether the prosecutor’s
conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11
(1985). “Inappropriate prosecutorial comments, standing alone, would not justify
a reviewing court to reverse a criminal conviction obtained in an otherwise fair
proceeding.” Id.
First, after the jury was selected in this case, the court explained to the jury
the sequence of events of the trial. It instructed the jury that the attorneys would
make opening statements but those statements were not evidence. The court
explained the State would read the trial information about the offenses charged
and, again, instructed the jury that the trial information was not evidence. The
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State then gave its opening statement. Defense counsel followed with an opening
statement that ended with him saying at the end of the evidence he would be
asking the jury to deliberate and “find Kevin not guilty of each and every count.”
After the close of the evidence, the court instructed the jury. Several jury
instructions clearly identify that the jury is the decision-making body of
Muehlenthaler’s guilt or innocence on each charge, Muehlenthaler is presumed
innocent, this presumption remained with him throughout the trial unless the
evidence established guilt beyond a reasonable doubt, and, most importantly,
Muehlenthaler pled not guilty to all charges. The instructions also reminded the
jury of the court’s earlier admonition that statements and comments by the
attorneys were not evidence and their verdict must be based upon the evidence
presented and the jury instructions.
However, on the record before us, we cannot determine why counsel did
not object to the misstatement of his not guilty plea, and thus cannot determine
whether counsel’s performance fell below that of reasonably competent counsel.
Likewise, the record is inadequate to decide the prejudice issue. Consequently,
we preserve the claim for possible postconviction-relief proceedings.
2. Defendant’s past racial statements
Muehlenthaler next contends trial counsel failed to object to testimony from
K.M. that Muehlenthaler made racially insensitive comments to her about students
at the school. Muehlenthaler claims the testimony was highly prejudicial and
inadmissible character evidence which should have resulted in counsel moving for
a mistrial.
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A review of the record shows that during K.M.’s direct examination, after
being asked about the nature of the jokes Muehlenthaler made while joking around
with her, K.M. testified:
And he also said some jokes that made me feel kind of
uncomfortable, like when one of the kids who played trumpet, we
were having a lesson, and he said that he was sad because his dad
was moving back to Mexico, and then when he left the room he
snickered and said that his dad was getting deported. And he also
told me that when he was in college him and one of his friends would
go to KFC and make fun of the black people, and generally just a lot
of jokes that I thought were kind of really inappropriate and kind of
immature.
Defense counsel did not object.
Iowa Rule of Evidence 5.404(b)(1) prohibits the admission of “[e]vidence of
a crime, wrong, or other act . . . to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.” To
determine if evidence is admissible under rule 5.404(b), it must meet a three step
analysis:
(1) the evidence must be relevant and material to a legitimate
issue in the case other than a general propensity to commit wrongful
acts;
(2) there must be clear proof the individual against whom the
evidence is offered committed the bad act or crime; and
(3) if the first two prongs are satisfied, the court must then
decide if [the evidence’s] probative value is substantially outweighed
by the danger of unfair prejudice to the defendant.
State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004).
Based upon our review of the record, we find it inadequate to address this
claim on direct appeal. We preserve this claim to allow the parties to develop the
record as to why defense counsel did not make a record on this issue and
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“as to any prejudice which may or may not have resulted from trial counsel’s
actions.” State v. Shanahan, 712 N.W.2d 121, 143 (Iowa 2006).
3. Failure to object to “backdoor” hearsay
Muehlenthaler also claims trial counsel was ineffective for failing to object
to the State’s questioning of several witnesses that amounted to “backdoor”
hearsay. Further, he contends trial counsel failed to seek any curatives to the
hearsay, either by requesting an admonishment or instruction to the jury to
disregard the testimony, or by moving for a mistrial.
A “backdoor hearsay” problem occurs when a “question and answer [does]
not produce hearsay ‘in the classic or textbook sense,’ [but] the questioning
nevertheless [is] designed to circumvent the hearsay rule and present the jury with
information from unsworn, out-of-court sources.” State v. Huser, 894 N.W.2d 472,
497 (Iowa 2017) (quoting Schaffer v. State, 721 S.W.2d 594, 597 (Tex. App.
1986)). While “the form of [a] question [does] not literally require the jury to infer
the subject matter . . . the use of the ‘don’t tell me what [the other person] said’
questioning directly after [the witness] testified about the [communication] was
designed to encourage the jury to make the connection.” Id. “The state ‘is not
permitted by means of the insinuation or innuendo of incompetent and improper
questions to plant in the minds of the jurors a prejudicial belief in the existence of
evidence which is otherwise not admissible and thereby prevent the defendant
from having a fair trial.’” Id. (quoting State v. Carey, 165 N.W.2d 27, 32 (Iowa
1969)).
During the trial, the State did not offer the testimony of Donna Spence or
Mary Schmiltz, two school officials Muehlenthaler claimed to have spoken with
11
about his concerns regarding K.M. The State did call Paula Wright, superintendent
of the school district where Muehlenthaler began teaching in 2016. During direct
examination of Wright, the State elicited the following:
[STATE]: And you stated that he informed you that she was
acting weird. Did he elaborate on that any further with you?
[WRIGHT]: I asked him what “weird” meant, what that was,
and he said that she was trying to get close to him, that she would
share personal information with him that he was uncomfortable with.
I asked him if he told anyone about that, and he indicated he had
spoken with his principal Donna Spence about it.
[STATE]: And were you—did you look into what he claimed or
who he claimed to have told these things to?
[WRIGHT]: Not that day, but later, yes.
[STATE]: Were you ever able to substantiate his claims that
he had reported inappropriate behavior to anyone at North Polk?
[WRIGHT]: When I spoke with Donna Spence on the phone
she didn’t indicate—
[DEFENSE COUNSEL]: Objection, Your Honor. Hearsay.
THE COURT: The objection’s sustained.
[STATE]: That’s okay. Without saying what anyone told you,
were you ever able to substantiate his claims?
[WRIGHT]: No.
[STATE]: And did the two of you speak about anything else at
that time?
[WRIGHT]: We continued with the conversation. I asked him
if anybody else knew, if he had talked to anybody else, and he
indicated that he’d talked to Mary Schmiltz, and I’m sorry I probably
pronounced her name wrong, she was his mentor teacher. And I
asked what was their advice, and he said to keep the door open and
to keep things public, and to avoid the situation.
[STATE]: And again, were you ever able to substantiate that
claim he had reported to Ms. Schmiltz?
[WRIGHT]: No.
The defense made no other hearsay objections to Wright’s testimony and
made no motions.
As to Wright’s testimony about Donna Spence, the State’s initial question
of “Were you ever able to substantiate his claims” was asking for a yes or no
answer. However, the witness answered with more information than what was
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asked. After the court sustained the hearsay objection, the State repeated its
question but added in “[w]ithout saying what anyone told you.” Whether this
resulted in backdoor hearsay is a close question. Thus, any analysis of counsel’s
effective assistance on this issue requires further record. We preserve this issue
for possible postconviction-relief proceedings.
Muehlenthaler also points to other testimony given by Wright which involved
her conversation with K.M.:
[STATE]: Okay. After you spoke with her, without saying what
she said, did you try to verify details that you had received from
[K.M.]?
[WRIGHT]: After I spoke with her I did try to verify some details
that she gave me.
[STATE]: What did you try to verify?
[WRIGHT]: His employment with Steve’s Mobile Music.
Wright then proceeded to testify as to the steps of verifying his employment. This
led the State to offer a printout of the webpage of Steve’s Mobile Music, which
included Muehlenthaler’s email address at this job. As to this testimony, we find
no prejudice, as K.M. had already testified about Muehlenthaler’s employment at
Steve’s and his use of an email address through this employment.
Muehlenthaler also makes a claim of backdoor hearsay in the questioning
of Daniel Mart. During his testimony, the State elicited the following: “Q. Yes, sir.
To your knowledge, Dr. Mart, did the defendant ever make a report to the school
about problems with [K.M.]? A. Not to my knowledge.” We find his negative
testimony was not backdoor hearsay. See State v. Don, 318 N.W.2d 801, 806
(Iowa 1982); see also State v. Kern, 307 N.W.2d 22, 26 (Iowa 1981).
13
4. Bolster credibility of complainant
Muehlenthaler also argues his trial counsel was ineffective in failing to
object to backdoor hearsay, which he contends was elicited to bolster K.M.’s
credibility. He points to two witness exchanges with Wright and Detective Suzanne
Owens, the lead investigator in the case. During the State’s direct examination of
Wright, the following testimony was offered:
[STATE]: And without again saying what she told you, were
you able to get more details about the situation that occurred?
[WRIGHT]: Yes. I received quite a few details.
[STATE]: Each of the three times that you spoke with [K.M.],
was she consistent in her story and the details?
[WRIGHT]: Yes.
During Detective Owen’s direct examination, the following testimony was offered:
[STATE]: Detective Owens, during the course of your
investigation, how many opportunities did you have to speak with
[K.M.]?
[DETECTIVE OWENS]: I think I spoke to her several times.
Most—after the first interview, most of them were just short phone
calls.
[STATE]: You indicated to us you also had the opportunity to
review a statement she had typewritten; is that correct?
[DETECTIVE OWENS]: Yes.
[STATE]: Did you review any of the statements that she had
provided to the school?
[DETECTIVE OWENS]: Yes.
[STATE]: During the course of your investigation, was [K.M.]’s
statements consistent?
[DETECTIVE OWENS]: Yes.
Counsel should be given an opportunity to respond. This issue is preserved
for possible postconviction-relief proceedings.
5. DNA evidence
Muehlenthaler also claims his counsel failed to object to expert testimony
provided by a non-expert. He contends Detective Owens provided expert
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testimony about the characteristics and destructibility of blood and DNA evidence
when she was not an expert in the field of DNA or blood evidence. The State
contends the detective’s eighteen years of experience in law enforcement,
including ten years as a detective, her work with DNA in many sexual abuse and
assault investigations, and her training qualify her to testify about factors she
considered in determining whether or not to attempt to collect evidence.
Detective Owens testified on direct examination by the State that in the
course of her investigation of the allegations against Muehlenthaler, she did not
believe she would find any DNA evidence in Muehlenthaler’s house given the
amount of time, two to three years, since K.M. alleged sexual acts between her
and Muehlenthaler occurred in the house. She testified during the defense’s cross-
examination that she did not try to find any of Muehlenthaler’s DNA on a sex toy
provided by K.M. as an alleged gift from Muehlenthaler. She further testified that
she received information in her investigation about K.M. bleeding on
Muehlenthaler’s couch while on her period but did not seek a search warrant to
look for such evidence. Defense counsel asked:
Knowing that there might possibly be blood DNA, which is not easily
destroyed, did you when you got a search warrant for the
Muehlenthalers’ home have specialists come in from either your
department or the DCI to at least look and see if there was any
evidence to corroborate her story?
Detective Owens responded to this question with “no.” On redirect, Detective
Owens testified she worked specifically with DNA many times over her years in
law enforcement and that it can be destroyed with the difficulty of destruction
depending on the situation. The State then elicited testimony about different ways
DNA could be destroyed, including cleaning products, the weather, and by touch.
15
Detective Owens then clarified her earlier testimony that it was possible DNA could
have been found on the couch but she did not know whether she would find it if
K.M. had wiped it up immediately. Further she testified that based upon her
training and experience, wiping up DNA could destroy it.
Expert testimony is permitted if it consists of “scientific, technical, or other
specialized knowledge [which] will help the trier of fact to understand the evidence
or to determine a fact in issue.” Iowa R. Civ. P. 5.702. “[K]nowledge, skill,
experience, training, or education” may qualify a witness as an expert. Id. There
is “no precise rule [that] governs how a witness may acquire the requisite
qualifications.” State v. Belken, 633 N.W.2d 786, 800 (Iowa 2001). The supreme
court has adhered “to a liberal view on the admissibility of expert testimony.”
Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997).
No DNA was actually tested in this case, and the State’s case against
Muehlenthaler did not rest on any DNA evidence implicating him. Further,
Muehlenthaler’s counsel’s cross-examination of Detective Owens sought to
undermine the police investigation and highlight that the detective failed to seek
out all avenues of evidence as to multiple issues, including following up with
questions about the couch, the sex toy, and even with the P.S. individual identified
as the person who checked into the hotel. With regard to the DNA evidence,
defense counsel accomplished this by getting Detective Owens to admit there
could have been evidence on the couch K.M. described but she did not have it
tested. The State was entitled to redirect examination of the detective to
rehabilitate the witness. The State’s examination was properly within the scope of
the subject matter addressed by the defense cross-examination. To the extent her
16
testimony might be considered expert testimony, it was based on her training and
experience and was limited in scope to respond to the defense’s cross-
examination. Her testimony was admissible but subject to challenge as to the
weight to be accorded to the testimony. Counsel was not ineffective in failing to
challenge expert testimony.
6. Violation of motion in limine
Muehlenthaler also contends the State violated its own motion in limine
prohibiting both parties from asking K.M. about any other sexual partners. Before
the trial started, the court ruled on a number of motions in limine. In the State’s
motion, it requested that any evidence regarding K.M.’s past sexual history or other
sexual partners be prohibited. The court granted the State’s motion “to the extent
that unless we have a hearing outside the presence of the jury, the parties are
prohibited from asking the alleged victim about other sexual partners and sexually
transmitted diseases.” During the defense’s opening statement, defense counsel
referred to P.S. and related to the jury that a person checked into a motel under
that name on the night K.M. alleged she met and had sex with Muehlenthaler at
the motel. He explained that P.S. was K.M.’s classmate. During both direct and
cross-examination of K.M., the State and defense asked who P.S. was and how
K.M. knew him. On re-cross, the State asked:
[STATE]: [K.M.], you were asked a moment ago too about
[P.S.]. [Defense Counsel] asked you about him being a track star
and well known in the school. Was he really well known?
[K.M.]: I—
[DEFENSE COUNSEL]: I guess objection, Your Honor. Calls
for speculation.
THE COURT: It’s overruled.
17
[K.M.]: I—I don’t know. I—I remember his name and I
remember what he looked like, but I wasn’t friends with him, and I
don’t—I can’t say how well known he was, I guess.
[STATE]: Did you ever meet him anywhere to go have sex
with him?
[K.M.]: No.
[STATE]: Did you ever have sex with P.S.?
[K.M.]: Not that I remember.
We find the record is inadequate for us to resolve the claim on direct appeal
and preserve this claim for possible postconviction-relief proceedings.
7. Comments on the defendant’s failure to testify
Muehlenthaler also asserts the State made improper comments in its
closing argument on his failure to testify or produce evidence during the trial. He
contends the comments by the State implied he should have called witnesses to
rebut the State’s assertions and thus the comments amounted to a shifting of the
burden of proof onto him. The record reflects that during closing argument, the
State argued:
So now we’re going to go back to [K.M.] trusted him. She talked
about all of these things. In a normal relationship, ladies and
gentlemen, this teacher who didn’t have a counselling certificate,
who didn’t have knowledge, who didn’t have training, who was only
part-time could have directed this young woman to a counselor, to a
therapist, could have picked up the phone and called her parents.
Did you hear of any of that happening? You didn’t.
Muehlenthaler’s counsel did not object.
It is the State who “bears the burden of proof in criminal cases.” State v.
Hanes, 790 N.W.2d 545, 556 (Iowa 2010). The State may not “attempt to shift the
burden to the defense to call the witnesses or to suggest the jury could infer from
the defense’s failure to call the witnesses that they would not have said anything
helpful to the defense.” Id. at 557. Further, the “federal constitution prohibits a
18
prosecutor from commenting on a defendant’s failure to testify in his or her own
behalf.” State v. Bishop, 387 N.W.2d 554, 562 (Iowa 1986). The State may not
make either direct or indirect comments on a defendant’s silence. Id.
To establish error, a “defendant must show (1) the prosecutor’s conduct or
remarks were improper, and (2) this misconduct prejudiced defendant’s substantial
rights causing the defendant to be deprived of a fair trial.” Id. at 562–63. “To
determine whether the [State]’s remarks were improper, we consider whether ‘the
prosecutor manifestly intended to refer to the defendant’s silence, or [whether] the
jury would “naturally and necessarily” interpret the statement to be a reference to
the defendant’s silence.’” Id. at 563 (quoting State v. Hutchison, 341 N.W.2d 33,
39 (Iowa 1983)). Further, “we will not find that the prosecutor manifestly intended
to comment on defendant’s right to remain silent when an equally plausible
explanation exists for [the State’s] comments.” Id. However, “[a] prosecutor may
properly comment upon the defendant’s failure to present exculpatory evidence,
so long as it is not phrased to call attention to the defendant’s own failure to testify.”
Id. (quoting United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984)).
On our review, we find the State’s statement advanced its arguments that
Muehlenthaler did not report or direct K.M. to speak with anyone about the issues
she shared regarding her family and self-esteem issues, which he claimed he had
reported to school officials. We do not find the statements were improper as the
remarks did not shift the burden of proof or refer to Muehlenthaler’s decision not
to testify. Therefore, counsel was not ineffective for not objecting.
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B. Garrity violation
Muehlenthaler finally claims the district court erred in allowing statements
he made during a meeting with school officials on August 30, 2016, based upon a
Garrity violation. He argues the administration’s investigation began on August
29, therefore any statements made during and after the August 30 meeting were
inadmissible as he was not warned about the consequences of his answers and
was not told he had a choice on whether or not to answer. Because of the
constitutional nature of this claim, our review is de novo. See State v. Neiderbach,
837 N.W.2d 180, 190 (Iowa 2013).
During the hearing on the motion in limine, the defense moved to exclude
all statements he made to school officials before he was given a Garrity warning
on September 15. The court initially determined that any conversations between
Muehlenthaler and school administration after September 15 were inadmissible
under Garrity. However, after further discussion with counsel, the court clarified
its ruling and held that the determining date for the admissibility of conversations
between Muehlenthaler and school administration would be when Muehlenthaler
was informed he was being placed on administrative leave.
During Wright’s testimony, she testified she received a report during the
evening of August 29 from the high school principal of an alleged inappropriate
relationship Muehlenthaler had at his previous school. She characterized the
meeting as informal and she went into the meeting without much information as
the allegation was anonymous. She testified that she set up the meeting with
Muehlenthaler and the principal for August 30 during the second period of the
school day in the principal’s office. She further testified that at the beginning of
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this meeting, she informed Muehlenthaler of the allegation and asked if he knew
anything about it. She identified that because the allegation was initially
anonymous, it did not have much credibility at that point and so the meeting was
about just finding out what Muehlenthaler might know about the situation. At that
point, Muehlenthaler offered that it must have been “his high school helper”
because she tried to “get close to him, and it was really weird situation, and he was
uncomfortable with the situation.” Muehlenthaler named the student helper and
told the officials that he had reported the situation to two school officials. She
testified to the follow-up questions she asked in response to Muehlenthaler’s
statements and that during their conversation, Muehlenthaler did not act surprised
about the allegation and was not upset. At the end of the meeting, Muehlenthaler
went back and taught his classes for the remainder of the day. At approximately
3:10 p.m., ten minutes before the end of the school day, Muehlenthaler was
informed he was being placed on paid administrative leave and was sent home
pending the outcome of the inquiry. Wright testified that she considered the
investigation began on August 31, after K.M. called and the complaint was no
longer anonymous.
The Fifth Amendment to the United States Constitution provides: “No
person . . . shall be compelled in any criminal case to be a witness against himself.”
This amendment “applies to the State of Iowa through the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.” State v. Iowa Dist.
Ct., 801 N.W.2d 513, 517 (Iowa 2011). As a general rule, compulsion is present
when the State threatens to inflict “potent sanctions” unless the constitutional
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privilege is waived or threatens to impose “substantial penalties” because a person
elects to exercise that privilege. Id. at 518.
In Garrity, that threat was the loss of employment as police officers were
investigated for allegedly fixing traffic tickets. 385 U.S. at 494. Before the officers
were questioned, each was warned that anything they might say could be used
against them in possible criminal proceedings and that they had the right to remain
silent if their disclosure would tend to incriminate them, but if they refused to
answer, they would be subject to removal from their jobs. Id. The officers
subsequently answered questions without a grant of immunity and some of their
responses to the investigator were used against them in subsequent criminal
proceedings. Id. at 495. The Supreme Court noted:
The choice given petitioners was either to forfeit their jobs or to
incriminate themselves. The option to lose their means of livelihood
or to pay the penalty of self-incrimination is the antithesis of free
choice to speak out or to remain silent. That practice, like
interrogation practices we reviewed in Miranda v. State of Arizona, is
“likely to exert such pressure upon an individual as to disable him
from making a free and rational choice.” We think the statements
were infected by the coercion inherent in this scheme of questioning
and cannot be sustained as voluntary under our prior decisions
....
We conclude that policemen, like teachers and lawyers, are
not relegated to a watered-down version of constitutional rights. . . .
We now hold the protection of the individual under the Fourteenth
Amendment against coerced statements prohibits use in subsequent
criminal proceedings of statements obtained under threat of removal
from office.
Id. at 497–98, 500 (citations omitted). Penalties are “not restricted to fine or
imprisonment.” Spevack v. Klein, 385 U.S. 511, 515 (1967). “It means . . . the
imposition of any sanction which makes assertion of the Fifth Amendment privilege
‘costly.’” Id. (quoting Griffin v. California, 380 U.S. 609 (1965)). “The threat of [loss
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of licensure] and the loss of professional standing, professional reputation, and of
livelihood are powerful forms of compulsion to make a [teacher] relinquish the
privilege.” Id. at 516.
Here, the record does not suggest that Muehlenthaler spoke with school
officials on August 30 based upon a belief that his employment was at risk unless
he gave a statement. The meeting during which Wright inquired about the
allegation was informal. Additionally, she testified that the allegation initially had
little credibility since it was anonymous at that point and because she had little
information, her initial inquiry was void of detail. Her subsequent questions to
Muehlenthaler were based upon his voluntary responses. Further, after the
meeting concluded, Muehlenthaler was allowed to return to teach the remainder
of the day. School officials informed Muehlenthaler of his administrative leave near
the end of the school day, not during or immediately following the morning meeting.
We find no Garrity violation occurred as the “record before us contains no proof of
threatened sanctions, direct or implied” during the August 30 meeting. State v.
Trigon, Inc., 657 N.W.2d 441, 446 (Iowa 2003).
IV. Conclusion
We find two of Muehlenthaler’s four claims were not impermissible backdoor
hearsay therefore defense counsel was not ineffective for failing to object. We
also find the State was entitled to redirect examination of a police detective on
DNA evidence and the examination was properly within the scope of the defense’s
cross-examination. Further, to the extent her testimony might be considered
expert testimony, it was based on her training and experience and was limited in
scope, therefore defense counsel was not ineffective for failing to challenge expert
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testimony. We also find the State’s statements did not shift the burden of proof to
Muehlenthaler or refer to his decision not to testify, therefore his trial counsel was
not ineffective for failing to object. We preserve the remainder of Muehlenthaler’s
claims of ineffective assistance of counsel as we find the record inadequate to
address the issues. We find no Garrity violation.
AFFIRMED.